National Textile Corporation Vs. Pakistan National Shipping Corporation Etc. - Court Judgment

Excerpt:
- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - 2. defendants claimed to have discharged the entire cargo in good condition and pleaded that shortage or damage, if any, might have been caused at the hands of the port authorities, due to the delay in taking delivery. 5. if the cargo was discharged to the port authorities in proper order and condition, the position of the carrier will be safe. the carrier is bound to exercise due diligence to make all parts of the ship, in which the goods are carried, fit and safe for reception, carriage and preservation. if so, it is not possible to say that the carrier discharged the burden of establishing that the cargo was discharged in good condition.padmanabhan, j.1. first defendant is the ship owner and carrier of a consignment of 600 bales of cotton from karachi to kochi under ext. a1 bill of lading on 30-9-1981. the vessel reached kochi port on 6.11.1981 and the goods discharged by the second week of november. first plaintiff is the consignee and second plaintiff is the insurer. second defendant is the agent of the first defendant. from the port, the goods were delivered in lots to the agent of the first plaintiff from november onwards. the last lot was made available for delivery after fumigation on 9.1.1982. at (hat time, 12 bales were found damaged and re-packed in gunny bags. second defendant was informed and a joint survey conducted by the first plaintiff and second defendant. shortage of 1, 465.59 kgs. worth rs. 22, 086.00/- was found. second plaintiff settled the claim for rs. 21, 738.40/- with the first plaintiff. suit is for realisation of that amount with interest and cost.2. defendants claimed to have discharged the entire cargo in good condition and pleaded that shortage or damage, if any, might have been caused at the hands of the port authorities, due to the delay in taking delivery. they denied liability and pleaded limitation.3. shortage and damage found at the time of survey were not in dispute before the trial court and it was so found. the suit was dismissed for the sole reason that it is not clear whether shortage or damage occurred during carriage or while in the custody of the port authorities. plaintiffs are the appellants.4. it was pw 3 who went for taking delivery. his evidence, taking long with exts.a5 and a7 survey reports, establishes the shortage and damage at the time of delivery and it is not in dispute also. he said that delay in taking delivery was not caused by the consignee and it was only due to the time taken for fumigation, which is necessary before delivery. along with fumigation certificate alone customs clearance will be given. that is also not in dispute and there is no counter evidence also. as held by a full bench of this court in the decision in general traders limited v. pierce leslie (india) ltd. 1986 klt 1192 discharge means effective and actual discharge in such a reasonable manner as to enable the consignee to take delivery of the goods. but the question is whether the discharge of the goods to the port authorities itself will automatically exonerate the carrier from liability.5. if the cargo was discharged to the port authorities in proper order and condition, the position of the carrier will be safe. thereafter, if the damage or shortage occurs, the port authorities alone could be held responsible. according to regulation 85 of the cochin port and dock regulations, issued under the authority of the major port trusts act, broken or damaged condition of the cargo will have to be noted by the port authorities. claim against the port trust will not lie unless notice of loss or damage has been given within seven clear working days from the date of taking charge.6. but the carrier, as custodian of the cargo entrusted for shipment and delivery, is having heavy responsibilities in relation to it. the carrier is bound to exercise due diligence to make all parts of the ship, in which the goods are carried, fit and safe for reception, carriage and preservation. he must properly and carefully load, handle, store, carry, keep, care and discharge the goods carried. exceptions to these liabilities provided in the rights and immunities in art. iv are subject to the above duties and liabilities. neither the carrier nor the ship shall be responsible for the loss or damage arising or resulting from any cause without the actual fault or privity of the carrier or without the fault or neglect of the agents or servants of the carrier. but, in such cases also, the initial burden is on the carrier, who claims the benefits of the exception, to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the quarried contributed to the loss or damage.7. the contention by the first respondent is that the entire goods were discharged without any damage or shortage and damage or shortage, if any, might have happened at the port such an allegation of possibility will not absolve the carrier. the carrier will have to establish initially that the entire goods were discharged in proper condition without any fault or privity of the carrier or fault or neglect of the agents or servants. unless that burden is discharged, the liability of the carrier and their agents will continue until actual delivery is given to the person who produces the bill of lading. primary burden of proving that the loss or damage occurred on account of an unexpected cause falls squarely upon the carrier who seeks to exempt himself from liability. once he has discharged that burden, the onus then would shift to the cargo owner to show that the carrier is not entitled to the benefit of the exception. (see cd. jonar and sons (p) limited v. pierce leslie and co. 1970 klj. 260 and collis line private limited v. new india assurance co. limited 1981 klt 784.8. the fact that there were damage and shortage is established beyond doubt. as to how this happened is not in evidence. the appellants and their witnesses cannot explain this because the information is beyond their reach. for the purpose of shifting the responsibility to the port authorities, the carrier will have to discharge the initial burden. the port trust is not a party and nobody from the port trust was examined by either side. the carrier cannot blame the consignee for that because the burden is on him. the only witness examined is dw1 and the documents are exts. b1 to b12. they are the tally sheets prepared by the port authorities at the time of discharge. letters 'bk' and 'd' were noted in it as against some lots. according to the appellants, these letters represent 'breakage and damage', but the argument was denied. nobody said what it is and dw 1 was not asked anything about it by either side. nobody from the port was also examined. if so, it is not possible to say that the carrier discharged the burden of establishing that the cargo was discharged in good condition.9. even conceding that it is established that no damage or shortage was noted by the port authorities as required, the burden of the carrier cannot be taken as discharged. dw 1 said that the vessel carried 7, 000 bales of cotton, but, according to pw 3, it is only 6, 000 bales. anyhow, there is no case that it is less than 6, 000 bales. other than exts. b1 to b12, no other tally sheet was produced. the consignment to the first appellant is 600 bales. exts. b1 to b12, according to the appellants, take in only 427 among them, but the respondents contend otherwise. anyhow, it is not established that all the bales are there. dw 1 has not stated anything about that. it was the duty of the carrier to prove this and he cannot blame the consignee for not asking him about it in cross examination when his chief-examination is silent on that aspect. the trial court was, therefore, not justified in exonerating the carrier, who did not discharge his initial burden. the suit had to be decreed since the quantum is not in dispute and it is amply proved.the appeal is allowed. decree and judgment are set aside. there will be a decree in favour of the second appellant against the first respondent for realisation of rs. 21, 738.40/- with 6% interest from the date of suit till realisation and costs in both the courts.