High Court Division
(Civil Appellate Jurisdiction)
Md Anwarul
Haque J
AKM Shahidul
Huq J
Sadharan Bima Corporation ……..
Plaintiff Appellant
vs
Ceylone Shipping Corporation and others ………. Defendant-Respondents*
Judgment
October 9th,
2012.
Damage
No damage is found to have been occurred during the course of carrying of the goods for which defendant No.1 and 2 as a carrier can be held responsible. .. …. (10)
Tafilur Rahman with Sk Taimur Reza Hassan with Sufia Ahmed, Advocate-For the Plaintiff -Appellant.
ABM Golam Mostafa with Md Ohiullah, Advocate-For the Defendant-Respondents.
Judgment
Md Anwarul Haque J: This appeal, preferred by plaintiff-appellant, Sadharon Bima Corporation of Money Suit No.123 of 1994, is directed against the judgment and decree passed by the then learned subordinate Judge, now Joint District Judge, 3rd Court, Chittagong on 27-3-1996 and 5-6-1996 respectively. In fact, the then subordinate Judge dismissed the suit filed by plaintiff No.1 Eastern Cables Limited and plaintiff No.2 Sadharon Bima Corporation who has subsequently been transformed from defendant No.3 with a positive observation that the claim of damage of machinery’s parts carried by defendant No.1, the present respondent, was not occurred during the course of carrying goods from port of embarkation and delivery of the same in the port of Chittagong.
2. Being aggrieved by and dissatisfied with the impugned judgment and order of dismissal passed by the court below plaintiff No.2, Sadharon Bima Corporation has preferred this appeal alleging inter alia that since damage is found to have caused as per survey report Ext. 1 and 1(Ka) during the course of carrying imported goods by defendant No.1 and damage as caused is to be compensated by the carrier defendant No.1 and the agent of defendant No.2 Sadharon Bima Corporation as a Insurer has already paid such claim of the plaintiff No.l which is now payable to the Sadharon Bima Corporation by the carrier defendant No 1.
3. In short, the case of the plaintiff-appellant is as follows:
Plaintiff No.1 opened LC in order to import machineries and parts of machineries from Germany and accordingly imported goods were shipped in a vessel known as ‘MV Lanka Aruna’ in order to transport from Hamburg, West Germany to, Chittagong sea port which was arrived on 11-12-89 and delivered to the port authority since neither plaintiff nor his CRF agent received the goods on the arrival of the ship ‘MV Lanka Aruna’. However at the initial stage it was delivered to port authority and C&F agent of plaintiff No.1 who received it from the port authority and asked defendant No.1 on 1-1-90 for joint survey with an apprehension and possibility of damage of imported parts of machineries but ultimately defendant No.2 did not pay heed to it and C&F agent of the plaintiff No.1 took delivery of the goods on 2-1-1990 in presence of the representative of the Port Authority and plaintiff’s Engineer. Ultimately on physical verification survey was conducted by National Cargo Surveyor who identified the cause of damage “Exhuast Box and its base for bolting”. It was again surveyed by M/s Atlantic Surveyors who also filed report subsequently Ext.2 and claim amount was realized from plaintiff No.2 which was under Insurance Policy and the right of plaintiff No.1 also handed over to plaintiff No.2, Sadharon Bima Corporation to run the suit on receipt of the payment of claim amount allowing to step into the shoes of the plaintiff No.1 on the basis of “subrogation”.
4. However, considering both the parties’ case as made out in the pleading and the evidence of both orals and documentary; the court below has dismissed the suit stating that the survey report was made beyond the knowledge of the carrier, the defendant Nos.1 and 2 and also no damage was found to be caused during the course of carrying the imported goods rather it is evident that after arrival of such goods damage may be caused during the course of carrying the same to the Wire house of the plaintiff No.1; as such carrier, defendant No.1, can not made responsible and ultimately dismissed the suit on the ground as discussed in the judgment which is very lucid one.
5. Mr Md Tofailur Rahman the learned advocate appearing on behalf of the plaintiff appellant No.2 has brought to our notice that on payment of claimed amount to plaintiff No.1, importer, the defendant No.4 has transformed himself as plaintiff No.2 under section 135A of the Transfer of the Property Act by way of sub-rogation who is entitled to realize the compensation if it is proved that damage as alleged by plaintiff No.1 in the machineries is found to have been occured during the course of carrying by Ship belonging to the defendant No.1. The learned advocate clearly admits that though at the initial stage defendant No.4, the present plaintiff No.2 and the appellant did not agree to pay the claimed amount against the Marine Insurance policy but subsequently having been satisfied he paid the entire amount to the plaintiff No.1 who has also left the suit even without being examined as PW 1. Ultimately one Md. Mojibur Rahman has been examined as PW 1, being an employee of the Sadharon Bima Corporation to support the case of the plaintiff as made out in the plaint.
6. On the other hand, defendant No.1 has not examined any witness in support of his case rather he has filed a series of documents Ext. Ka . Gha in support of his defence.
7. Mr Md Ohiullah the learned advocate appearing on behalf of the defendant Nos.1 and 2, the present respondent has drawn our attention in the paragraph 6 of the plaint where it has clearly been stated that the very report made by National Cargo Surveyors Ext. I and Atlantic Surveyors Ext. l(ka) clearly go to say that the imported. machineries were subject matter of damage at the time of transportation from Chittagong Port to Ware house of the plaintiff; as such defendant Nos.1 or 2, being a carrier cannot be made responsible to pay any damage for alleged negligent handling during the course of carriage by sea. Moreover, two survey reports Ext. 1 and l(ka) do not stand to speak in favour of causing service of notice upon the carrier defendant Nos.1 and 2 in order to make a joint survey; as such those survey reports will not go to identify the damage alleged to have been caused during the course of carriage of the goods. The survey reports Ext. 1 and 1(ka) also clearly stand to support this contention for non-service of the summon upon the carrier. Moreover, the survey reports which were done in the Jetty of the Chittagong Port Authority and report prepared on the arrival in the Wire house of the plaintiff are found to be different one; as such this decision of the court below over the matter that damage may be caused during the course of transportation from Jetty to Ware house deserves no interference.
8. It will not be out of place mention that plaintiff No.2 on 9-10-90 himself admitted that at the time of delivery, the imported goods was found in healthy and sound condition which was communicated to the plaintiff No.1 M/s Eastern Cable Ltd. on 9-10-90 under his Office Memo No.CML-88/BO/90/1614 (Ext. 11 Kha); as such there can be no scope at this moment to say that imported goods were found damaged for alleged mishandling or negligent handling during the course of carriage. It will be clear if we go to quote this recital of the letter address to M/s Eastern Cable Ltd. by the Manager of the plaintiff No.2.
9. Let us quote which is as follows:
m~Î wmGgt Gj-88/weI/90 ZvwiLt 9-10-1990Bs
†gmvm© Bóvb© †Kejm wjt
c‡Z½v,
PÆMÖvg|
BD`vDU wcÖRywWm
welqt exgv cÎ bs-wmwUwR/mvU©/‡dK&&m-303/9/89 I GbwWvm©‡g›U bs wmwUwR/Beb‡WwU/‡dK&&m-3-1-90 Gi Awa‡b †bŠ `vex cÖms‡M| RvnvR-esKv Aiebv|
Avcbvi Dc‡ivK&&Z `vexi bw_gvjv Avgiv Avgv‡`i PÆMÖvg Awdm nB‡Z cvBqvwQ| bw_ cixÿv‡šÍ †`Lv hvq †h, Avcbv‡`i Avg`vbxK…Z cY¨ `yB ¯’v‡b A_©vr PÆMÖvg e›`‡i I Avcbv‡`i wbR¯^ ¸`v‡g Rixc Kiv‡bv nBqv‡Q| PÆMÖvg e›`‡i AbywôZ Rixc wi‡cvU© nB‡Z †`Lv hvq †h, RvnvR nB‡Z cb¨ fvj Ae¯’vq AeZib Kwiqv‡Q| Z‡e RixcKvix D‡jøL Kwiqv‡Qb Exhaust box and its base for bolting broken otherwise found same hvnv LyeB mvgvb¨ ÿwZ ewjqv Avgiv g‡b Kwi| Aciw`‡K ¸`v‡g AbywôZ Rixc wi‡c©vU nB‡Z †`Lv hvq †h, †gwkbwU fvsMv Ae¯’vq cvIqv wMqv‡Q Ges Dnv †Kvb Kv‡R Avwm‡ebv| ÿwZi Kvib Poor &/or rough handling in transit ewjqv D‡jøL Kiv nBqv‡Q| GB ÿwZ e›`i nB‡Z ¸`v‡g Avbvi mgq nBqv‡Q ewjqv Avgv‡`i avibv Ges Dnvi Rb¨ Avf¨šÍixb cwienbKvixB `vqx| e›`i nB‡Z wKfv‡e D³ ‡gwkb Avbv nBqvwQj †m Z_¨ bw_‡Z bvB|
AZGe, Avgv‡`i cieZx© c`‡ÿc MÖnbv‡_© wbgœwjwLZ Z_¨/`wjjvw` mË¡I AÎ Kvh©¨vj‡q †cÖi‡bi Rb¨ Avcbvw`M‡K Aby‡iva Kiv hvB‡Z‡Q|
1| e›`i nB‡Z †h gva¨‡g Av‡jvP¨ ‡gwk‡b Avbv nBqv‡Q (wbR¯^ cwienb †hv‡M bvwK Ab¨ †Kvb cwienb †hv‡M) Dnvi `wjjvw` mn cÖgvb|
2| Z…Zxq c‡ÿi cwienb †hv‡M Avbv nBqv _vwK‡j Zvnv‡`i wbKU †Kvb `vex †ck Kiv nBqv‡Q wKbv, Kiv nBqv _vwK‡j Dnvi eZ©gvb Ae¯’v (`wjwjK cÖgvb mn)|
ab¨ev`v‡šÍ
Avcbvi wek¦¯Í
¯^vt A¯úó
g¨v‡bRvi (`vex)|
10. On the face of the report, admittedly made by the plaintiff No,2, we also find no way but to echo the voice of the court below about the facts as has been proved that no damage is found to have been occurred during the course of carrying of the goods for which defendant No.1 and 2 as a carrier can be held responsible.
11. In the light of the above observation and discussion we are of the opinion that this appeal bears no substance and accordingly we find no scope to interfere in the decision of the courts below.
12. In the a result, the appeal is dismissed on contest with cost of Taka 5,000 (five thousand) only. The judgment and decree of the court below is hereby affirmed.
13. Let a copy of the judgment and order along with LCR be sent to the court below at once for information and necessary action.
