Joseph v. The F A C T Ltd Alwaye — 1964 DIGILAW 280 (KER)

JUDGMENT T.C. Raghavan, J. 1. The appellant, who claims that he is only a private carrier, undertook to transport the fertilisers manufactured by the respondent company at their works at Alwaye to their depots at Alleppey and Kottayam by water at specified rates. On 21st August 1958 a barge loaded with 30 tons of ammonium sulphate was being transported to the depot at Kottayam towed by a tug: and at about 7-30 in the evening the barge, en route, sank at the north western corner of the Willingdon Island and the cargo was lost. The company thereafter set off Rs. 10,590/- due from them to the appellant, towards the price of the ammonium sulphate lost. The appellant claimed in the suit that the respondent was not entitled to do so; and this contention was negatived by the lower court. The ground on which the lower court rejected the claim was that the appellant's workers on the barge were negligent in that they overloaded the barge; in that they deviated from the normal route along the Ernakulam Channel to the Mattencherry Channel, which was dangerous, more so during the monsoon season; in that they did not provide the full complement of crew for the barge; and in that they did not provide the vessel with proper lights. In appeal the appellant disputes these findings. 2. The respondent claimed that the appellant was a public carrier and that he was liable for damages if the cargo entrusted to him was lost in transit. The company contended further that the onus of proving that there was no negligence on the part of the appellant was on him; and that once the entrustment of the cargo and the loss of it were established, the negligence of the carrier was to be presumed, unless he established that the accident was due to causes beyond his control like vis major or act of God. They pleaded in their written statement that the accident was due to the negligence of the workers of the appellant on the barge in that they overloaded it and in that they chose the more dangerous route along the Mattancherry Channel during the monsoon season instead of the route along the Ernakulam Channel. They did not however plead that the crew was insufficient or that the lights on board the barge were inadequate. They did not however plead that the crew was insufficient or that the lights on board the barge were inadequate. But, in the course of evidence these grounds also emerged and the respondent relied on these factors as well. 3. The lower court rejected the claim that the appellant was a public carrier: it held that he was only a private carrier. Still, the lower court held that the appellant was liable as a bailee under S.151 and 152 of the Indian Contract Act. It held further that all the four grounds of negligence mentioned above were established. In that view it was that the lower court rejected the claim of the appellant for Rs. 10,590/-. 4. The arguments of the counsel on both sides centred round the question whether there was negligence on the part of the carrier, the appellant. It is true that the insufficiency of crew and the inadequacy of lights in the barge were not pleaded in the written statement. Still, if the onus is on the appellant to establish that there was no negligence on his part and that the sinking of the barge was due to reasons beyond his control, and if it also emerges that the crew was insufficient and the lights inadequate, then the respondent is entitled to rely on these factors as well to point out negligence on the part of the appellant. It cannot be said, even on the claim of the appellant that he is only a private carrier, that he is not a bailee and that he is not bound to exercise due care and proper diligence in the transport of the cargo entrusted to him. Also once the contract of bailment is proved and there is the entrustment of the goods with the bailee, the loss of the subject matter of the bailment is itself prima facie evidence of the negligence of the bailee. We do not think there can be any doubt regarding these propositions. If necessary, Province (State) of Madras v. I. S. and C. Machado ( AIR 1955 Mad. 519 ) and P. Rangaraju v. Mulhukrhhna Iyengar ( AIR 1962 Mad. 244 ) may be referred to. We do not think there can be any doubt regarding these propositions. If necessary, Province (State) of Madras v. I. S. and C. Machado ( AIR 1955 Mad. 519 ) and P. Rangaraju v. Mulhukrhhna Iyengar ( AIR 1962 Mad. 244 ) may be referred to. Even if the two grounds relating to insufficient crew and inadequate lights cannot be relied on by the company, still, if the appellant does not establish that he was not negligent for the other two reasons, he is not entitled to succeed in the appeal. Therefore, we shall consider the other two grounds, which, according to us, are the main grounds in the case. 5. Regarding the question whether the normal and safer route is along the Ernakulam Channel on the east of the Willingdon Island between the Island and the Ernakulam coast or whether it is along the Mattancherry Channel on the west of the Willingdon Island between it and the Mattancherry coast, there is only oral evidence available. The deviation of route as a ground of negligence does not appear in the early part of the correspondence between the parties and it appears for the first time in the written statement of the company. For this reason the learned advocate of the appellant requests us to treat this only as an after thought. Of course, he advances the same plea regarding the other ground relating to overloading as well. The objection of overloading also appears for the first time only in the written statement of the company. We may observe that this plea of after thought may not be treated alike in considering both the above ground's of deviation of route and of overloading. Overloading is a question which can be considered on the basis of definite documentary evidence; whereas, the case of deviation from the normal route depends entirely on oral evidence. The plea that it is an after thought may have some force on the question of deviation; but it will not have any force in considering the question of overloading. Therefore, we propose to consider the question of overloading primarily and the other question incidentally. 6. The appellant produced Ext. P. 17, which is said to be the duplicate of the port licence of the barge involved in the accident. He also produced Ext. Therefore, we propose to consider the question of overloading primarily and the other question incidentally. 6. The appellant produced Ext. P. 17, which is said to be the duplicate of the port licence of the barge involved in the accident. He also produced Ext. P. 1, which is claimed to be the duplicate of the canal licence of the same barge. The respondent accepted Ext. P. 17; but the company disputed that Ext. P. 1 related to the same boat. P. W. 1 is the Canal Officer at Mattancherry, who issued the duplicate, Ext. P. 1. Ext. P. 1 is a true copy of the counterfoil of the original licence issued by the predecessor in office of P. W. 1. In view of the dispute regarding the genuineness of the original of Ext. P. 1, we called for the book of counterfoils containing the original. At page 32 of the book appears the original of Ext. P. 1 and we have marked it as Ext. P. 1 (a). 7. The description of the vessel in Ext. P. 17 is "Cargo Boat No. 391". The place where it was built is shown as Candle Island; and the name of the owner of the vessel is M/s. Philip Joseph, the appellant. The carrying capacity of the vessel is shown as 29 tons in fine weather season and 25.22 tons in rough weather season. The licence also indicates that rough weather season is from 16th May to 15th September; and it further shows that the number of crew is one tindal and three lascars in both fine weather and rough weather seasons. 8. In Ext. P. 1 the description of the vessel is "Thoni C. P. No. 391". The place where the vessel was built is shown as Kottayam and the name of the owner as Sri. Chacko Chandy, Karimpil, Chengalam, Kottayam. Measurements like length, breadth, etc. shown in Ext. P. 1 are different from those shown in Ext. P. 17. The maximum load allowed under this licence is 36.21 tons. 9. The case of the appellant is that the tonnage allowed under the port licence of a vessel is lower and the tonnage allowed for the same vessel under the canal licence is higher. According to him, this is due to the difference in the mode of measuring length, breadth, depth, etc. of the vessel and also in calculating the tonnage. The case of the appellant is that the tonnage allowed under the port licence of a vessel is lower and the tonnage allowed for the same vessel under the canal licence is higher. According to him, this is due to the difference in the mode of measuring length, breadth, depth, etc. of the vessel and also in calculating the tonnage. We asked the counsel of the respondent to produce a few canal licences and the corresponding port licences of vessels in their employ for comparison; and a few of them were produced From them we have gathered the impression that the canal tonnage is usually higher than the port tonnage for the same vessel. But we have not been able to gather any definite proportion between them. The argument of the counsel of the appellant is that the vessel concerned was carrying cargo from Alwaye to Kottayam and that in such a case it is only the canal licence that is material in considering the question whether the vessel was over loaded or not. What appears from the evidence is that for passing through harbour waters no separate port licence is necessary, unless the vessel is delivering cargo into steamers or removing cargo from them. Therefore, the argument proceeds, the barge was not overloaded, if the tonnage shown in the canal licence is considered the proper tonnage. We agree that if Ext. P. 1 is established to be the canal licence of the barge, the appellant might succeed in establishing that there was no overloading. But, we are afraid that the appellant has not established that Ext. P. 1 relates to the vessel. 10. P. W. 1 says that vessels having port licences are described only by their C. P. Number, by which expression he means the Cochin Port registration number, when they are given canal licences. That is falsified when we scrutinise the book of counterfoils brought before us. There are several vessels having port licences which are not described as "C. P. No. so and so" in their canal licences. The sole vessel which has this description is the one shown by the original of Ext. P. 1. Even in this case the expression "C. P. No. 391" appears to be an insertion in a slightly different ink. There are several vessels having port licences which are not described as "C. P. No. so and so" in their canal licences. The sole vessel which has this description is the one shown by the original of Ext. P. 1. Even in this case the expression "C. P. No. 391" appears to be an insertion in a slightly different ink. The ink in this has spread and it appears even on the reverse of the paper, whereas the ink in the writing in the other parts of Ext. P. 1(a) has not so spread. The description of vessels in the book of counterfoils is either Kettuvallam, Kettuvanchi, Barge or the particular names of the vessels like M. B. Rambha, M. T. Charity, etc. Only three vessles have the description Thoni and two of them have that word alone. The third one is the subject matter of Ext. P. 1(a), where the expression C. P. No. 391 is also added. These three vessels alone have cut numbers in the V K series, the cut numbers being 2476 V K, 2984 VK and 1985 VK. Two of these vessels appear to have been built at Kottayam and they have been registered in the name of Sri Chacko Chandy. In the case of the third, the column relating to the place where the vessel was built is left blank. None of the three vessels having cut numbers in the VK series appears to have been built at Candle Island. The appellant's explanation for the disparity in the names of the owners is that the canal licence was taken in the name of his brother inlaw, Chacko Chandy. Why the vessel already registered with the Port authorities in the appellant's name should be registered with the Canal Officer in the name of his brother inlaw is not explained; nor is Chacko Chandy examined in the case. Further, the place where the vessel was built is Candle Island in Ext. P. 17 and Kottayam in Ext. P. 1. No acceptable explanation is forthcoming for this disparity. P. W. 1 says that he issued the duplicate, because somebody from the office of the appellant at Cochin came and asked for a duplicate. The witness did not even take a petition from him, though he says he took the fee for the duplicate! P. 1. No acceptable explanation is forthcoming for this disparity. P. W. 1 says that he issued the duplicate, because somebody from the office of the appellant at Cochin came and asked for a duplicate. The witness did not even take a petition from him, though he says he took the fee for the duplicate! P. W. 1 admits that when a boat already registered with the Port authorities is being registered with the Canal authorities, the number of the earlier port licence would be checked. If so, it is not explained how "C. P. No. 391" appears in Ext. P. 1(a) because the boat was registered as "Cargo Boat No. 391" and not as "C. P. No. 391". To say the least, the evidence of P. W. 1 is thoroughly unconvincing and even suspicious. 11. At one stage of the arguments we suggested to the counsel of the appellant that he produced the current licences, both canal and port, of this vessel or its licences or any earlier period. The counsel took time and reported subsequently that the vessel was not registered with the Canal authorities after this incident. According to him, the vessel is now being used without a carnal licence. If this explanation is correct we are very reluctant to accept that the vessel had a canal licence during the relevant time. P. W. 1 says that a vessel having no canal licence cannot go beyond the harbour waters. If so, the explanation that the appellant is not having a current canal licence for this boat is difficult of acceptance; and then we are entitled to presume that if the current canal licence or at least the canal licence relating to any period is produced it will be adverse to the interest of the appellant. 12. Therefore, we are in agreement with the learned Subordinate Judge that Ext. P. 1 does not relate to the vessel in question. The consequence is we are left with Ext. P. 17 to determine the carrying capacity of the vessel. It shows that in rough weather season the vessel is to carry only 25.22 tons; and that the latter half of August is rough weather season. Even for fine weather season the tonnage is only 29 tons; and the vessel loaded with 30 tons was overloaded even for fine weather. P. 17 to determine the carrying capacity of the vessel. It shows that in rough weather season the vessel is to carry only 25.22 tons; and that the latter half of August is rough weather season. Even for fine weather season the tonnage is only 29 tons; and the vessel loaded with 30 tons was overloaded even for fine weather. The conclusion is that the barge was overloaded and that the appellant was negligent in so overloading it. 13. In the background of this finding, if we now consider the question whether the appellant made a deviation from the normal route, what we find is this. Even if the normal route is along the Mattancherry Channel, it is evident from the plan. Ext. D. 7 , and the other evidence in the case, especially the evidence of D. W. 3, the Senior Marine Surveyor, who is a disinterested and competent witness, that the route along the Ernakulam Channel is the safer route. Having overloaded the vessel, the appellant's workmen should have at least chosen the safer route. Instead, they negotiated the deeper channel giving access to ocean going steamers into the harbour and that, of an evening in the monsoon season. This was undoubtedly lack of necessary diligence on their part; and this added to their negligence of overloading. 14. The result is that the lower court is right in holding that there was negligence on the part of the appellant. The appeal is therefore dismissed with costs.