High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08.07.2009CORAM:THE HONOURABLE MR.JUSTICE M.VENUGOPALA.S.No.41 of 2002Board of Trustees of the Port of Madras represented byits Chairman, having his officeat Rajaji Salai, Madras-600 001 .. Appellant/defendant-vs-1. M/s Badrchalam Paper Board Ltd., having their registered office at No.106,Sardar Patel Road Secunderabad-500 003 by their Power of Attorney Agent M/s National Insurance Co.,Ltd represented by its Deputy Manager C.S.Rao having office at 111 Floor Magul's Court, Basheer Bagh Hyderabad2. Messrs. National Insurance Company Ltd having registered office at No.3, Middleton Street, Calcutta-700 071 Regional Office at III floor Mogul's Court, Basheer Bagh Hyderabad by its Deputy Manager C.S.Rao .. Respondents/plaintiffsThis appeal is filed under Section 96 of CPC against theJudgment and Decree dated 19.1.1998 in O.S.No.6203 of 1996 on thefile of VI Additional Judge, City Civil Court, Chennai.For appellant : : Mr.R.KarthikeyanFor respondents : : Mr.Guruswaminathan for M/s Nageswaran & NarichaniaJ U D G M E N T This appeal has been projected by the appellant/defendant asagainst the Judgment and decree dated 19.1.1998 made in O.S.No.6203of 1996 on the file of VI Additional Judge, City Civil Court, https://hcservices.ecourts.gov.in/hcservices/ Chennai in directing the appellant/defendant to pay a sum ofRs.3,61,421/- with interest at the rate of 18% p.a. from the date ofthe plaint till the date of payment and with costs.2. The short facts of the respondents/plaintiffs case are asfollows:The first respondent/first plaintiff a Public Limited Company haspurchased a consignment of 1250 bales of Bleached Sulphate Kenaf Pulpweighing 250 M.Ts. gross and 244.986 M.Ts. air dry nett from M/sPhonaix Pulp & Paper Co, Ltd Bangkok,Thailand as per invoice bearingNo.PP-038/88 dated 2.8.1988 valued C & P US $ 179,207.26. The suitconsignment has been shipped on board the vessel "M.V.OSIPPYANTNITSKY" at Bangkok for carriage by sea and delivery at the Portof Madras. The sea carrier acknowledged such entrustment of the said1250 bales under their clean Bill of Lading bearing No.BMD-801 dated9.8.1988. The said consignment arrived at the Port of Madras on26.8.1988 and berthed on 2.9.1988 at West Quay-3 and commenced thedischarge operations. The appellant/defendant has taken the custodyof 1250 bales as per the details set out below:Date Shift No of Bales 2.9.88 1st 99 Bales " 2nd 149 Bales " 3rd 361 Bales 3.9.88 1st 289 Bales 3.9.88 2nd 352 Bales ------ 1250 Bales ------The delivery of the aforesaid bales to the first respondent/firstplaintiff has commenced on 3.9.88. Out of 1250 bales, 720 Bales havebeen cleared by the first respondent/first plaintiff before 7.9.88.There has been a fire accident on 7.9.88 around 04.30a.m., in thepremises of the defendant from Ammonium Per Sulphate which hasdestroyed/affected the bulp in issue. After the fire accident, 359bales were found sound and they have been removed. Out of theremaining 171 bales, 39 bales have been in a damaged condition and132 bales have been totally destroyed and they have been abandoned.The Agent of the first respondent/first plaintiff on 7.9.88 itselfhas notified the loss and called upon the appellant/defendant toconduct a survey. A claim has been lodged with theappellant/defendant Trust on 9.9.88 . Even on 22.9.88, the appellantTrust has informed about the destruction of 132 bales resulting in atotal loss . Because of the fire that has taken place in theappellant's premises, the first respondent/first plaintiff hasincurred a pecuniary loss of Rs.3,61,421/-in all and the same iscomputed as follows:C.I.F.Madras US $ 179,207 @ Rs.100/- =US $ 6.51 as per forward contractRs.27,52,798.77(A)Clearing and forwarding charges https://hcservices.ecourts.gov.in/hcservices/ in the Port @ Rs.139/- MT for250 Mts. Rs. 34,750.00(B)Inland freight and deliverycharges to Mill @ Rs.221/-M.Ts. Rs. 55,250.00(C)Insurance @ Rs,20/- M.T. Rs. 5,000.00(D) ----------------------Landed cost of the consignment at the Mill Rs. 28,47,798.77 --------------------- Value of the damage1. Value of 132 bales abandoned in Madras Port..(A)+(B)+(D) ----------------x 132 1250 = Rs.2,94,898.15II. Value of 39 bales moved to Bhadrachalam in partially damaged condition = Rs.28,47,798.77--------------------x 39 1250 = Rs.88,851.32(-) Realisable salvage on 39 bales + Rs.2,862/M.T. = Rs.22,323.60- - - - - - - - - - Loss on 39 Bales =Rs.66,527.72- - - - - - - - - -Amount of loss -I & II =Rs.2,94,893.15 =Rs. 66,527.72 ------------------ Rs.3,61,420.87 ------------------As a result of the failure on the part of the appellant/defendant'sTrust or employees to take care of the suit consignment, while beingin their custody, pending delivery, the first respondent/firstplaintiff has suffered a pecuniary loss of Rs.3,61,421/-. The fireought to have taken place as a result of careless negligent actand/or omission on the part of the defendant Trust/their employees instoring the suit consignment along side Ammonium per sulphate, ahighly hazarduous and combustible chemical which has come to theknowledge of the respondents/plaintiffs subsequent to the happeningsof the accident. The appellant's/defendant's Trusthas failed inits statutory obligation and therefore is liable to make good theloss to the first respondent/first plaintiff.3. The consignment in issue has been insured by the firstrespondent/first plaintiff with the second respondent/secondplaintiff Insurance Company as per the policy bearingNo.550300/4302331/88 dated 31.8.88 issued by the SecunderabadDivisional Office. The second respondent/second plaintiff hasconducted a survey at the Port premises before the removal of debristhrough M/s Mehta and Padamsey Surveyors Private Ltd., who has issued https://hcservices.ecourts.gov.in/hcservices/ a certified report dated 2.11.88.4. As per the certified report dated 2.11.88 ascertaining theloss suffered, the second respondent/second plaintiff paid a sum ofRs.4,05,656.63 as per terms and conditions of the policy of Insuranceand has therefore subrogated to the rights of recovery of the firstrespondent/first plaintiff by virtue of a letter of subrogation andpower of attorney executed by the first plaintiff under Section 79 ofthe Marine Insurance Act and to overcome in technical defence, thesuit is filed by the respondents/plaintiffs and further that therespondents have no objection for passing of a decree in favour ofthe second respondent/second plaintiff or in favour of both therespondents/plaintiffs.5. A statutory notice under Section 120 of the Major Port TrustsAct 1963 has been issued on behalf of the respondents/plaintiffs bytheir advocate on 16.2.1989 calling upon the appellant to makepayment of Rs.3,61,421/- within a period of one month from the dateof service of the notice and the appellant/defendant has receivedthe same on 18.2.1989. However, the appellant/defendant has failedand neglected to satisfy the demand of the respondents andtherefore, the suit is laid for recovery of a sum of Rs.3,61,421/-being the landed cost of the consignment destroyed by fire though thesubrogation amount is Rs.4,05,656.63ps along with interest at 18%p.a and costs.6.The appellant/defendant has filed an elaborate writtenstatement among other things mentioned that the vessel M.V."OSIPPYATNISKY" has arrived on 2.9.88 and the appellant has receipted only123 bales of wood pulp out of the manifested quantity of 1250 balesand out of the receipted quantity 319 bales were discharged by thesaid vessel in a damaged condition for which due annotations havebeen made in the tally receipt issued to the steamer agents of thesaid vessel and M/s Gordon Woodroffe Limited, the clearing agents ofthe plaintiffs filed import application dated 3.9.88 for theclearance of the wood pulp and cleared 1118 bales of wood pulpleaving 132 bales uncleared and these 132 bales have been abandonedby the consignee by their telex dated 22.9.88 on the basis that thebales have been damaged beyond redemption/recovery and moreover therehas been a fire accident on 7.9.88 in the shed where the bales inissue have been stacked on landing and the cause of fire has beendue to the consignment of Ammonium Per Sulphate an oxidisingsubstance classified under IMO Class 5.1 which has been discharged indamaged condition ex.vessel M.V."CELJE" on 6.9.88 during night hoursagainst precaution measures and the landing such cargo during nighthours cannot be averted as there has been no prior intimation andmore over in the absence of any caution label or any indication onthe package warning of hazaruous nature of chemical substance,stacking of the aforesaid consignment in the shed where the wood pulpwere also stored cannot be averted either and therefore the fireaccident that has taken place due to the failure and negligence ofthe steamer agent of the vessel M.V."CELJE"to follow precautionarysafety rules etc., https://hcservices.ecourts.gov.in/hcservices/

7. It is the further stand of the appellant/defendant that thewood pulp bales have landed on 3.9.88 and they have been stacked inWest Quay III shed prior to the landing of the consignment ofammonium Per Sulphate which has been discharged on 6.9.88. Inasmuchas there has been no advance intimation from the steamer Agents ofVessel M.V."CELJE" in regard to the landing of oxidising chemicalsduring night hours. Under the circumstance, the appellant/defendanthas acted good faith, received and secured the pallets of ammoniumper sulphate including two pallets that have been discharged indamaged conditions and such prudent act done in good faith cannot beattributed to ,nor construed as failure to discharge its obligationsas a bailee and added further there is no negligence or carelessnesson the part of the appellant/defendant and therefore, theappellant/defendant is not liable to make good the alleged loss.Continuing further, the appellant is neither a party nor a witness tothe survey said to have been conducted at the instance of insurerviz., the second respondent/second plaintiff and as such the surveyreport is not binding on the appellant/defendant.8. A reply has been sent stating that steamer agents of vesselM.V."CELJE" are responsible for the fire accident which has takenplace on 7.9.88 and inspite of the same, the respondents/plaintiffsare not impleaded the agent as a party to the suit and hence the suitis bad for non joinder of proper party. The suit is also barred bylimitation as per Section 120 of the Major Port Trusts Act 1963.Therefore, the suit has to be dismissed with costs.9. The trial Court has framed all together five issues. Beforethe trial Court, on the side of the respondents/plaintiffs witnessesP.W.1 and P.W.2 have been examined and Exs A1 to A18 have beenmarked and on the side of the appellant/defendant, D.W.1 has beenexamined and Exs B1 to B4 have been marked. 10. On an appreciation of oral and documentary evidence andafter scrutinizing the same, the trial Court has ultimately come tothe conclusion that the respondents/plaintiffs are entitled torecovery of a sum of Rs.3,61,421/- and accordingly granted the decreein their favour.11. The points that arise for determination in this appeal are"1.Whether the Steamer agent of Vessel M.V."CELJE"viz., M/s A.S.Shipping Agency Private Limited isa necessary and proper party to the suit?2. Whether the suit is barred by limitation asper Section 120 of the Major Port Trusts Act 1963?3. Whether the respondent/plaintiffs are entitledto claim the suit amount from theappellant/defendant?12. This Court has heard the learned counsel appearing for theparties and noticed their rival contentions. https://hcservices.ecourts.gov.in/hcservices/

13. Finding on Point No.1 :The learned counsel for the appellant/defendant contends that thesteamer agent of vessel M.V."CELJE" viz., M/s A.S.Shipping AgencyPrivate Limited is a proper party for the purpose of adjudication ofthe case and inasmuch as the respondents/plaintiffs have not arrayedit as a proper party the suit as framed is not maintainable in law.Countering the submissions of the learned counsel for theappellant/defendant, the learned counsel for therespondents/plaintiffs submits that the steamer agent of the VesselM.V"CELJE" viz., M/s. A.S.Shipping Agency Private Limited is not aproper and necessary party because of the fact that theappellant/defendant has taken custody of the suit consignmentcommencing by means of delivery as per Ex B1 import tally sheet dated2.9.88 and the delivery has ended on 3.9.88 and therefore if deliveryof the consignment, the responsibility in regard to the suitconsignment is only that of the appellant/defendant and therefore,the appellant is solely responsible for the fire accident that hastaken place on 7.9.88 around 4.30 a.m., and resultantly the suit hasbeen laid claiming a sum of Rs.3,61,421/- only against theappellant/defendant and not against the steamer agent of the vesselM.V"CELJE" viz., M/s A.S.Shipping Agency Private Limited with whomadmittedly, there is no privity of contract between the plaintiffsand the vessel agent. It is true that a Court of Law has inherentpower to add or strike party at any stage. Though the plaintiffs aredominus litus, the Court has a judicial discretion in directing theplaintiffs to implead a person as a necessary and proper party asdefendant. What makes a necessary and proper party is not merely hehas relevant evidence to let in on the subject matter of issuesinvolved but the person to be added must be one whose presence isnecessary as a party. A necessary party is one without whom no ordercan be made effectively. But a proper party is one whose absence aneffective order can be made but whose presence is necessary for acomplete and comprehensive final decision on the questions involvedin a proceeding. After taking custody of the import of cargo and whenthe delivery of the suit consignment has been effected, it is theduty of the appellant/defendant to take proper care in regard to thesafety of the consignment that has arrived and since the negligenceon the part of the appellant/defendant is pleaded and since no reliefis claimed against the agent of vessel and inasmuch as the agent ofthe vessel is not likely to be affected by the result of the case,this Court is of the considered view that the steamer agent of thevessel M.V."CELJE" viz., A.S.Shipping Agency Private Limited isneither a necessary nor a proper party for adjudication of the matterin issue and further this Court opines that even without the steameragent being a party to the case, this Court can effectively andefficaciously decide the disputes in controversy and in that view ofthe matter, it is held that the steamer agent of the vesselM.V."CELJE" viz., A.S.Shipping Agency Private Limited is neither anecessary nor a proper party and the point No.1 is answered in favourof the respondents/plaintiffs accordingly. https://hcservices.ecourts.gov.in/hcservices/

14. finding on Point No.2:The learned counsel appearing for the appellant/defendant contendsthat the suit is barred by limitation as per Section 120 of the MajorPort Trusts Act 1963. In support of the said contention, the learnedcounsel for the appellant/defendant brings it to the notice of thisCourt that Section 120 of the Major Port Trusts Act 1963 enjoins ' nosuit or other proceeding shall be commenced against the Board or anymember or employee thereof for anything done, or purporting to havebeen done, in pursuance of this Act until the expiration of one monthafter notice in writing has been given to the Board or him statingthe cause of action, or after six months after the accrual of thecause of action' and further more, he also referred to Section 121 ofthe Major Port Trusts Act 1963 which refers to protection of actsdone in good faith and in and by which 'no suit or other legalproceeding shall lie(against the Authority a Board or any member) oremployee thereof in respect of anything which is in good faith doneor intended to be done under this Act or any rule or regulation madethereunder, or for any damage sustained by any vessel in consequenceof any defect in any of the moorings, hawsers or other thingsbelonging to or under the control of the Board.' 15. In the instant case, the respondents/plaintiffs have issueda legal notice dated 16.2.1989 addressed to the appellant/defendantwherein they have made a claim for payment of Rs.3,61,421/- towardspecuniary loss sustained by them and the said notice has beenreceived and the Acknowledgment is Ex A16. The cause of action forthe respondents/plaintiffs arises until expiration of one monthafter notice in writing has been issued by the respondents/plaintiffsto the appellant/defendant mentioning the cause of action or aftersix months after the accrual of the cause of action as envisagedunder Section 120 of the Major Port Trusts Act 1963.16. D.W.1 during his examination has deposed that reply notice Ex A17 dated 2.8.89 has been issued for the notice Ex A15 and afterthe issuance of Ex A15 notice dated 16.2.1989, only therespondents/plaintiffs have filed the suit before the Court. Afterthe issuance of notice and before the expiry of one month and afteraccrual of cause of action, the suit has to be laid within six monthsand inasmuch as the respondents/plaintiffs have issued a notice ExA15 within a month they have filed a suit and therefore, the suitprojected by the respondents/plaintiffs is a valid and proper one andthe same does not suffer from any patent illegality or irregularityand as such this Court inevitably comes to the conclusion that thesuit filed by the respondents/plaintiffs is well within the timeadumbrated as per Section 120 of the Major Port Trusts Act 1963. Thepoint No.2 is answered accordingly.17. Finding on Point No.3: It is the evidence of P.W.1 that the first respondent/firstplaintiff has imported the suit consignment as per the purchase order https://hcservices.ecourts.gov.in/hcservices/ Ex A1 and Ex A2 is invoice issued by the Phoenix Pulp and PaperCompany Limited in favour of the first plaintiff stating that 1250bales of bleached sulphate kenaf pulp and Ex A4 bill of lading and ExA5 is the bill of entry filed by the foreign and Forwarding Agencyand Ex A6 is the Insurance Policy issued by the secondrespondent/second plaintiff in regard to the suit consignment infavour of the first respondent/first plaintiff and the entireconsignment has been discharged with the appellant/defendant and ason 9.5.1988 only 720 bales, out of 1250 bales, have been cleared andthe balance of 530 bales have been in the custody of theappellant/defendant in the West Guay-3 and on 7.9.89,530 bales havebeen involved in a fire accident and Ex A8 is the letter addressed bythe first respondent/first plaintiff claiming compensation from theappellant/defendant and a telex message Ex A9 has also been sent tothe appellant/defendant for claiming compensation.18. It is the further evidence of P.W.1 that at the instance ofthe Insurance Company a survey has been conducted in regard to theascertainment actually damaged and out of 530 bales ,359 bales havebeen salvaged in sound condition and 39 bales have been removed indamaged condition and the balance of 132 bales have been totallydestroyed and independent survey report is Ex A10 and as per theInsurance policy, the second respondent/second plaintiff as such theclaim of the first respondent/first plaintiff and on payment made bythe second respondent/second plaintiff, the first respondent/firstplaintiff has executed a letter of subrogation and special power ofattorney Ex A14 and the loss has occurred due to the negligence onthe part of the appellant/defendant and there has been a breach ofstatutory duty on the part of the appellant/defendant and as such thethey are liable to pay the suit amount.19. It is pertinent to refer to the deposition of P.W.1 incross examination to the effect that as per the survey report , fireaccident has taken place on 7.9.88 at 4.30 a.m and the same has beenextinguished by 6.00 a.m., on the same day. P.W.2 as licensedsurveyor in his evidence has deposed that out of 1250 bales beingthe suit consignment ,720 bales have been removed by the firstplaintiff and the balance 359 bales have been removed in goodcondition and 39 bales have already been removed in badly damagedcondition and the remaining 132 bales in severally damaged conditionhas been kept in the Port itself and he has conducted survey aftermaking visit to the first plaintiff's factory and his report Ex A10. P.W.2 in his cross examination has categorically stated thathe has wrongly mentioned in Ex A10 at page 5 in last paragraph as 540instead of 530. A perusal of Ex A10 report shows that the loss hasbeen rounded to Rs.3,61,421/- and per centage of loss is arrived at12.69% and further the expenses including outstation allowanceRs.1771 and fees charges at Rs5,000/- totalling Rs.6,771/-.Continuing further in Ex A10 report, it is inter alia mentionedthat . . . . . . . . .359 bales did not have any discolouration andthat these would be treated as sound and moved to their millaccordingly and 39 bales (38 firm and 1 in loose condition) wereaffected with black speck on the surface and colour tarnished and https://hcservices.ecourts.gov.in/hcservices/ remaining 132 bales in very badly charred condition were uneconomicalto carry out guillotining were abandoned by the insured on 22ndSeptember 1988. It is also mentioned that after examining the variousinput going to the mixed waste the realisable salvage was ascertainedat Rs.2,862/MT for 39 partially damaged bales.20. D.W.1(Traffic Department Superintendent) during hisexamination has deposed that from 3.9.88 281 bales have landed andin the second shift 347 bales have landed and Ex B2 is the importapplication dated 3.9.88 and on 7.9.88 near the suit consignmentlabels fire accident has taken place and since the chemical ammoniumper sulphate related products have been placed near the suitconsignment labels, fire accident had taken place and in Ex B4 theMechanical Engineer's report pertaining to the fire accident, it ismentioned that the accident has not taken place due to any leakage ofelectricity and that the steamer agent, who unloaded Ammonium persulphate products is responsible towards the suit claim.21.It is relevant to point out the evidence of D.W1 in his crossexamination that Ammonium Per Sulphate products have been kept at adistance of 100 feet from the place where the suit consignment hasbeen kept and in what manner the consignment has to be properlysafeguarded the entire responsibility of the appellant/defendant andfurther that Shed Master will issue direction as to the place wherethe unloaded consignments will have to be kept after determining theconsignment category to which they belong and in the suit consignmentthere has been no marking and therefore, the Shed Master has not in aposition to know the nature and character of the consignment labelsand in the import tally sheet Ex B1, there is a column which refersto consignment details and that he is not aware of detail of IMC -51marking. D.W1 in his further cross examination has stated that in ExB2, the consignment status will be definitely mentioned and that hedoes not know about the status when the Ammonium Per Sulphate havebeen unloaded and that as against Ammonium Per Sulphate near noproducts or no notice claiming compensation has been issued.22. Section 42(2) of Major Port Trusts Act 1963 specifies that'A Board may, if so requested by the owner, take charge of the goodsfor the purpose of performing the service or services and shall givea receipt in such form as the Board may specify and further as perSub Clause (7) of Section 42' After any goods have been taken chargeof and a receipt given for them under this Section, no liability forany loss or damage which may occur too them shall attach to anyperson to whom a receipt has been given or to the master or owner ofthe vessel from which the goods have been landed or transhipped' andtherefore it is the contention of the learned counsel for therespondents/plaintiffs that the appellant is squarely responsible forthe pecuniary loss sustained by the respondents/plaintiffs and it isnot open to the appellant/defendant to take a plea of Act of God.23. Per contra, the learned counsel for the appellant cites thedecision of the Hon'ble Supreme Court in The Trustees of the Port ofBombay-v-The Premier Automobiles Ltd(AIR 1981 Supreme Court 1982) to https://hcservices.ecourts.gov.in/hcservices/ the effect that' Even though there was no contractual bailment eitheraccording to the pleadings of the parties, or on the wordings ofSection 61-B, the responsibility of the Board was of the natureaforesaid, as the bailee of the consignment by virtue of thatsection. In other words, in so far as the ''responsibility'' of theBoard for the loss, destruction or deterioration of the goods ofwhich it had taken charge was concerned, it was clearly that of abailee, subject of course to the reservations provided by thesection. It is well settled that the essence of bailment ispossession It is equally well settled that a bailment may arise, asin this case, even when the owner of the goods has not consented totheir possession by the bailee at all' and submits that for theadmitted cause to the goods by acts of employees , theappellant/defendant is not liable to pay the suit amount as claimedby the respondents/plaintiffs. 24.However, the learned counsel for the respondents/plaintiffsrelies on the decision of this Court in Board of Trustees of theMadras Port Trust, rep. By its Chairman, -v- Vinod SelvextractsPvt.Ltd.(2003-1 L.W.437 at page 438)wherein it is held that theresponsibility of the Board under Section 42(2) of the Major PortTrusts Act 1963 is that of a bailee under Ss.151,152,161 of ContractAct, to take such care of the goods as a man of ordinary prudencewould take of his own goods and further the plea that the suit filedby the Insurance Company claiming to be subrogated are notmaintainable and the same is rejected and contends that the saiddecision is squarely applicable to the facts of the present case inand before this Court and therefore, the appellant/defendant is dutybound to pay the suit amount since the negligence act of theappellant/defendant is responsible for the pecuniary loss sustainedby the respondents/plaintiffs in regard to the damages caused to thegoods due to fire.25. It is an axiomatic fact in law that it is for the claimantto prove that he has suffered an injury/sustained a pecuniary loss asthe feasible result of employer's breach of duty. The threeessentials of law are(1)Duty (2) Breach (3) causation and theexistence of a duty remains to the test of foreseeability, proximity,fairness, justice and reasonableness that apply in the realm of Lawof Torts in the considered opinion of this Court. 26.In view of the specific evidence of D.W.1 to the effect thatnear the suit consignment labels, Ammonium Per Sulphate consignmentshave been unloaded as per the direction/instruction of the Shedmaster and fact that the fire accident has taken place on 7.9.1988and inasmuch as the respondents/plaintiffs have sustained a pecuniaryloss because of the negligent act of the appellant/defendant and alsonot taken proper and adequate care(though it owes a duty) in regardto the manner of storing the suit consignment near the place of theAmmonium Per Sulphate consignment(a combustible chemical andhazarduous) and therefore it is a clear case of the occurrencespeaks for itself and as such the plea of Viz Major is not acceptedby this Court. Equally, the plea taken by the appellant/defendant https://hcservices.ecourts.gov.in/hcservices/ that there is no caution or absence of any warning label of hazardousnature of chemical substance is untenable since the appellant isaware of the nature of the suit consignment.27. Ex A6 is the policy dated 31.8.1988 issued by the secondrespondent/second plaintiff Insurance Company in favour of theassures first respondent/first plaintiff for insured 1250 bales-250.00 MT from Thailand to Badrachalam viz., Madras in OSIPYATNITSKIY vessel Ex A14 dated 27.2.1989 is the letter ofsubrogation and special power of attorney executed by the firstrespondent/first plaintiff addressed to the second respondent/secondplaintiff mentioning that in consideration of secondrespondent/insurance company paying the first respondent/firstplaintiff a sum of Rs.4,05,656.63ps in respect of loss/damage to thegoods, the first respondent/first plaintiff assign, transfer andabandon all its actionable rights, title and interest etc., infavour of second respondent/second plaintiff insurance company. ButEx A15 advocates' notice dated 16.2.1989 issued by the firstrespondent/first plaintiff to the appellant/defendant is for a claimof Rs.3,61,421/-.28. In short, on an over all assessment of the facts andcircumstances and on an appreciation of available both oral anddocumentary evidence in a cumulative manner, it is quite evident thatthe appellant/defendant is solely and squarely responsible for thesuit amount because of the simple fact that they have taken custodyof the import of cargo and has taken delivery of the consignmentsand once when the delivery has been effected and taken care, then theresponsibility of the bailee comes into operative play and henceduty bound to answer when there is a breach of statutory duty whichfloat on the surface in the present case and viewed in thatperspective the liability of the appellant/defendant is very muchattracted and accordingly it is held that the appellant/defendant isliable to pay the suit amount to the respondents/plaintiffs and thepoint is answered accordingly. In short, looking at from any point ofview, the Judgment and decree of the Trial Court are proper andvalid one requiring no interference in the hands of this Court andconsequently the appeal fails.29. In the result, the appeal fails and the same is dismissed.The Judgment and decree of the trial Court are affirmed by thisCourt for the reasons assigned in this appeal. Considering the factsand circumstances of the case, there shall be no order as to costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarsg https://hcservices.ecourts.gov.in/hcservices/ To1.The Registrar, High Court, Chennai.2.VI Additional Judge, City Civil Court, Chennai3.The Record Section, V.R.Section, High Court, Madras.1 cc To Mr.Nageswaran, Advocate, SR.298421 cc To Mr.R.Karthikeyan, Advocate, SR.29691 A.S.No.41/2002mbs(co)pmk.3.8.2009.