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High Court Appeal No. 13 of 1975, decided on 13th May, 1981.

...‑‑ Ss. 37 & 74‑Insurance claim ‑‑‑Evidence proving loss by fire neither substantially challenged in cross‑examination of witnesses examined on behalf of respondents nor rebutted by examining any evidence by appellants‑‑Respondents, held, proved their claim with regard to loss of goods as well as their quantity' and value by sufficient and satisfactory evidence on record.

A. K. Niazi for Appellant‑

Rehanul Hassan Farooqi for Respondent.

Dates of hearing : 4th and 5th May', 1981.

G. M. KOUREJO, J: This is are appeal against the judgment dated 10‑12‑1974, passed by the .learned Single Judge who decreed the respondents suit against the appellant‑Insurance Company for Rs.1,00,000 with costs and interest at the rate of 6 % per annum from the date of filing of the suit till payment.

2. The facts leading up to this appeal briefly stated are that the respondents were a registered partnership concern dealing with the business as carriers for transporting goods of various customers from Karachi to Lahore. They used to store the goods of the customers in their godown inside Sarai Sultan, Lahore till the goods were delivered to the consignees on production of transport receipts. For safety of the goods they had purchased an insurance policy in respect of the goods stored in the godown to the extent of Rs.1,00,000. Fire broke out in the said godown on the night between 21st and 22nd December 1968, at about 2‑00 a.m. resulting in total damage of the goods stored in the godown consisting of 150 cases of match sticks, 25 cartons of Carbamide medicine and 30 cases of packing papers completely burnt. The total value of these goods amounted to Rs.1,27,308.40. The. respondents on the morning of 22‑12‑1968 gave notice of the loss to the appellants and on the next day i.e. 23‑12‑1968 sent letter to the appellants in writing informing them of the fire in the godown. The appellants deputed their surveyors to carry out survey on 24‑12‑1968. They submitted their report on 11‑1‑1969. The report of the surveyor confirmed the loss of the goods by fire but in spite of that the appellants failed to settle the claim of the respondents with the result that the respondents filed a suit which was decreed as stated above, resulting in the present appeal.

3. The appellants denied that on the alleged night between 21st and 22nd December 1968, the alleged stock of goods of the value of Rs.1,27,308.40 were at all stored .in the godown and that they denied the total damage to the goods. They ‑have also denied the knowledge of the fire having broken out in the godown though they admit that they received a notice of the loss to the goods served on them by the respondents. They contended that their first surveyors Messrs Al‑Mizan got mixed up with the respondents and, therefore,, they had to appoint another surveyor Messrs Fazal Chaudhary & Company, Karachi who found the claim of the respondents to be doubtful. They contended that the claim of the respondents was false and exaggerated and that the alleged loss never occurred and, therefore, they denied the liability to pay up the claim of the respondents. However, no legal pleas were raised by them.

4. The learned Single Judge in fall framed the following four issues :-

"(1) What was the stock of the plaintiff's in their godown in suit on the night on 21‑12‑1968 and what; was its value

(2) Was this entire stock gutted by fire on the night of 21‑12‑1968 and 22.12‑1968 at about 2‑06 a.m. or all or some of them were delivered to respective customers

(3) Which of the two survey reports (Exhs. D & X) be relied upon

(4) What is the extent of the Insurance claim and what amount if any, the plaintiff's are entitled to recover from the defendants

5. The respondents examined the evidence of five witnesses in support of their claim, whereas the appellants preferred not to lead any evidence. On the date of final arguments the learned counsel for the parties remained absent with the result that the learned Single Judge scrutinised the evidence on the record and pronounced the judgment.

6. Since common evidence was examined on all the four issues, it would be convenient to consider and answer all the four issues together as has been done by the learned Single Judge in his judgment. The learned counsel for the appellants has mainly contended that the loss of the goods as well as its quantity and their value has not been proved, in as much as the documentary evidence has been suppressed by the respondents and they have failed to adduce the best possible evidence available with them. In that respect, we find that the respondents have examined the evidence of consignees of the goods who have produced their vouchers and receipts showing the value of the goods transported by them, the delivery of which had not so far been taken when the fire broke out. Witness Ch. Samiullah is the managing partner of Shifa Medicos, Lahore, consignee of 25 cartons of Carbamide Medicine transported by the respondent's Transport Company, Karachi. According to him, the gross value of the goods was Rs.61,998, He also produced the truck receipt, dated 11‑12‑1968 and has deposed that the goods transported were not received as the fire broke out in the godown of Transport Company. The next witness Saeed Ahmed is the Proprietor of Abdul Majeed Saeed Ahmad Akbari Mandi, Lahore. He transported 20 cases and 30 cases of match boxes valued at Rs.7,120 and Rs.10,680 respectively and produced two separate truck receipt;. He also produced the receipts before the surveyor and has deposed that he could not obtain the delivery on producing the truck receipts. Four other receipts were not received by him from the Habib Bank and United Bank Limited. According to him the entire consignment was consumed by fire. The next witness Muhammad Siddique is the proprietor of Public Paper, Mart, Liaqat Road, Lahore. According to him he had purchased 30 boxes of paper from Qadri Paper Mart, Karachi, the value of which was Rs.25,786 and has transported the goods through the respondents truck for Lahore. Accord ing to him the entire stock of paper was consumed by fire. Besides the above mentioned consignees of the goods, who have supported the respondent's claim in toto, the respondents have also examined Haji Rehmatullah, Managing Partner of their firm. He has deposed that the goods damaged in the godown valued at Rs.1,27,000. He has produced newspaper cutting of three papers, in which the incident of fire in their godown was reported and has deposed that their claim was genuine. They have also examined Syed Iqbal Hussain, Managing Partner of Al‑Meezan Surveyors, Lahore who has deposed that he was the only surveyor appointed by the Insurance Company and that no objection was taken to his report. He visited the site on 24th December, 1968, only after two days of the incident of fire and examined the actual damage to the consignment stored in the godown. He has based his report on examining the truck receipts and the other documents with regard to the extent of loss caused to the respondents. The report of the second surveyors appointed by the appellants after a period of four months on the vague plea that the first surveyors had been mixed up with the respondents, is belated and inconclusive and would hardly carry any weight. Moreover, this subsequent surveyors have not been examined and unless their version has undergone the test of the cross‑examination, it is hardly possible to rely on their report in prefer ence to the version of the first surveyors on whose behalf Syed Iqbal Hussain has been examined whose version appears reliable and worthy of credit. It would, therefore, appear. that the respondents examined all the reasonably possible evidence avalable with them ; the evidence of consignees who produced truck receipts to show that they transported the goods, their version with regard to the value of the goods, which has not been substantially challenged, coupled with their version to the effect that the fire broke out in the godown supported in that respect by the version of the representative of the respondents, the exhaustive report of the first surveyor appointed by the Insurance Company itself and the newspaper cuttings supporting the incident of fire having occurred in the godown resulting in the total loss. Ail this evidence neither has been substantially challenged in the cross‑examination of the witnesses examined on behalf of the respondents nor it has been rebutted by examining any evidence by the appellants. We, therefore, find that in absence of evidence led by the appellants in rebuttal, the respondents have proved their claim with regard to the loss of the goods as well as their quantity and value by sufficient and satisfactory evidence on the record. Accordingly we do not find any substance in the contentions raised on behalf of the appellants by their learned counsel. Since the insurance cover was only to the extent of Rs.1,00,000 we find that the suit was rightly decreed for that amount with interest and costs.

7. The result is, that the appeal is dismissed with costs.

M. Y. H. Appeal dismissed.