Madras High Court
Board Of Trustees Of The Madras Port ... vs Vinod Selvextracts Pvt. Ltd., Thatha ... on 12 June, 2002
Equivalent citations: 2003(151)ELT290(MAD)
Author: K. Raviraja Pandian
Bench: K. Raviraja Pandian
JUDGMENT K. Raviraja Pandian, J.
1. In the above appeals, the Board of Trustees of the Madras Port Trust represented by its Chairman put in issue the judgment and decree made in the respective suits fastening the liability on the Madras Port Trust for the damages on the ground that the goods warehoused by the respective consignees/plaintiffs in the Anchor-gate bonded Warehouse of the Madras Harbour belonging to the Madras Port Trust were destroyed in a fire-accident that has taken place on 7.6.1982 due to the negligence on the part of the Port Trust, Madras. In three suits viz., C.S.Nos.496 of 1983, 288 of 1984 and 534 of 1985, the Collector of Customs has been shown as a defendant. It seems as against C.S.No.534 of 1985, no appeal has been filed. In respect of the other two suits viz., C.S.Nos.496 of 1983 and 288 of 1984, Appeal Nos.46 of 1992 and 50 of 1992 have been filed among other appeals in which the claim is made against the Port Trust only.
2. Learned single Judge of this Court thought it fit to consolidate all the cases together heard and delivered the judgment in common since in all these cases, the claims arise out of the same cause of action. However, the plaintiffs have let in evidence independently in respect of their claim. The Port Trust let in evidence in their defence.
3. The learned Judge after taking into consideration of the legal submissions submitted by the counsel appearing for the respective plaintiffs and the defendants and upon considering the material evidences placed before it, both oral and documentary, ultimately came to the conclusion that the appellant Port Trust is liable for the loss that has occurred to the goods entrusted to the Port Trust by the various plaintiffs as a result of the fire accident that occurred in the bonded warehouse on 7.6.1982.
4. Mr. V.T. Gopalan, learned Additional Solicitor General appearing for the Port Trust, the appellant in all the above cases contended that the finding of the learned single Judge that even after warehousing of the goods, the Port Trust continues to be a bailee as per Section 43(1)(ii) of the Major Port Trusts Act is not sustainable in law. He contended that under Section 43(1)(ii) and the proviso to the said provision, the responsibility of the bailee shall attach to the Board only when a receipt under Section 42(2) of the Act has been given by the Board. The regulations framed on this behalf by the Central Government clearly states that the responsibility of the Board pursuant to the receipt issued would be only for a period of one week, when the goods are kept in the transit area. He further contended that as per the Customs Act, the Chennai Port Trust would only be a licensee of the public warehouse under the provisions of the Customs Act. The Customs Act does not impose any such liability on the warehouse keeper as has been specifically set out under the provisions of Major Port Trusts Act. Therefore, he contended that what is not specifically provided for under the Customs Act cannot be deemed to be so or in other words must be deemed to be excluded.
5. It is the further contention of the learned counsel that a conjoint reading of the provisions of Sections 62 and 64 along with Sections 57 and 58 makes the position clear that warehouses are licensees to be established for the purpose of facilitating the collection of duty by the Customs Authorities and such warehouses are licensees and controlled by the Customs Authorities. Except to the limited right of demanding the warehouse rent or charges at the rates fixed, the Port Trust has no further right in respect of either the deposit of the goods pending payment of duty in the warehouse or taking out the goods from the warehouse after payment of duty for home consumption. As per Section 62(3) of the Customs Act, the warehouse to be locked with a lock of the Customs Department and no person shall remove or break such lock. Even in the case on hand, in spite of the fact that one key has been handed over to the Port Trust, the position remains the same, since it is only a private arrangement between the Customs Department and the Port Trust. But as per law, the Customs Department is only having the authority and control over the goods. According to the learned Additional Solicitor General, the warehouse keeper i.e. Port Trust is only owner of the building and does not issue any receipt for the goods warehoused as prescribed in the Major Port Trusts Act. These are the precise contentions of the learned Additional Solicitor General appearing for the Port Trust for disowning the liability for the damage caused to the goods when they were warehoused with the Port Trust.
6. On the other hand, learned counsel appearing for the claimants/respondents submitted that as per Section 43(1)(ii) of the Major Port Trusts Act , the Port Trust being a statutory bailee is liable for the loss caused to the goods warehoused with the Port Trust and no exception could be taken to the judgment in appeal. Learned counsel appearing for the Insurance Company, which was arrayed as co-plaintiff in some of the suits on the ground of subrogation along with the importer consignee, in all material facts supported the arguments of the learned counsel appearing for the respondents/consignees for sustaining the judgment and countered the argument of the learned Additional Solicitor General appearing for the Port Trust that the Insurance Company themselves cannot maintain the suit in law.
7. On the basis of the above contention raised, it would be clear that the foremost question that arises for consideration in these appeals is, whether in the facts and circumstances of the case, the Port Trust is liable for the destruction of the goods by fire accident on 7.6.1982, which were warehoused in the Anchor-gate bonded Warehouse of the Madras Harbour belonging to the Madras Port Trust due to the negligence on the part of the Port Trust.
8. For answering the above question, it is necessary to examine certain provisions of the Act, which are relevant in this behalf, namely, Sections 42 and 43 of the Major Port Trusts Act and the relevant provisions of Customs Act.
9. Section 42 deals with performance of services by Board or other person. As seen from the above said provision, subsection (2) of Section 42 provides that the Board, may, if so requested by the owner take charge of the goods for the purpose of performing the service or services and shall give a receipt in such form as the Board may specify.
10. The `service' or 'services' which the Board performs are referred to in Sub- section (1) which includes receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises. The receiving and delivery of goods contemplated in clause (b) of Sub-section (1) is receiving from the consignor and delivery to the consignee or his agent. It is thus clear that statutorily the Board is constituted as an intermediary , who receives the goods from the shipper and delivers them to the consignee on presentation of the appropriate documents. Sub-sections (3) to (6) deal with the performance of the said services by a person authorised by the Board with the previous sanction of the Central Government and are not relevant for the purpose of this case. Sub-section (7) contemplates that after the goods have been taken charge of and a receipt given for them under this section i.e. Under sub-section (2) no liability for any loss or damage occurring thereafter shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed or transhipped.
11. Sub-section (1) of Section 42 states that the responsibility of the Board for the loss, destruction or deterioration of the goods taken charge by it and in respect of which a receipt under sub-section (2) of Section 42 has been issued by it shall be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act. The said provisions of the Contract Act obliges the Board to take such care of the said goods as a man of ordinary prudence would take of his own goods in similar circumstances, while exonerating it from any loss or destruction occurring to the goods in spite of such care taken by it. It further provides that if on account of the default of the bailee the goods are not returned, delivered or tendered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. The said provision also provides that the outer limit of such period which is 7 days as per Regulation in G.S.R 35(3e) dated 1.2.1975. Sub-section (2) of Section 43 requires a notice to be given within the period prescribed by the Regulations made for that behalf.
12. Section 46 of the Customs Act provides that the importer of any goods, other than goods intended for transit or transhipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form.
13. Section 47 contemplates that where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption.
14. Section 49 provides for storage of imported goods in warehouse pending clearance in the sense that where in the case of any imported goods, whether dutiable or not, entered for home consumption, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored in a public warehouse, or in a private warehouse, if facilities for deposit in a public warehouse are not available; but such goods shall not be deemed to be warehoused goods for the purposes of this Act and accordingly, the provisions of Chapter IX shall not apply to such goods.
15. In the light of the above said provisions, let us consider the facts of the case. The undisputed facts, which are common to all the appeals under consideration are that some of the goods that were bonded by different plaintiffs arrived by vessels and some others arrived as air-cargo. In some cases customs duty was not assessed and in some others customs duty though assessed, was not paid by the respective plaintiffs. The goods were warehoused after clearing the goods from the transit area of the Madras Harbour. Accordingly, these goods were bonded in the Anchor Gate Bonded Warehouse belonging to the Port Trust. The goods which were salvaged by the authorities have been kept in warehouse NO.3 belonging to the Port Trust. The Port Trust issued notice under Ex.D5 to the various consignees including the plaintiffs or their clearing agents to come and inspect the goods and identify them and to take delivery of the goods, if they were in good condition. Some of the consignees did inspect the goods and some others did not. According to the claimants/plaintiffs the fire broke out due to the negligence of the Port Trust and therefore they are entitled to get damages for the goods that have been destroyed in the fire.
16. The defence in the written statement filed by the Port Trust is that it is not a bailee in respect of the goods that have been bonded by the plaintiffs, that the goods were bonded prior to clearance. The Anchor Gate Bonded Warehouse was under the Customs' control and the Port Trust was only a Warehouse keeper. As soon as the fire was noticed at 12.15 hours on 7.6.1982, all maximum possible steps have been taken immediately to extinguish the fire within minimum possible period. Even Snorkel and Fire Service from the Southern Railway, Railway Protection Force and other agencies have been requisitioned to put out the fire. The fire was brought under control within the evening on the same day.
17. The further case of defence of the Port Trust is that adequate number of fire extinguishers of the appropriate type have been installed in each warehouse and all the fire extinguishers were maintained in good condition and all possible necessary and precautionary steps were taken immediately after the fire was noticed. No hazardous cargo was stocked in the warehouse. The warehouse staff were well versed in fire-fighting. The entry into the harbour is prohibited and restricted to persons with passes only. No undesirable or unrecognised person is allowed to enter the harbour. Smoking in the harbour is strictly prohibited. The personnel from the Central Industrial Security Force keep watch and ward of the warehouse round the clock to prevent any mischief. The materials used for the Bonded Warehouse building in question are all fire-proof materials. The building itself is fire-proof building. The electrical equipments are also periodically checked and rectified then and there if any defect was found. Hence, according to the Port Trust, there was no negligence on the part of the Appellant Port Trust.
18. It is the further defence of the Port trust that it had acted under the directions of the Customs Department in regard to the Warehousing of the goods, which is a statutory direction. The Port Trust is only renting out space on licence. The licence-fee collected is only for the space occupied by the goods and not on the goods. Though the keys of the warehouse are with the Port Trust, the same was kept on behalf of the Customs.
19. It cannot be denied that the Port Trust is a statutory bailee in view of the statutory provision under Section 42(6) and 43(1)(ii) of the Major Port Trusts Act. The receipt referred to under Section 42(2) is the receipt for the purpose of taking charge of the goods either from the owner/consignor for the purpose of exportation or from the vessel for the purpose of importation referred to only to the transitory period when the goods are under the customs area immediately after unloading the goods. In this case, after the goods were cleared from the vessel and or after reaching the warehouse after removing the goods as air-cargo bonded with the warehouse of the Port Trust. Then it is the custodian of the goods. For the purpose of custody of the goods, the Port trust receives rents. Since because the goods are permitted to be bonded by the proper officer of the Customs, it cannot be stated that the Customs Department alone has got the custody of the goods. The goods are bonded for payment of duty to the customs authority until the goods are cleared under the provisions of the Customs Act. The mere fact that the Port Trust is keeping the goods on the consignee being permitted on filing bill of entry by the proper officer does not mean that the Port Trust has no custody or control over the goods. For the purpose of keeping the goods under its custody, the Port Trust collects rent, which is statutorily authorised under subsection (2) of Section 63 of the Customs Act. The power of the warehouse-keeper has been specifically mentioned in the said sub-section and in case rents are not paid within the time prescribed, the warehouse keeper may after due notice to the owner of the warehoused goods and with the permission of the proper officer of the Customs could sell the goods notwithstanding the fact that the transfer of the goods warehoused had taken place such sufficient portion of the goods as the warehouse keeper may select for the purpose of realising the rent.
20. Further sub-section (2) of Section 42 of the Major Port Trusts Act read with Section 43 of the said Act makes the position very clear. Sub-section (2) of Section 42 of the Major Port Trusts Act empowers the Port Trust to take charge of the goods for the purpose of performing the service or services, if so requested by the owner and on such taking charge of the goods, the Port Trust shall give a receipt in such form as the Board may think fit.
21. Incidentally we will have to refer to Section 37 of the Major Port Trusts Act also. Section 37 contemplates that when any dock, berth, wharf, quay , sage, jetty or pier erected at any port or port approaches under the provisions of this Act has been completed with sufficient warehouses, sheds and appliances for receiving, landing or shipping goods or passengers from and upon sea-going vessels, the Board may, after obtaining the approval of the Collector of Customs and by notification published in three consecutive issues of the Official Gazette, declare that such dock, berth, wharf, quay stage, jetty or pier is ready for receiving, landing and shipping or for landing or for shipping goods or passengers from and upon sea-going vessels. The said Section further provides that as from the date of the publication of such notification for the third time, it shall be lawful for the Board, from time to time, when there is room at such dock, berth, wharf, quay, stage, jetty or pier, to order to come alongside of such dock, berth, wharf, quay stage, jetty or pier for the purpose of landing and shipping goods or passengers or for landing or for shipping the same, any sea-going vessel within the port or port approaches. It is also further admitted that the entire Harbour area is prohibited area under the control of the Port Trust.
22. Under Section 43, the Port Trusts Act is made responsible for the losses, destruction or deterioration of the goods of which it has taken charge. Under subsection (1) (i) of Section 43, the responsibility of the Port Trust is stated as that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872. In the teeth of the above, the contention of the learned counsel that the Port Trust are only the licensee and the custody of the goods by the Port Trust in their warehouse would not make them liable for damages cannot at all be accepted.
23. It may be true that the bonded warehouse has been created under the provisions of the Customs Act. But that does not take away the rights and duties of the Port Trust as a bailee under the Major Port Trusts Act. It is only on that ground that the Port Trust is acting as a bailee as stated in Section 43 of the Act, the Port Trust is collecting the rent under the provisions of sub-section (2) of Section 63 of the Customs Act. The control of the proper Officer that has been contemplated under the Customs Act is for the purpose of realising the duty and other charges payable to the customs on the importation of the goods. But that does not preclude the Port Trust to realise the rent for the period for which the goods have been bonded with them or the Port Trust is collecting any rent or charges from the customs authorities. The Major Port Trusts Act and the Customs Act contemplate dual rights and duties on the part of the Customs and the Port Trust. The moment the Port Trust receives the goods for proper custody, the duty to take care of the goods for safe delivery is fastened on the Port Trust.
24. It is pertinent to note that under Section 45 of the Customs Act all the imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. So long as the goods are in the customs area, the goods shall remain in the custody of such person as may be approved by the Collector of Customs. Once the goods are warehoused, the custody of the goods is only with the Port Trust and the liability for any loss and damages according to the provisions of the Major Port Trusts Act is fastened on the Port Trust. The mere control over the goods for proper collection of customs duty payable by the importer would not take away the liability of the Port Trust, which is the custodian of the goods that are warehoused within it.
25. It is pertinent to refer here the decision of the Supreme Court on which the learned counsel appearing for the Port Trust relied on INTERNATIONAL AIRPORTS AUTHORITY OF INDIA AND OTHERS VS. GRAND SLAM INTERNATIONAL AND OTHERS . The said decision instead of supporting the case of the appellant rather advance the case of the respondents. At paragraph No.42 of the said judgment with unequivocal terms declared that :
"the purpose of the Customs Act on the one hand and the Major Port Trusts Act and the International Airports Authority Act on the other hand are different. The former deals with the collection of customs duties on imported goods. The latter deals with the maintenance of seaports and airports, the facilities to be provided thereat and the charges to be recovered therefor. An importer must land the imported goods at a seaport or airport. He can clear them only after completion of customs formalities. For this purpose, the seaports and airports are approved and provide storage facilities and Customs officers are accommodated therein to facilitate clearance. For the occupation by the imported goods of space in the seaport or airport, the Board or the Authority which is its proprietor is entitled to charge the importer. That until customs clearance the Board or the Authority may not permit the importer to remove his goods from its premises does not imply that it may not charge the importer for the space his goods have occupied until their clearance."
26. In the said decision, after referring the decision of the Board of Trustees of the Port of Bombay v. Jai Hind Oil Mills Co. , the Apex Court proceeded to say as follows:
"the provisions of the Major Port Trusts Act, 1963, which were under examination of this Court having been found to be in pari materia with the provisions of the Ports Act considered by this Court in Aminchand Pyarelal and Indian Goods Supplying Co. , by following the decisions rendered therein, it was held thus:
"The power of a Port Trust to fix rates of demurrage and to recover the same from an importer or exporter (although the question of an exporter paying demurrage arises rarely) under law and to show concession as regards demurrage charges in certain specified cases is recognised by the Court in the Trustees of the Port of Madras v. Aminchand Pyarelal and in the Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co. These decisions are no doubt based on the relevant laws which were in force at the material time. But the decisions are still relevant insofar as cases arising under the Act because the Act also contains provisions more or less similar to the statutory provisions considered in the said decisions. Demurrage charges are levied in order to ensure quick clearance of the cargo from the harbour. They are always fixed in such a way that they would make it unprofitable for importers to use the port premises as a warehouse. It is necessary to do so because congestion in the ports affects the free movement of ships and the loading and unloading operations. As stated earlier, the Port Trust shows concession to the party concerned in certain types of cases."
The decision further proceeds thus:
"From the above decisions of this Court it becomes clear that an authority created under a statute even if it is the custodian of the imported goods because of the provisions of the Customs Act, 1961, would be entitled to charge demurrages for the imported goods in its custody and make the importer or consignee liable for the same even for periods during which he/it was unable to clear the goods from the customs area, due to fault on the part of the Customs Authorities or of other authorities who might have issued detention certificates owning such fault.
Thus the above decisions of this Court which uphold the power of Port Trusts created under Ports Act to levy and collect demurrage charges for goods they keep as custodians for Customs Department from the consignees notwithstanding the detention certificates issued by the Customs Department."
27. The same ratio would apply to the case on hand. The Port Trust, the creature of a statute, which deals with the maintenance of seaports, the facilities to be provided thereat, service to be rendered and the responsibility of it for the loss, destruction or deterioration of the goods of which it has taken charge. An importer must land his imported goods at a seaport obviously because of Section 37 of the Major Port Trusts Act and he could clear them only after completion of custom formalities. For this purpose, the seaports are approved and provide storage facilities. For the occupation by the imported goods of space in the seaport, the Board, which is its proprietor is entitled to charge the importer. Likewise is the responsibility for the destruction, deterioration or loss of goods, which it has taken charge of. Until customs clearance, the Board may not permit the importer to remove his goods from its premises does not imply that the Board is not responsible for the loss or destruction or deterioration caused to the goods under its custody. Hence, we are of the opinion that the Port Trust is liable for the loss caused to the goods under its custody.
28. The learned counsel appearing for the appellant also placed reliance on the judgment of M/S. OSWAL SPINNING & WEAVING MILLS LTD. VS. COLLECTOR OF CUSTOMS AND ANOTHER to contend that it is only the Customs Department and not the Port Trust is liable for the loss caused to the goods in the present case. We are not able to see any reason to accept the contention, because there is a ocean of difference between the facts of that case and the present case. In that case, the goods imported were never warehoused. The goods were unloaded in customs area and later confiscated under Section 111(d) and (m) of the Customs Act and the goods were not handed over and never be in the possession and custody of the Port Trust and the goods were in the transitory period. On the other hand, it is admitted fact that in all these appeals, the goods were warehoused on filing the bill of entry. There is no confiscation here in this case.
29. Under Section 151 of the Indian Contract Act, the bailee is bound to take much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value of the goods bailed. In view of the above said provision, the Port Trust has to prove that it has taken care of the goods bailed to it as a man of ordinary prudence would take of his own goods of the same bulk, quality and value of the goods bailed. Further, what amount of care and precaution the Port Trust has taken to safeguard the goods, which has been warehoused, could only be within the knowledge of the Port Trust. Hence, the burden is only on the Port Trust to satisfy the Court as to the care it has taken on the goods warehoused.
30. The contention of the learned counsel for the appellant is that though an enquiry has been conducted as to the cause for the fire accident, till now the cause is unknown and all precautions, which are necessary to safeguard the goods, have been taken by the Board and hence it would be only an act of God and for such an act of God, the Port Trust should not be fastened with the liability. For the above contention, now let us consider the material evidences on record.
31. The Superintending Engineer, Maintenance in Civil Engineering Department deposed as D.W.3. According to him, the building was in a very good condition. He deposed that he carried out inspection in the year 1979. According to him, even though the building is inspected periodically, no register has been maintained by the Port Trust for the said purpose. It is pertinent to note that the said D.W.3 did not give evidence before the enquiry committee, which went into the cause of the fire.
32. The Deputy Port Trust Conservator has deposed as D.W.4. He deposed as to the constitution of the Committee at the instance of the Ministry, Shipping and transport to enquire into the cause of the fire and according to him, the Committee did not reach a firm conclusion as to the cause of the fire since no material to that effect were made available before the Committee, but strangely inferred that spontaneous combustion might have been the reason for the fire on the ground that on the particular day of fire i.e., on 7.6.1982, the Madras city was under the spell of hot temperature. However, he has stated that he was unaware of the fact whether the godowns have been stored with any goods of combustible nature. According to him, the inference of spontaneous combustion should have been the act of God.
33. The Dock Manager of the Port Trust has deposed as D.W.5. There is absolutely nothing in his evidence as to the precautions or the safeguards taken by the Port Trust. However, he made a crucial admission in his evidence that inflammable or combustible or hazardous goods would not be permitted to warehouse in the dock and as such nothing of such nature of goods have been warehoused. This admission of the Dock Manager of the Port Trust go to falsify the theory of spontaneous combustion, because of the reason of high temperature on the date of accident advanced by the appellant.
34. The Executive Engineer, (Electronics) tendered his evidence as D.W.7 as to the soundness of the warehouse and also the electrical installations. But his evidence is in total contradiction to that of D.W.5, who has deposed that the Anchor Gate house has been completely reduced to ashes whereas according to D.W.7, at the time of his inspection after the accident, the fuses were in tact and thus, there could not be any leakage or defect in the electrical system. It is pertinent to note that the fuse carriers of the Anchor Gate warehouses which were found to be in tact according to D.W.7 were not produced before the enquiry by the Port Trust or before the trial stage to prove the case.
35. According to D.W.5, the Dock Manager of the Port Trust, the Anchor Gate warehouse was reduced to ashes. If that be true, it would be very difficult to accept the evidence of D.W.7 that at the time of inspection, he found that the fuse carriers were in tact. The fact remains that no registers which were said to have been maintained for the maintenance of the warehouse have been produced by the Port Trust to prove their case on the simple reason that everything has been reduced to ashes. In the absence of any material or any evidence worth mentioning as to the precautions or safeguards taken by the Port Trust to keep the goods out of damages or deterioration, it is not possible to accept the case of the appellant that the accident was due to an act of God.
36. The reason for the fire could not be found out in the enquiry conducted for that purpose also would not any way categorise or convert the fire accident of the Anchor Gate warehouse as an act of God as contended by the Port Trust. In order to be an act of God, it is well settled that it must be a direct, violent, sudden and irresistible act of nature as could not by any amount of ability have been foreseen or even if foreseen could not by any amount of human character or skill have been resisted. In the evidence, nothing has been even suggested so as to associate the accident to act of God or to think of that the accident might have been due to the act of God. No natural cause has been any where suggested to, by any of the witnesses examined on behalf of the Port Trust.
37. The blunt defense and argument on behalf of the Port Trust is that since the cause of accident could not be found out in the enquiry, it must be an act of God. In the absence of any material even to suggest remotely the link the accident to act of God, it is very difficult for us to accept this. The learned Judge in his judgment has clearly stated that the defence of act of God to succeed, there should be some catasperapha as a result of an earth quake, a volcanic eruption or a tidal wave of vast proportion. The lightening is one of the more useful illustrations of an act of God in case of fire. It is not the case of the Port Trust that the fire occurred due to lightening. To be an act of God, the occurrence in question must be the result of natural causes and not human agency. The Port Trust has not let in any evidence to prove that the fire was as a result of natural cause exclusively or cause an extraordinary nature and that it could not be anticipated or provided against.
38. A faint argument has been made by the learned counsel appearing for the appellant that the suits filed by the Insurance Company claiming themselves to have subrogated to the rights of the consignee on payment of their insurance claim are not maintainable in law as per the decision of the Supreme Court in UNION OF INDIA VS. SRI SARADA MILLS LTD. .
39. There is absolutely no merit. As a matter of fact, the Civil Suits in C.S.Nos.496 of 1983, 288 and 536 of 1984, 82 to 84, 532, 533, 619, 621, 622, 623 and 624 of 1985 are not filed by the Insurance Company claiming independent right as underwriters to maintain the suit in their own name without reference to the person assured. The Insurance Company was arrayed as the co-plaintiff and in all the cases, the first plaintiffs are the importer of goods. Hence, this argument of the learned counsel for the appellant has to be rejected and the same is rejected. Of course, before the learned Judge, no such contention was raised. Apart from the above points, no other point is raised or argument was advanced on behalf of the appellant.
In view of the above discussion, there is absolutely no reason to interfere with the judgment of the learned Single Judge, the correctness of which is assailed in these appeals. Hence, all the Original Side Appeals are dismissed. However, there shall be no order as to costs.