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1. In this appeal by certificate the defendant-respondent was the Home Insurance Co. On nationalisation of the general insurance business the said Company was taken over by United Insurance Co. At the request of the parties, therefore, before the commencement of the hearing of the appeal we directed the United India Insurance Co. to be substituted in place of the original respondent. But, hereinafter in this judgment, by the defendant or the respondent would be meant the Home Insurance Co.

2. The plaintiff appellant consigned 25 cases of scented betel nuts valued at Rs. 37,500/- from Nagapattinam to M/s. M. P. Company of Penang in Malaysis as per the invoice Ext. A-1. The shipping agents of the appellant were M/s. Dayaveerapardia Nadar and Company. The goods were given to the Port Officer, Nagapaitinam with an application for export on 11.1.1960 According to the invoice each of the 25 cases contained 600 packets of betel nuts each weighing half 1b. The total weight of one case was 336 1bs including the weight of the case. The total weight of the 25 cases come to 75 cuts The Customs Collector' Nagapattinam issued a certificate of shipment by 'S.S. State of Madras' which sailed from Nagapattinam on 15 1 1960 The plaintiff insured the goods with the defendant company under Marine Insurance policy of that date. The risk was covered from warehouse to warehouse The 25 cases were loaded in boat No. 11 which left Nagapattinam port sharf at 6.00a m on 15.1.1960 to discharge the cargo on boari 'S.S. State of Madras'.At that time the wind and the sea were normal and moderate. The boat reached along side the steamer at 7.00 a.m. and was kept for her turn to discharge. In the meantime strong winds suddenly set in and the sea became rough, as a result of which high swello splashed into the boat and the cargo became wet by sea water. The turn of the boat to load the cargo on the ship came at about 2.00 p.m. and the 25 cases were delivered on board in a wet condition. The bill of loading issued by the Eastern Shipping Corporation Ltd. on 15.1.1960 also contained a note "all the goods wet by sea water". It was also noted that the ship was cot responsible for the condition of the contents. It reached Penang on 20.1.1960 and the consignee M.P. Company found the goods wet and damaged. They gave intimation to this effect to the defenant's agent at Penang and also applied for survey as per the provisions of the Policy. The survey of the goods was conducted by one Mr. N.F. Paul on 30.1 1960 and a report was issued on 23.2.1960. Demage was assessed at hundred percent of the value of the stained goods and as per the order of the Chief Public Health Officer, Penang the entire goods were destroyed.

4. The defendant respondent in its written statement took a plea of jurisdiction of the Nagapattinam Court to try the suit. The learned Subordinate Judge who tried it overruled this objection. The point was not reagitated in the High Court and, therefore, we did not permit learned Counsel for the respondent to raise the question of jurisdiction in this Court, Moreover no prejudice was shown to have been caused to the respondent on account of the alleged lack of jurisdiction in Nagapattinam Court.

10. Ext, A-1 is the invoice signed by the plaintiff which gives the description of the goods and the value. In the application to export dated 11-1-1960 in column (2), is mentioned 25 cases and in column (4) as against "Description and contents of each packages" is mentioned 'Scooted Betel-nuts (at 336 1b. each)". The total weight mentioned is 75 cuts, The evidence of the plaintiff is that he gave Ext. A-1 alongwith the goods to his clearing agents Jayaweranandis Sadar & Co. whose agent is P.W. 5, Dharasrajan. His evidence is of great importance and we will, therefore, refer to portions of it, He gave that on receipt of the application for export, he prepared the shipping bills Exts. A-2 to A-4 and signed them. He filled up the various columns in the Shipping bills and gave the description of the goods, their weight and value as per the invoice. In the Shipping bill Ext. A-2 and similarly in the other bills also the gross weight of 25 cases is mentioned as 75 cuts and the net weight mentioned is 66 cuts. and odd. The c.i.f. value mentioned is Rs. 37, 500/-. Dhermarajan in his testimony says that he opened three cases and checked them as to whether there was any false bottom in any of them. He opened a packet of betel nuts to find out whether it was scented betel nuts. He weighed 4 or 5 packets and each weighed uniformly half a pound.He calculated the net weight and adding tha weight of the cases arrived at the figure of the gross weight. The cases were made of deal wood of big a size like cigarette 3eal wood cases. Each case contained 600 packets. He paid Rs. 40/- based on the weight as Port dues. The Customs Collector ordered examination of the goods as per his order on Ext. A-3. P,W. 1,5. Vincent, Inspector of Customs then posted at Nagapattinam checked the goods in presence of Dharamarajan, He opened 3 cases and checked for false bottom, counted the packets in each, weighed 2 or 3 packets and each weighed half a pound. Then the goods were brought to the wharf. Thereafter they came under the custody of the weighing department of the shipping company and could not be removed by others. P.W. 1 made the endorsements on the shipping bills. P.W. 5 then produced them to the Customs Collector who after verifying the report of P.W. 1 made the order "pass". The order of the Customs Collector enabled the goods to be exported.

15. As against this unimpeachable evidence of the plaintiff both documentary and oral the only evidence produced on behalf of the defendant which created the difficulty in the way of the plaintiff's claim is the wrong mentioning of the size in Exts, B-3 and B-4 on the basis of which the total measurement-weight mentioned in the bill of lading was wrong. D.W. 1 Pariyanagan was a Shraf Clerk of the shipping company and his duty was to take measurements of bales and cases to be loaded in the Ship ,'State of Madias". At page 221 of Exhibit B-3 there is an entry dated 14.1.1960 in respect of S. S. Penang marked goods Exmibit B-4. According to him he measured 4 or 5 cases. The cases were of uniform sizes He noted the measurements of the case only in Ext. B-4 as 25" x 15" x 12", After noting the measurements in the measurement book, Ext, B-3 he handed it over to the office. But it is to be noted that some entries were in pencil made by D.W. 1 and there were overwritings in ink made by D.W. 2 Aravdyath, the chief clerk incharge of freight department in R S. V B. a Co,, Nagapattinam. The entries are said to have been made at the fog end of the dax when it was getting dark. According to the evidence of the man of Rashiklal & Co. betel nuts for internal despatch in the country are generally contained in cases of the sizes of 25" x 15" x 12" It appears to us that D.W. 1 was careless in performing bis duty. On learning that the cases were of betel nuts, just by estimate, on the basis of his knowledge of the general size of the betal nuts cases he noted the size of the cases to be 25"x15x12" It would appear from the evidence of D.W. Aravamudu, the chief clerk in-charge of the freight department of the shipping company at Nagapattinam that D.W. 1 was clerk incharge for taking the measurements, D.W. 2 had nothing to do with if. He merely entered the measurements on the basis of what was claimed to have been done by D.W. 1. The measurement book, Ext B. 3 contained the pencil entries made by D.W. 1. The ink entry in Ext. B-4 was made by D.W. 2. If the goods were no! wet and would have been delivered to the consignee in good condition, in all probablity, more freight would have been charged an there was a charge of under freight at Nagapattinam. But D'W. 2 admits in cross-examination that in a case where the goods lost or destroyed or becomes damaged no question of collection of extra charge arises. Ext. 8-4 is at page No. 221 in Ext. B-3. This contains the entry in question showing SC 25 C/s Scented nuts. The measurement of each case noted is 25' x 15" x 12". On the basis of this measurement in the nil of lading Ext. B-l the measurement and weight mentioned is 1 ton 14 feet and 7 inches. This is a very technical way of getting the measurement and weight by the shipping company which could not be intelligible to D.W. 5 or any other man. Nor did D W. 5 care to verify as to whether in the bill of lading the measurement and weight mentioned was correct. He was merely marked to pay ; the total freight of Rs. 142 08 which he paio. As against the weighty and overwhelming evidence both oral and documentary on behalf of the plaintiff we are not prepared to give credence and weight to the evidence of D.W. 1 and the entry Ext. B-4 made by him in the measurement book, Ext. B-3. In our opinion he did not actually measure the cases and just to show the discharge of his duties at the fag end of the day he made the entry by guess.