The central legal point established in the judgment is the liability of the Port Trust as a bailee under the Major Port Trusts Act and Cochin Port and Dock Regulations, 1975, and the requirement for the Port Trust to take reasonable care and caution in protecting the goods entrusted to it.

Usha, J.

Second plaintiff in O.S.163/82 on the file of the court of Subordinate Judge, Cochin is the appellant. The first respondent was the first plaintiff in the suit and the 2nd respondent was the defendant therein. The suit was instituted by the 1st respondent for recovery of a sum of Rs. 36,258.79 as damages from the 2nd respondent with interest and costs of the suit. The goods despatched by the 1st respondent from Alleppey to Cochin for shipment from Cochin Port on board the Ship S.S. President Roosevelt due to arrive at Cochin on 16-11-1981 and stored in Q5 shed by the 2nd respondent, were lost in the fire that broke out in the shed on 20-11-1981, The appellant, who was originally impleaded as 2nd defendant was transposed as 2nd plaintiff on payment of the value of goods to the 1st plaintiff and obtaining assignment of the rights of the first plaintiff under letter of subrogation and power of attorney. The court below dismissed the suit on the ground that it is not maintainable in view of the provisions contained under S.121 of the Major Port Trusts Act and Regulation 134 of the Cochin Port and Dock Regulations, 1975. It also held that the first respondent herein suffered loss- not on account of the negligence on the part of the 2nd respondent.

2. We do not think that the provisions of S.121 of the Major Port Trusts Act have any direct application in the present case. When the goods are entrusted with the Port Trust, their duty is certainly in the nature of a bailee and they are expected to take reasonable care. The 2nd respondent herein cannot claim a total exemption from the standard of care to be taken by a bailee by taking recourse to the provisions contained under S.121. A Division Bench of this Court had occasion to consider in Cochin Port Trust v. Associated Cotton Traders Ltd., & others, 1983 KLT 562, the nature of the duty of the Cochin Port Trust towards the owner of the goods entrusted with the Port Trust. In the above case also, goods were destroyed in a fie which broke out in the godown of the Port Trust in which the goods were stored. After elaborately considering the principles to be applied in such circumstances to assess the liability of the Port Trust, this Court held that the Port Trust which is in the position of a bailee has a duty to take all proper measures for protection of the goods. When goods entrusted to a bailee are lost or damaged, there is initial presumption of negligence or failure to take reasonable care of the goods on the part of the bailee. Onus of proof is on the bailee that he had taken necessary precaution and care required under law. When fire breaks out in the premises under the control of the bailee, as between the parties to the case, bailee alone will be in a position to explain the cause of the fire. It is a fact specially within his knowledge and therefore u/s.106 of the Evidence Act, burden of proving mat fact will be upon him. We are in full agreement with the above view taken by the learned judges regarding the nature of the responsibility of the 2nd respondent towards the goods entrusted with it by the 1st respondent. Of course, no reliance was placed in the above case on the provisions contained under S.121 of the Major Port Trusts Act which reads as follows:

"121. Protection of acts done in good faith:-No suit or other legal proceeding shall lie against a Board or any member or employees thereof in respect of anything which is in good faith done or intended to be done under this Act or any rule or regulation made thereunder, or for any damage sustained by any vessel in consequence of any defect in any of the moorings, hawsers or other things belonging to or under the control of the Board."

The present suit is for claiming compensation for the damage sustained by the plaintiff when goods entrusted with the Port were destroyed in fire. The damage is sustained due to the fire which broke out in Q5 shed and not due to any action by the Board, its member or employe