Clause stipulated in the bill of lading would relieve carrier from liability in case of loss or non-delivery of goods.

BASHEER AHMED SAYEED J.

These are two appeals preferred by the first and second defendants against the judgment and decree of the learned Second Additional City Civil Judge in O.S. No. 656 of 1950. The Home Insurance Co. Ltd., represented by its agents, Messrs. Volkart Brothers, happen to be the appellant in C.C.C.A. No. 88 of 1952 and the Indian Steamship Co. Ltd., Calcutta, happen to be the appellant in C.C.C.A. No. 89 of 1952

The plaintiff company, who is the respondent, brought a suit against the two appellants for directing them or either of them to pay a sum of Rs. 2, 000, being the value of the goods with interest at six per cent. per annum and for costs. The plaintiff is a registered firm, carrying on business at Madras. The first defendant in the suit is the steamship company and the second defendant is the insurance company, having their agents at Madras. In May, 1949, the plaintiff had purchased from Messrs. N. Jivanlal and Co. Ltd., Bombay, four drums of English sodium sulphide weighing 20 cwts. at Rs. 31 per cwt. and five drums of sodium hydrosulphite weighing 1, 175 1bs. at Re. 1 per 1b. Under instructions from the plaintiff, the said Jivanlal and Co. Ltd. shipped the goods to Madras through the first defendant company per its ship "S. S. Indian Shipper". Under similar instructions from the plaintiff, the said Jivanlal and Co. had also insured the goods with the second defendant company. The plaintiff honoured the draft sent by the vendors through the Indo-Commercial Bank, Madras, for a sum of Rs. 1, 945-15-9, and obtained delivery of the documents of title from the said bank

The ship "Indian Shipper" arrived at the Madras port on 28th May, 1949. But when Sri Rama Vilas Service Ltd. went to clear the goods under instructions from the plaintiff, the goods had not been landed at the port. The first defendant was informed of this fact. Though the first defendant by his letter dated 9th July, 1949, informed the plaintiff that a special search would be made at Colombo and at Calcutta to ascertain whether the goods were overlanded at any one of those ports, nothing tangible resulted therefrom. As the goods covered by the bill of lading were not delivered, the plaintiff preferred a claim with the first defendant for a sum of Rs. 2, 000. After considerable correspondence, the first defendant company on 26th October, 1949, repudiated its liability under the bill of lading, on the ground that the bill of lading contained a condition that the goods were "shipped on deck at shipper's risk". The first defendant would appear to have also suggested to the plaintiff to prefer the claim against the insurance company the second defendant. The second defendant company also repudiated its liability on 12th December, 1949, on the ground that the policy was issued on F.P.A. terms and that the second defendant was not liable to make good the value of the goods lost or any portion thereof. The plaintiff averred that neither the first defendant nor the second defendant could avoid liability to make good the loss of the goods covered by the said bill of lading or by the policy of insurance on any of the grounds stated by them in the course of their correspondence. Therefore, the plaintiff brought the suit for the reliefs contained in paragraph 20 of the plaintIn its written statement, the first defendant company contended that the goods were carried with the consent of the plaintiff and at his risk on the "S.S. Indian Shipper" with an endorsement on the bill of lading that the goods were shipped on deck at shipper's risk and that since notice of the loss of goods not having been given as per clause 10 of the bill of lading, they were not liable for the non-delivery of the goods or any loss arising therefrom. The second defendant company in a long statement pleaded that the carrier, viz., the first defendant company, was under no liability to the plaintiff and, therefore, the second defendant also had no liability to discharge in