(R. BANUMATHI,J.)

1. Being aggrieved by the Judgment and Decree in C.S.No.11 of 1990 holding that Appellant – Madras Port Trust is liable to pay a sum of Rs.28,21,979/- and directing the Appellant to pay interest at the rate of 6% per annum from the date of suit till the date of realisation for the alleged damage caused to the consignment - Automatic Cycle Internal Grinder with extra toolings and spares, Madras Port Trust-2nd Defendant has preferred this Appeal. Since most of the facts are not in controversy, we are not elaborately referring to the pleadings as well as the evidence and we shall refer only to that part of the pleadings and the evidence to focus the points involved for decision in the Appeal.

2. The 1st Plaintiff is Public Limited Company having its Office at Jaipur and the 2nd Plaintiff is limited Insurance Company incorporated in Japan. A consignment consisting of two cases of Automatic Cycle Internal Grinder for Grinding Bore of Bearing Races with Extra Toolings and Spares was entrusted to the 1st Defendant – Mitsuit O.S.K.Lines Limited, Japan for safe carriage by sea. The consignment was sent in the vessel M.V. KARINA BONITA and the vessel arrived at Madras Port on 5.4.1989 and berthed on 6.4.1989. Vessel M.V. KARINA BONITA discharged two cases of Automatic Internal Grinder with spares on 9.4.1989. The Steamer Agent of 1st Defendant – M/s.International Clearing and Shipping Agency signed in the Import Tally sheet-Ex.D3. The consignment was in the custody of 2nd Defendant-Madras Port Trust as statutory agent.

3. Case of Plaintiffs is that at the time of taking delivery, the consignment was extensively damaged. Further case of Plaintiffs is that the 1st Plaintiff was informed by the 1st defendant / carrier that the said damages was due to hitting of wagons while shunting the consignment on 12.4.1989. Case of Plaintiffs is that the damage was due to the negligence/misconduct of the employees of the 2nd Defendant and the damage was surveyed. The damaged consignment was auctioned through auctioneer – Murray & Co., and after deducting salvage value of Rs.3,60,338.50ps, the loss comes to Rs.28,10,325/-. Adding other expenses, Plaintiffs claim total loss of Rs.28,21,979/-. According to Plaintiffs, 1st Defendant – carrier at Sea is legally bound to deliver to the 1st Plaintiff the consignment in good condition in which it was entrusted to it by the consignor at Japan and having failed to do so, the Sea carrier is liable to pay the loss.

4. It is the further case of Plaintiffs that the 2nd Defendant annotated the receipt of the consignment at the time of discharge from the vessel and trying to avoid the liability and the entire damage had occurred due to the negligence of the 2nd Defendant – Port Trust. The 1st Plaintiff is not in a position to pinpoint as to who would be liable for the above said damage and hence the suit has been filed against both the Defendants. The 2nd Plaintiff Insurer – a limited liability Company incorporated in Japan paid the insured value of the consignment and got subrogated to the rights of the 1st Plaintiff. To avoid any technical objection, both the Plaintiffs have joined and filed the suit.

5. The 1st Defendant – Carrier at Sea resisted the suit inter alia contending as follows:-

The cargo was carried by the vessel with due diligence and the ship arrived at the Port of Madras on 5.4.1989 and two cases were discharged from the vessel into the custody of the 2nd Defendant on 9.4.1989. At the time of discharge from the vessel, both the cases were in good order and condition. According to the 1st Defendant – Sea Carrier, even according to Tally Receipts issued by the 2nd Defendant, there was no damage to the contents of the two cases at the time of discharge from the vessel on 9.4.1989. As per Section 42(7) of the Major Port Trusts Act, only the 2nd Defendant is liable for any loss or damages occasioned to the consignment after the discharge of the cargo from the vessel. Subsequent