The burden of proof to establish the actual quantity of goods shipped rested on the plaintiff, and the carriers and bailees could not be held liable for the shortage based on the disclaimer of responsibility and liability indicated by the endorsement 'SAID TO CONTAIN' on the bill of lading.

C. Nagappan, J.

1. The appeal in A.S.No.948/2005 is directed against the judgment and decree dated 11.1.2005, passed by the Additional District and Sessions Judge, Fast Track Court No.IV, Chennai, in O.S.No.836 of 1998 on his file. The sixth defendant is the appellant.

2. The appeal in A.S.No.104/2012 is preferred by the fourth defendant in the said case against the very same judgment and decree.

3. Since both the appeals arose against the same judgment and decree, they are heard together and a common judgment is rendered.

4. The first respondent herein filed the suit seeking for a judgment and decree directing the defendants to pay a sum of Rs.7,21,607/-together with future interest at 18% per annum thereon from the date of plaint till realisation and for costs.

5. The case of the first respondent/first plaintiff is briefly stated thus:

On or about 10.1.1997, the third defendant/consignor/ shipper entrusted to the first defendant a consignment of 1 x 20 container No.XTRO containing 250 cartons (5000 pieces Floppy Disk Drive 1.44 MB) weighing 2350.000 Kgs as per purchase order No.PDB.3160/96 dated 19.12.1996, of the first plaintiff to be shipped from Singapore to Madras and the first defendant accepted the said cargo for transportation by sea and issued a bill of lading bearing No.SINN 37450 dated 10.1.1997, to carry it in ship TIGER BRIDGE.

6. It is further stated by the first plaintiff that the cargo appears to have arrived at Madras Port on or about 17.1.1997 and moved to Container Corporation of India Ltd., Tiruvottiyur, (hereinafter referred to as CONCOR), on 28.1.1997, and the original seal of the container was said to be intact when the container had reached the Container Freight Station of CONCOR, the fifth defendant, which is about 5 kilometers away from Chennai Port Trust. According to the first plaintiff, the container was inspected by the Customs on 11.2.1997, after breaking open the original seal and a random checking was done to four packages out of 250 and after the Customs inspection, a fresh seal by CONCOR, the fifth defendant, was put on the same day.

7. It is also stated by the first plaintiff that the Clearing Agent, namely M/s.Sabari Enterprises, of the first plaintiff requested WETCALFK & HODGKINSON (PVT) Ltd., who are the authorised Surveyors of CONCOR on 12.2.1997, to carry out pre despatch survey of the suit consignment of Floppy Disk Drive packed in cardboard carton, at the CONCOR, Chennai and the above named Surveyor along with the representative of the said Clearing Agent inspected the container externally and observed to be sound and in the presence of the said Surveyor, the seal of the container was broken and the doors were opened and the contents were destuffed from the container and they found that there was a total shortage of 50 cartons.

8. It is further stated in the amended plaint, that at the request of the second plaintiff, M/s.Surveyors & General Surveillance also participated in the said survey on 12.2.1997, at CONCOR and they found 200 cartons were in the container occupying about 45 to 50% of the space in the container, and there was a shortage of 50 cartons containing 1000 pieces of Floppy Disk Drive and the Surveyors submitted their report dated 18.2.1997. According to the first plaintiff, the value of the short delivered Floppy Disk Drive 1000 pieces came to Rs.7,20,432.50 and adding survey fee, the total comes to Rs.7,21,607/- and the shortages and the resulting loss to the plaintiffs were directly due to the gross negligence and/or misconduct of the defendants, their agents, their employees and servants and therefore, they are liable to compensate the first plaintiff for the said loss.

9. It is also stated by the first plaintiff that they preferred a claim on all the defendants by its letters dated 11.2.1997, 5.3.1997 and 6.3.1997, to settle the claim. According to the first plaintiff, the suit consignment was insured with the second plaintiff for a sum of Rs.36