Appellate Division Cases
(Civil)
PARTIES
Chalna Carriers and Fibres Ltd. and another …………………………..Appellants
Vs
M/S. Shainpukur Navigation Ltd. and others ……………….Respondents
JUDGES
Md. Ruhul Amin J
M. M. Ruhul Amin J
Date of Judgment :7th December 2005
The Section 36 Pilot’s Ordinance, 1969 Section 3.
The Petroleum Rule, 1937
The plaintiffs failed to prove and show any valid licence at the relevant time and in view of the fact that the Master, at the age of 75 years at the relevant time, was driving the vessel M. V. Tapash, it can not be conclusively and doubtlessly held that accident took place due to negligence and carelessness of the Master of the vessel M. V. Shainpukur-1″ …………………………………………………………………..(8)
His evidence as to time of accident was hearsay since he stated that Master of the vessel told him about the time of accident. It may be mentioned Master of the vessel was not examined without offering any explanation. P. W. 6 was the Lasker of the vessel and he was on the vessel at the time of accident (10)
In our view the said witnesses were procured witnesses and the quality of their evidence does not inspire credence to accept them as a reliable witnesses in respect of the fact stated by them. P. W 6 was the employee of the plaintiff No. 1 and is the lone witness who deposed about the time of accident. In the facts and circumstances of the case there was requirement of corroboration of the evidence of P. W. 6. The High Court Division in our view, was quite correct in not relying upon the evidence placed before the Court by the plaintiff no.l for establishing the fact that collision took place at 5.30 A. M (10)
Shaheed Alain, Senior Advocate, instructed by Md. Sajjadid Huq, Advocateon-Record For the Appellants. Mohammad Ohiullah, Advocate (appeared with the leave of the Court) instructed by. Md. Aftab Hossain, Advocate-on-Record For Respondent Nos. 1 and 2.Not represented. Respondent Nos. 3-6
JUDGMENT
1. Md. Ruhul Amin:- This appeal by leave has been filed by the plaintiffs against the judgment dated November, 6, 1990 of the High Court Division in Admiralty Suit No. 8 of 1988 dismissing the same . The case of the plaintiffs is taht Chalna Carriers and Fibres ltd. a Private Limited Company (plaintiff No.l) is the owner of oil Tanker, M.V. Tapash (plaintiff No.2), that the said oil Tanker loaded with 4,06.000 liters of kerosene started from Fatullah Ghat for Bhairab Bazar and while reached near Baktabali Ghat within Police Station Fatullah district-Narayanganj the vessel M.V. Shainpukur-1 (defendant No.5) owned by M/S. Shainpukur Navigation Ltd. a Private Limited Company (defendant
No.l) which was coming from Munshiganj upon changing its course wrongly hit the Oil Tanker M.V. Tapash and thereby caused damage to the Tank No.l and because of bursting of Tank No.l Kerosene about 42,367 liters valued about Tk. 3,05,829.74 spited into the river. It is the case of the plaintiffs taht their tanker was on the right position as per Navigation Rules and the accident took place because of the negligence of the employees of the defendant No.l. as well as of the defendant No.6. The plaintiffs averred that at the relevant time defendant No. 6, Master-in-charge of M.V. Shainpukur-1 piloted the vessel negligently and caused the accident, that the matter was reported to the Fatullah Police Station on the date of accident i.e. 13.05.1986 and a case was registered and on investigation Investigating Agency having found prima-facie case against the employees of the defendant No. 1 submitted report for prosecution and the case was submitted to the Narayanganj Magistrate for trial, that the matter was also investigated by the Department of Shipping and report was submitted on August 25,1986 with the finding
that the defendants were negligent. It is the contention of the plaintiffs taht as a result of the negligent act of the defendants they suffered loss of Tk. 5,34,439.74 and since plaintiffs have suffered the said loss because of the negligence of the defendants, they are entitled to a decree for an amount of Tk. 5,34,439.74 against the defendants. 2. The suit was contested by defendant Nos. 1 ( the company) and 6 ( the Master-in-charge of the vessel) by filing joint written statement denying the material averments made in the plaint and stating, inter alia, that the suit is not maintainable being barred by limitation and also because of waiver, estoppels and acquiescence, that the matter in issue of the suit is also directly and substantially an issue in Fatullah PS. Case No. 7 (5) 1986 and Case No. 8 of
1986 pending in the Marine Court, Dhaka registered in connection with the collision of plaintiff No. 2 and defendant No.5 and as such the suit is not maintainable. It is the definite case of the defendants that while M.V. Shainpukur-1 was on her way to Dhaka from Damuddah and reached near Baktabali Ghat within Fatullah Police Station at about 3.30 A.M. then collided with M.V. Tapash because of the negligence as well as heavy and overloading of the vessel coming from opposite side, that defendant vassal Shainpukur-1 a passenger launch and its Master, defendant No. 6 were in perfectly right position, that visual light of M.V. Tapash was not lighted, tht Master of M.V. Tapash was an old man of 67 years and because of the carelessness of old Master and due to darkness of the night M.V. Tapash was proceeding through the wrong side of the buoy and that inspite of instruction by the Master of M.V. Shainpukur-1 to the Master of M.V. Tapash to proceed by the right side but the Master of M.V. Tapash did not do so and as a result there had been collision, that there was no negligence on the part of the Master of M.V. Shainpukur-1 and he tried his best to avoid collision but because of negligence of the Master of M.V Tapash collision could not be avoided, taht because of the collision M.V. Shainpukur-1 was also damaged. The positive case of the defendants is taht the collision took place and the passenger launch suffered heavy damage due to negligence and carelessness of the Master of M.V. Tapash and that the night was dark and the collision took place at 3.30 A.M. since M.V. Tapash was proceeding violating the Marine Rules and Regulations.
3. It is the case of the plaintiffs that the collision took place at 5.30 A.M. and as against that it is the case of the defendants that collision took place between 3.30 and 4.00 A. M. on May 13, 1986. 4. P.W.I is the Managing Director of the Company that owns the vessel M.V. Tapash. He has stated that collision took place at 6 A.M. It is seen from the evidence of P.W.I that M.V. Tapash loaded with Kerosene started from Fatullah Ghat for
Bhairab Bazar at 5.30A. M. and after journey of 1 hours vessel M.V. Tapash met with an accident at Baktabali Ghat. In cross-examination he has stated taht whatever he has stated’ are on hearsay”. The witness has stated in his cross-examination that he is not aware whether the Master of the vessel had lisence. The witness has stated that there might have no pilot of the vessel on the date of occurrence. P.Ws. 2-4 who claimed to be the persons of the locality have stated that the accident took place “when the sun was about to rise” P.W.5 Sukani of the vessel has stated that M.V. Tapash left Fatullah terminal at 5 A.M. And reached Bakhtabali Ghat at 5.30 A.M. and at taht time sun has arisen. This witness in his cross- examination has stated that he knew about the time from the Master of the vessel. It may be mentioned Master of the vessel was not examined by the plaintiff. Hence evidence of PW.5 is of no purpose to the plaintiff on the question of time of col- I lision. P.W.6, Lasker of the vessel stated that at 5.A.M. M.V. Tapash left Fatullah Ghat for Bhairab Bazar and arrived at Bakhtabali Ghat at 5.30 A.M. And then accident took place. In cross-examination the witness has stated that age of the Master of the vessel was about 60 years. In fact from the materials on record it is seen the Master of the vessel was of age more than 75 years.
5. That defendant in support of his case examined the Master of the vessel, the D.W.I, who has stated that accident took place at 3.30 A.M. on 13.05.1986. This witness has also stated that M.V. Shainpukur-1 stated from Damodya on May 12,1986 at about 17.30 hours as per time table (marked Ext.2) and reached at 2.30 hours at Katpatti and left Katpatti in between 3.25 and 3.30 and arrived at Bakhtabali Ghat at rest time. The witness has also stated taht Katpatti Ghat is on the western side of the river and he with the vessel as proceeding by the western side and was on the right side and at that state of the matter collision took place due to negligence and fault of the Master of M.V. Tapash, had no light and M. V. Tapash was heavily overloaded. In cross-examination the witness has stated that after the accident he was on the vessel M.V. “Shainpukur-1 had light but M.V. Tapash, that M.V, Shainpukur-1 upto 5 A.M. and thereafter he started for Fatullah Police Station for recording a G.D. entry and after informing the owner of the vessel Shainpuku-1 he came back at Bakhtabali Ghat and that while he left the vessel at 5 A. M. then 10 Ansars were in the vessel.
6. Both the parties filed documents in support of their respective case. The High Court Division about the quality of the oral evidence brought before the Court through the deposition of P. Ws. 1-6 observed that P. W. 1 at the time of occurrence was not present, P. Ws. 5 and 6 are the employees of P. W. 1 and on consideration of the evidence of P. Ws. 2-4 in its entirety observed that they were procured by the plaintiffs. In the background of the said state of the matter the High Court Division finally observed “it is not safe to rely upon solely on the above evidence of the P. Ws. in order to reach a final decision in this case.” The High Court Division on consideration of the evidence of D. W. 1 and the Ext.2 i. e. time table of the launch M. V. Shainpukur-1 observed “that Shainpukur-1 was scheduled to reach Dhaka at 4.00 A. M. and accordingly it was to reach near Baktabali Ghat by 3.00 A. M.” It may be mentioned the plaintiff put into evidence the inquiry report submitted by the Department of Shipping in connection with the collision between M. V. Tapash and the M. V. Shainpukur-1 and the same was marked as Ext. A.
7. The High Court Division on consideration of the Ext. A and the evidence of the P. Ws. has observed “Since the admitted Ext. A speaks that Master of both the vessels should be prosecuted for the negligence and since the oral evidence of P. Ws. are not safe to be relied upon exclusively, it appears to me that the plaintiffs have failed by producing oral evidence to prove that the accident took place near Baktabali Ghat at 5.30 A. m. From the evidence of D. W. 1 and the time table Ext.2 it appears that the vessel Shainpukur-1 reached Baktabali Ghat at about 3.00 A. M.-to 3.30 A. M. In this case time of accident is an important factor in view of the fact that if collision took place at about 5.30 A. M. there was every possibility for the local witness to see the occurrence and if the collision took place at 3.30 or 4.00 A. M. it would not be possible for the local witness to see the accident in dark-ness. In view of the above it is difficult to hold that the Master of the vessel M. V Shainpukur-1 is responsible for the aforesaid collision and the accident took place at 5.30 A. M. on 13.5.86.”
8. It may be mentioned in this suit certain preliminary objections were raised by the defendants. Of those preliminary objections one was that M. V. Tapash had no lisence to carry petroleum products on the relevant date i. e on 13.5.1986. This objection has been raised upon referring to the Rule 13 of the Petroleum Rule, 1937. In fact there was no lisence on that date to carry petroleum product by M. V Tapash. The other preliminary objection made was that the Master of the vessel who was more than 75 years old had no certificate of competency to act as Master at that age. From the plaintiff’s side no certificate as per provision of ” was brought on record showing that the Master of M. V Tapash had competency certificate to act as Master at that age. The last one was that on the date i. e. on 13.5.1986 the vessel was without pilot in violation of the provision of the Pilot’s Ordinance. 1969 . It is seen from section 3 of the aforesaid Act the vessel was compulsorily required to have Pilot for plying in the root in which M. V. Tapash was sailing. The fact was that vessel M. V Tapash had no pilot evident from the evidence of P.W. 1 . In the background of the afore state of the matter the High Court Division finally
observed that all those were the “instances of negligence on the part of the plaintiffs. In view of the fact that the plaintiffs failed to prove and show any valid licence at the relevant time and in view of the fact that the Master, at the age of 75 years at the relevant
time, was driving the vessel M. V. Tapash, it can not be conclusively and doubtlessly held that accident took place due to negligence and carelessness of the Master of the vessel M. V. Shainpukur-1″. The High Court Division on consideration of the materials on record arrived at the finding “the plaintiffs have failed to prove that the accident took place at 5.30 A. M. on 13. 5. 86 due to negligence of the Master of M. V Shainpukur-1. In view of the facts and circumstances of the case and materials on record I am of the view that plaintiffs have failed to make out a case for a decree for the alleged damages as claimed by the plaintiffs”. On the aforesaid findings the High Court Division dismissed the suit.
9. The plaintiffs preferred petition for leave to appeal and leave was granted to consider the contentions that high Court Division wrongly discarded the evidence of P. Ws. 1-6 as to the time of accident and was not correct in placing reliance on the oral evidence of D. W. 1 and the time table of the passenger launch Shaipukur-1. that the High Court Division failed to discuss the evidence wherefrom it is clearly seen that defendant No.l’s vessel M. V Shainpukur-1 was on the wrong side of the buoy, that High Court Division dismissed the suit on taking into consideration non relevant matters like absence of lisence, pilot, and age of Master of the plaintiff No.2, (vessel) ignoring the report of the Department of Shipping to the effect that the Master had good eyesight in spite of his age, that the High Court Division failed to notice that the facts speak for themselves in the case i. e. defendant No. I’s vessel entered deep into the plaintiffs vessel shows the negligent character of its plying that had plaintiff’s negligence caused the accident that fact can only go towards the mitigation of amount of damages but not to absolve the defendants altogether from their liability.
10. The plaintiffs to establish their case that collision occurred at 5.30 A. M. examined P. Ws. 1-6. P.W. 1 at the relevant time was not present at the place of occurrence. So whatever he had deposed about the time of collision was hearsay. P. W 1 has stated that collision took place at 6. A . M P. W 5 Sukani deposed that at the time of accident he was on the vessel . His evidence as to time of accident was hearsay since he stated that Master of the vessel told him about the time of accident. It may be mentioned Master of the vessel was not examined without offering any explanation. P. W. 6 was the Lasker of the vessel and he was on the vessel at the time of accident. On consideration of the evidence of P. Ws. 2-4 the High Court Division observed that the said witnesses were brought by the plaintiff No. 1 to prove his case as to time of accident and position of is vessel in the river. We have considered hereinbefore the quality of the evidence of P.Ws. 2-4 and in our view the said witnesses were procured witnesses and the quality of their evidence does not inspire credence to accept them as a reliable witnesses in respect of the fact stated by them. P. W. 6 was the employee of the plaintiff No. 1 and is the lone witness who deposed about the time of accident. Tn the facts and circumstances of the case there was requirement of corroboration of the evidence of P. W. 6. The High Court Division in our view, was quite correct in not relying upon the evidence placed before the Court by the plaintiff no. 1 for establishing the fact that collision took place at 5.30 A. M. It is the case of the defendants that accident took place in between 3.30 and 4.00 A. M. and D.W 1, Master of the passenger launch M. V Shainpukur-1 had deposed about the time of collision upon referring to the time table (Ext.2) of the launch for plying on the root. It was the contention of the defendants that the Master of the ship M. V Tapash was too old and that because of his oldness he was not fit to ply vessel at night. It is seen from the materials on record that at the time of collision the Master of the vessel M.V Tapash was
more than 75 years old. Master of the vessel after attainment of 57 years is required to obtain certificate of competency as per provision of Section 36 of the “BANGLA”
“BANGLA” As stated hereinabove Master of the ship was not examined by the plaintiff No. 1 and no material was brought on record to establish taht at the age of 75 years the Master had the certificate of competency to ply vessel. In that state of the matter High Court Division, in over view, was quite correct in observing that plaintiff failed to prove taht the accident took place at 5.30 A.M. on 13.5.1986 due to negligence of the Master of M.V. Shainpukur-1.
11. It has been submitted by the learned Counsel for the appellants that the ship was on the right side of the river and that as the defendants caused damage on the left side of the vessel M.V. Tapash, the defendant No. Ts vessel M.V Shainpukur-1 was at fault. In the background of the evidence on record the contention appears to be of no merit since the fact at whose fault the collision took place was not established by the plaintiffs. In the background of the evidence on record, particularly Master of the ship who was more than 75 years old having not been examined in the case without offering any explanation and that no certificate of competency of the Master of the vessel M.V. Tapash having not being placed on record the assertion of the plaintiffs that collision took place because of the r negligence of the Master of M.V. Shainpukur-1, in our view, remains unestablished. The presumption as regard non-examination of the Master of the vessel M.V. Tapash very much goes against the plaintiffs to the effect that the Master of vessel was not examined as in that case the Court would likely to have form an adverse opinion as to competency of the Master of the vessel to ply vessel at that stage of age.
12. The claim of the plaintiffs that the vessel M.V. Tapash was on the right side of the river was also not established. So the allegation of M.V. Shainpukur- 1’s negligence in playing the vessel was not established by the evidence of the kind whereupon placing reliance the Court would have been able to arrive at the finding that collision took place because of the negligence of the defendant No.l’S vessel M.V. Shainpukur-1. The other contention of the learned Counsel for the appellant that High W Court Division while dismissing the case of | the plaintiffs took into consideration non-relevant materials i.e. absence of lisence of the vessel for carrying Kerosene, absence of pilot on the vessel and the age of the Master of the vessel and properly did not consider the inquiry report of the Department of Shipping (Ext-A) made upon holding inquiry in connection with the accident in question. The age of the Master of the vessel was a material question since law relating to competency of a Master to ply a vessel after attaining age of 57 years is a compulsory one. The age of the Master was more than 75 years and the material fact at that stage of the age how far the Master was competent, or in other words had the Competency, to ply the vessel at night or even at the early hours of the day i.e. time at which collision said to have taken place, although not established by the evidence of competent witness.
13. In Ext. A the Inquiry Officer had blamed the Masters of both the vessels and that taking into consideration the entire state of the matter recommended that Master of vessel M.V. Tapash being too old “he must not be allowed to serve on ships any more” and also recommended for the prosecution o both the vessel. So age of the Master of the vessel M.V. Tapash has rightly taken into consideration by the High Court Division while making decision as to because of whose negligence the collision took place. The other contention of the learned Counsel for the appellants that even if there had been contributing negligence on the part of the vessel M.V. Tapash in causing^ the collision and the said fact as only would go to mitigation of amount damages but in no way defendants could be absolved, as High Court Division had done altogether from their liabilities and as such said Division was in error. No evidence has been brought on record to show that there had been negligence from the side of the defendants in plying their vessel and that also as regard the matter of collision there is absence of evidence establishing that M.V. Tapash was not alone negligent but both the vessels i.e. M.V. Tapash and M.V. Shainpukur-1 were equally negligent. The contention of the appellants that fact of collision being an admitted matter the Respondents ought not have been absolved from their liabilities is o no merit since no evidence ha been brought on record fixing liability of the Respondents in causing collision negligently.
14. It has been submitted by the learned Advocate for the Respondent Nos. 1 and 2 defendant Nos.l and 6) that about the time of accident evidence of P.Ws. 1,2-4 and 5 is hearsay evidence and the evidence of P.W.6, an employee of the plaintiff No. 1 is the evidence of an interested witness and consequently plaintiffs having had failed to establish by the evidence of reliable witness to establish time of collision, the High Court Division placing reliance on the playing schedule (Ext.2) of M.V. Shainpukur-1 was quite correct in holding that plaintiffs failed to establish the time of collision, that because of the materials in the report (Ext. A)of the Department of Shipping about the age of the Master of M.V. Tapash and there having recommendation for immediate removal and that because of the absence of papers relating to the movement of the vessel the High Court Division was not in error in holding that collision did not take plaoe at the time as claimed by the plaintiffs and that because of the negligence of the defendants, that withholding of the Master of the vessel without offering any explanation was strong presumption that the Master of the vessel M.V. Tapash had no competency to ply the vessel, that because of the observation in the report (Ext. A) taht M.V. Shainpukur-1 left her last station Munshiganj at about 3 hours on May 13,1986 the High Court Division did not commit any error in holding that the plaintiffs assertion of occurring the collision at 5.30 A.M was not correct. It was also contended by the learned Advocate for the Respondents that the un denied position was that on May 13,1986 M.V. Tapash had no lisence to carry petroleum products.
15. The main point for determination in the appeal was at what point of time of May 13, 1986 the collision took place. The plaintiffs asserted tht collision took place. The plaintiffs asserted that collision took place at 5.30 A.M. on 13.05.1986. On consideration
of the evidence on record we are of the view that plaintiffs by credible evidence have failed to establish tht collision took place at 5.30 A.M. Since the evidence brought on record by the plaintiffs is not of the kind where from it can definitely be arrived at the finding that because of the neglignece of M.V. Shainpukur-1 accident took place, in that state of the matter we are of the view High Court Division was quite correct in holding that plaintiffs failed to establish that the accident took place because of the negligence of the vessel M.V. Shainpukur-1 The Plaintiffs tried to make out a case of contributing negligence but as discussed by us hereinbefore no such case has been established by the plaintiffs nor can any decision be made in the background of the materials brought on record by the plaintiffs in that regard. In that view of the matter it can not be said tht the High Court Division was not correct in dismissing the suit. In the background of the discussions made hereinabove we find no merit in the appeal. Accordingly the appeal is dismissed. . There is no order as to costs.
Source : III ADC, (2006) 303