IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 13/02/2004 Coram The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S.R. SINGHARAVELU C.M.A. No. 731 of 1996 M/s. Kedarnath Brijlal, Madurai. .. Appellant/Applicant. -Vs- The Union of India, owning Southern Railway, represented by its General Manager, Madras. .. Respondent/Respondent. Appeal against the judgement and decree dated 31-1-19 95 and made in O.A.I/1091/92 on the file of Railway Claims Tribunal, Madras Bench. Mr. T. Rajamohan:-For Appellant. Mr. V.G. Sureshkumar:- For Respondent. :JUDGEMENT
(Judgement of the Court was made by P. Sathasivam, J.,)
Applicant in O.A.I/1091/92 on the file of Railway Claims Tribunal, Madras
Bench is the appellant in the above appeal. For convenience, we shall refer
the case of the parties as arrayed before the Claims Tribunal. The applicant
purchased and received a consignment of 140 bags of Gram from Baran to Madurai
through the respondentSouthern Railway under Invoice No. 179 dated 5-2-92, RR
No. 520549. According to him, at the time of taking delivery of the
consignment at the destination station i.e., Madurai, all the bags were
damaged by insects and weevil action, contents found with holes and powder
pouring out from the holes, black insects flying. The Railway officials gave
open delivery of all the bags and assessed the damages at 50 per cent i.e.,
13,860 kgs and issued a joint survey report on 30-5-92. The value of the
damage is Rs.49,342/-. According to the applicant, the damage to the
consignment was only due to the gross negligence and misconduct on the part of
the Railway administration and employees and also due to the defective wagon
and delay. Further, the consignment was booked under railway risk rate; hence
the respondent is bound to recoup the loss sustained by the applicant. The
applicant sent a claim notice as required under Section 106 on 13-6-92 to the
Chief Commercial Superintendent, Tiruchirapalli claiming damage. The
respondents sent a reply repudiating their claim on 30-6-92. Therefore, the
applicant filed O.A.I/1091/92 for recovery of a sum of Rs.49,342/- with future
interest and cost before the Railway Claims Tribunal. The said application
was heard along with another O.A.I/1090/92 by the Tribunal. The Tribunal has
found that the applicant has got title to the consignment. It also found that
weevil action is due to inherent defect/vice of the goods at the time of
loading. Finally, the Claims Tribunal concluded that the applicant is
entitled for 60 per cent of the damage and directed the respondent/Railways to
pay Rs.25,904/- with interest at 12 per cent per annum from the date of
application till realisation with proportionate costs. Contending that having
found that the Railways have not used reasonable foresight and care, erred in
attributing negligence on the part of the applicant, has filed the present
appeal with reference to disallowed claim.
2. Heard Mr. T. Rajamohan, learned counsel for the appellant and Mr. V.G.
Sureshkumar for the respondent.
3. The point for consideration in this appeal is, whether the applicant is
entitled to the entire amount of Rs.49,342/- or to the extent of 60 per cent,
as assessed by the Railway Claims Tribunal?
4. There is no dispute regarding title to the consignment and eligibility to
file claim petition before the Railway Claims Tribunal. Now let us consider,
whether the bags that were consigned, were damaged at the time of booking
itself. In this regard, it is relevant to refer Section 98:-
“Section 98. Goods in defective condition or defectively packed.- (1) xx xx
xx
(2) When any goods entrusted to a railway administration for carriage are
found on arrival at the destination station to have been damaged or to have
suffered deterioration, leakage or wastage, the railway administration shall
not be responsible for the damage, deterioration, leakage or wastage of the
goods on proof by railway administration,-
(a) that the goods were at the time of entrustment to the railway
administration, in a defective condition, or were at that time either
defectively packed or not packed in such manner as may be prescribed and as a
result of which were liable to damage, deterioration, leakage or wastage; and
(b) that such defective condition or defective or improper packing was not
brought to the notice of the railway administration or any of its servants at
the time of entrustment of the goods to the railway administration for
carriage by railway:
Provided that the railway administration shall be responsible for any such
damage, deterioration, leakage or wastage if negligence or misconduct on the
part of the railway administration or of any of its servants is proved.”
The above provision makes it clear that the defective nature of the goods, if
any, found at the time of booking shall be recorded by the consignor or his
agent in the forwarding note and in the absence of such remarks either in the
forwarding note or in the railway receipt, the presumption shall be that the
goods did not suffer from any inherent defect at the time of booking. In the
case on hand, the forwarding note has not been produced by the respondent and
even the railway receipt (RR) i.e., Ex.B-1 did not contain any such adverse
remarks. It is also relevant to mention that the liability of the respondent/
railways under Section 93 of the Railways Act is that a insurer and the
respondent shall not be relieved of its responsibility for loss and damage
unless the railway administration proves that it has used reasonable foresight
and care in carriage of goods.
5. The applicant has also established that there had been a inordinate delay
in transit of the consignment as against usual transit period of 15 days. It
is pointed out that as against 15 days of normal transit, the transit has
taken 105 days and hence the railways has not exercised reasonable care. As
rightly argued by the learned counsel for the applicant, the railways have not
lead any data to determine what will be the normal transit time against this
theoretical transit time that is one day for every 250 k.m. of lead, nor they
have produced any evidence to justify the transit. Accordingly, the Claims
Tribunal has rightly found that the railways did not exercise reasonable
foresight and care in the movement of the consignment in question.
6. The Claims Tribunal in spite of holding that there was inordinate delay
and railways has not used reasonable foresight and care in carriage of goods,
arrived at a conclusion that the weevil action is due to inherent defect/vice
of the goods at the time of loading. Here again, there is a factual
conclusion by the Tribunal that there is no evidence to indicate that the
contents have not been damaged due to intrusion of water, etc., enroute in
transit. We have already found that the forwarding note has not been produced
by the respondent and the railway receipt-Ex.B-1 did not contain any adverse
remark regarding the defective nature of the goods at the time of booking. In
the light of the materials placed, finding by the Claims Tribunal, we are
unable to sustain its conclusion that the damage was mainly due to inherent
defect/vide of the goods at the time of loading. Having found that the
railways shall not be relieved of its responsibility of loss and damage, no
information regarding condition of the goods consigned in the forwarding note,
inordinate delay in transit, we hold that the applicant is entitled to the
value of the consignment as claimed. In other words, the entire liability for
the damages should have been fastened on the railways. We have already held
that Section 98 (1) (a) of the Act requires that the facts have to be recorded
in the forwarding note that has not been done in this case. Transhipment
records have also not been produced. Section 93 provides that even when there
is an act or omission or negligence of the consignor or the consignee or the
endorsee or the agent or servant of the consignor or the consignee or the
endorsee and where there is natural deterioration or wastage in bulk or weight
due to inherent defect, quality or vide of the goods, the railway
administration shall not be relieved of its responsibility for the loss,
destruction, damage, deterioration, or non-delivery unless the railway
administration further proves that it has used reasonable foresight and care
in the carriage of the goods. The very finding of the Tribunal is that the
railway administration has not proved that it had used reasonable foresight
and care in carriage of the goods under Section 98 (1) (a) of the Act when any
goods are entrusted to the railway administration for carriage, if the goods
are in a defective condition as a consequence of which they are liable to
damage, deterioration, leakage or wastage or the goods are either defectively
packed or not packed in such a manner as may be prescribed and as a result of
such defective or improper packing are liable to damage, deterioration,
leakage or wastage, the Railway Administration had to ensure that the fact of
such condition or defective or improper packing had been recorded by the
consignor or his agent in the forwarding note to escape liability. As said
earlier, admittedly, the forwarding note has not been produced by the
railways. The railway receipt does not contain any such adverse remarks. The
defect in the goods have not been noted in the railway receipt. There had
been inordinate delay in transporting the goods. We are satisfied that the
Claims Tribunal had assumed without any basis that there is inherent defect in
the goods. We have already held that the provisions of the Act requires facts
to be recorded in the forwarding note and the same has not been done.
7. Under these circumstances, we hold that the Railway Claims Tribunal was in
error in apportioning the liability. It should have fastened the entire
liability on the respondent railways. Similar view has been expressed by
Sivasubramaniam, J., in C.M.A.No. 578 of 1992 on 20-9-1999; Murugesan, J., in
C.M.A.No. 1275 of 1992 on 21-9-2000; and K. Sampath, J.,in (2001) I MLJ 462.
8. In the light of what is stated above, the order dated 31-1-95 passed by
the Railway Claims Tribunal, Madras Bench in O.A.I/1091/92 is set aside and
the respondent/Southern Railway is directed to pay the entire value of
Rs.43,173.90 rounded off to Rs.43,174/- with interest at 12 per cent per annum
from the date of application till the date of payment. The appeal is allowed.
No costs.
R.B.
Index:- Yes
Internet:- Yes
To:-
1. The Railway Claims Tribunal, Madras Bench with records.
2. The Record Keeper, V.R Section, High Court, Madras.