JUDGMENT
V.A. Naik, J.
1. Being aggrieved by the order dated 05/7/1990 passed by the Railway Claims Tribunal, Nagpur Bench in Claim Cases No. 514/AT/RCT/NGP/90 allowing the claim of the appellant-plaintiff only to the extent of Rs. 11,697.57ps. Instead of Rs. 32,922.60ps., the appellant has preferred the instant first appeal. The brief facts of the case giving rise to the controversy in the instant first appeal are summarised as under;
2. The appellant who is businessman had been to Calcutta to purchase ready made clothes for his business at Nagpur. That after purchasing the ready made clothes from various dealers at Calcutta, he packed those clothes in seven bags and booked the said seven bags in 60-Up train i.e. Geetanjali Express vide luggage ticket No. 366017 dated 07/3/1988. That, being the owner of the luggage in question, the appellant was entitled to demand the delivery of seven bags from the destination station at Nagpur. He, therefore, presented the luggage ticket dated 07/3/1988 at the parcel office of Nagpur railway station on 08/3/1988 and 09/3/1988 and demanded delivery of seven bags of ready-made garments. The railway authority, however delivered only six bags of ready-made garments to the appellant and one of the bags was not delivered. It was the case of the appellant before the Tribunal that the appellant suffered loss of Rs. 32,922/- as a result of loss of the 7th bag in the transit. The appellant, claimed that the value of the ready-made garments in the undelivered bag was Rs. 29,566/-. The appellant further claimed an amount of Rs 2956.60ps. towards loss of profit, Rs. 300/- towards miscellaneous and freight charges and Rs. 100/- for notice charges.
3. The respondent-defendant filed written statement and disputed the fact of booking of seven bags of luggage as also their liability for the alleged shortage and non-delivery of one of the bags. It was also the case of railway before the Claims Tribunal that the clothes which were allegedly lost were costly clothes of terrycot and terelene coming under the category of ‘excepted articles’ under Schedule II of Indian Railways Act and the appellant was not entitled to claim compensation for loss of the undelivered bag.
4. The appellant tendered his evidence on affidavit to prove his claim. The appellant was, however not able to produce luggage ticket No. 366017 dated 07/3/1988 on the basis of which he lodged the claim. Though the appellant had failed to produce the luggage ticket, the tribunal directed the railway to produce the relevant luggage ticket and on production of the same, it was seen that seven bags of luggage had been booked in the brake van and the total weight of seven bags was 5.45 quintals and that Rs. 550/- had been charged for this luggage ticket. The luggage ticket further shows that it was issued in the name of “PKJ” and it was also mentioned in the affidavit filed by the appellant that the appellant was carrying on the business of ready-made garments in the code name “PKJ”. After considering the evidence produced by the parties on record, the Tribunal came to a conclusion that 7th bag of luggage was lost in transit and it could not be delivered to the appellant. The Tribunal further held that the non delivery of one of the bags was due to the negligence, if not misconduct on the part of the railway staff. Having held that the respondent-railway was negligent in the short supply of non delivery of 7th bag, the Tribunal assessed the damage payable to the appellant at Rs. 11,697.57 solely on the ground that the appellant had produced the vouchers showing that the total purchase made by him at Calcutta amounted to Rs. 81,883/ – and since, only one of the bags is lost in transit, 1/7″1 amount of Rs. 81,883/- came to Rs. 11,697.57ps. That, though the appellant produced the bills from the whole sellers at Calcutta to show that the total value of the articles covered by the said bills in the 7th bag of luggage was Rs. 29,566/- and also produced the extracts of the ledger/ cash book to- substantiate his case that the eleventh bag contained goods worth Rs. 25,566/-,the Tribunal applied Section 103 of the Railways Act, 1989 and determined the damages on the basis of the weight of the consignment/luggage on the ground that the appellant-owner did not get the loss or damage of the goods identified and assessed by the railway staff. The Tribunal, therefore, divided the total value of the goods purchased, by seven, to arrive at the damage or loss caused to the appellant since the ready-made garments worth Rs. 81,883/- were packed in seven bags of luggage and only one of the seven bags was lost in transit. The Tribunal further denied the claim of the appellant to the extent of Rs. 2,956/- for loss of profit and granted the claim to the extent of Rs. 300/- towards freight and miscellaneous,charges.
5. Shri. Johrapurkar, learned Counsel appearing on behalf of the appellant submits that the Tribunal committed gross error in applying the provisions of Section 103 of the Railways Act for determining the loss or damage caused to the appellant. Relying on the definition of the words “consignment” and “luggage” in the definition clause under the Railways Act, 1989, it is pointed out by Shri Johrapurkar that the Tribunal could not have applied Section 103 of the Act and in fact, should have applied Section 100 of the Act to the facts of the instant case as what was entrusted to the railway was not a “consignment” within the meaning of Section 2(9) of the Act but it was, in fact, “luggage” within the meaning of Section 2(23) of the Railways Act, 1989. It was further canvassed on behalf of the appellant that the appellant was himself a passenger in Geetanjali Express train and he had entrusted seven bags of ready-made garments to the railway administration for carriage. He further canvassed that the goods which were entrusted to the railway administration clearly fell within the definition of the word “luggage” as defined in Section 2(23) of the Act. He. therefore pointed out that the tribunal was not justified in determining the loss of damage caused to the appellant on the basis of the weight of the luggage. Learned Counsel for the appellant relied on the unreported judgment of this Court in First Appeal No. 450 of 2003 decided on 11/12/2003 to fortify his submissions.
6. Perused the impugned order passed by the Tribunal as well as the evidence adduced by the parties. The sole reason for disallowing the claim of the appellant to the extent of Rs. 29,566/- was that the appellant failed in his responsibility to get the loss and damage to the goods identified and assessed by the railway staff and to have a proper shortage / damage certificate issued by the railway staff.
7. Bare perusal of Sections 100 and 103 of the Railways Act, 1989 reveal that Section 100 deals with the responsibility of the railway for the loss, destruction, damage, deterioration, or non delivery of any luggage, if the loss, destruction, deterioration or damage is caused due to the negligence or misconduct on the part of the railway servants. Section 103 of the Act deals with the liability of the railways in respect of loss, destruction, damage, deterioration or non delivery of a consignment. In the instant case, since the appellant was also travelling in Geetanjali Express and had only entrusted the goods or seven bags of ready made garments to the railway administration for carriage, the goods fell within the definition of the word “luggage” under Section 2(23) of the Act. A consignment with the definition of the Act need not be booked by a passenger, however “luggage” has to be entrusted to the railway administration for carriage by a passenger.
8. The Tribunal had clearly answered the issues in favour of the appellant to hold that the railway staff was negligent in causing the loss of 7th bag which was not delivered to the appellant at the destination station. Having once held so, the railway administration was clearly responsible for the loss caused to the appellant due to the negligence on the part of the railway servants. Hence, since there was loss of the “luggage” in the instant case, Section 103 of the Act was not applicable and Section 100 was applicable. The appellant had produced ample evidence on record to show that the value of the articles covered by the loss of luggage or 7th bag was Rs. 29,566/-. He also further substantiated his case for loss to the tune of Rs. 29.566/- by producing the extracts of the ledger book/cash book along with cash memo or bills pertaining to the purchases made at Calcutta. The Tribunal was, therefore, not justified in determining the loss at Rs. 11,697.57 by dividing the amount towards the total purchaser at Rs. 81,883/-by seven, on the ground that there were seven bags of luggage and only one of the bags of luggage was lost. Denial of the claim to the extent of Rs. 29,566/- on the ground that the appellant-plaintiff or his representative had not taken any pains to ascertain the weight of the lost bag and to get the damages assessed from the railway was clearly unjust and Illegal. The unreportedjudgment of this Court in First Appeal No. 450 of 2003 decided on 11-12-2003 also squarely applies to the facts of the present case.
9. For the reasons aforesaid, the order dated 5-7-1990 passed by the Railway Claims Tribunal is modified and it is held that the appellant is entitled to Rupees 29,566/- towards the loss or damage caused to the appellant due to the loss of seventh bag of luggage in transit. The appellant is, therefore, entitled to an amount of Rs. 17.869/- if a decree to the extent of Rs. 11,697.57ps. towards the loss or damage caused to the seventh bag of luggage is already satisfied. The appellant is, however, not entitled to get an amount of Rs. 2,956/-towards the loss of profit and the interest on the amount of Rs. 29,566/- as the appellant had failed to produce the material documents on record namely the luggage ticket and it was on the direction of the Tribunal that respondent-railways had produced the luggage ticket.
10. The appeal is, therefore, partly allowed. However, in the facts of the case, there would be no orders as to the costs.