JUDGMENT
L. Narasimha Reddy, J.
1. This appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is filed by the South Central Railway, assailing the order dated 10-8-1998, passed by the Railway Claims Tribunal, Secunderabad Bench, in T.A. No. 397 of 1990.
2. The respondent, M/s. Indian Oil Corporation, made a claim against the appellant stating that it loaded 24,550 liters of H.S.D. oil in wagon No. WR 42186, under a railway receipt, dated 08-06-1986, to be delivered at Gooty in Anantapur District, and that the entire wagon was found empty at the place of destination. It was pleaded that the oil leaked in the transit, on account of loosening of nuts and bolts at the bottom of the valve, and that it is entitled to be compensated for loss of the goods. The appellant filed written statement denying its liability. It was pleaded that the wagon, referred to above, along with other wagons, was supplied to the respondent and all of them were filled in the siding of the respondent. The receipt is said to have been issued in “said to contain” category, and it cannot be held liable for the loss of goods. It is also stated that filling of the oil was the exclusive responsibility of the respondent and the appellant has no role to play in the matter, except to endorse the quantity entered by the respondent. Reliance was placed on the provisions of the Indian Railways Act, 1890 (for short ‘the Act’), and the Goods Tariff Rules.
3. The matter was heard by a Bench, comprising of judicial and technical members of the Tribunal. While the technical member rejected the claim, by taking the view that it was the responsibility of the consignor to cause necessary inspection and take all precautions to ensure that the goods are properly loaded, the judicial member held that the railways is under obligation to see that the loaded goods are delivered at the destination without any loss and allowed the claim. In view of this difference of opinion, the matter was referred to a third member. The third member has undertaken extensive discussion and agreed with the judicial member, and thereby held that the appellant herein liable to pay the amount.
4. Sri B.H.R. Chowdary, learned Counsel for the appellant submits that, admittedly, the wagon was loaded in the siding of the respondent and was scheduled to be unloaded at their own siding at Gooty, and thereby Section 94 of the Act gets attracted. Placing reliance upon Rule 15 of the Tariff Rules, learned Standing Counsel submits that where the goods are loaded by the consignors themselves, the issuance of receipt by the railways, does not amount to acceptance of the quantity, and the burden is always upon the consignor to prove that the goods were filled properly and the quantity mentioned by them is correct. He also submits that the third member of the Tribunal has taken into account Section 73 of the Act, which applies to goods, which are loaded in the siding of the railways and under their supervision, and not the cases, in which the loading is undertaken by the consignor in their own sidings. He also placed reliance upon Section 102 of the Act.
5. Though notice is served on the respondent, it has not chosen to enter appearance.
6. The respondent made a claim before the Tribunal alleging that it loaded 24,550 liters of H.S.D. oil in a wagon at Tondiarpet, to be delivered at their own establishment at Gooty in Anantapur District. It is not in dispute that the loading took place in the siding of the respondent and that the oil was loaded into the wagon by themselves and not under the supervision of an employee of the railways. The order of the Tribunal is to the effect that, being the carrier of the animals and goods, the appellant is liable to make good, the loss of the consignment booked, with it. Heavy reliance is placed on Section 73 of the Act. A finding was also recorded to the effect that the shortage or loss of the goods, in the present case, is covered by Section 73 of the Act.
7. If the goods in question are covered by Section 73 of the Act, no exception can be taken to the order passed by the Tribunal. Section 73 deals with general responsibility of the railway administration as a carrier of animals and goods. The railways are exempted from the liability in such cases, on account of causes which are result of acts of God, acts of War etc. Since no such cause was pleaded, the appellant was held liable.
8. As observed in the preceding paragraphs, the oil was loaded by the respondent in their own siding at Tondiarpet and it was to be unloaded at their siding at Gooty. Section 94 of the Act prescribes different parameters, as to liability of the railways, where the goods are loaded/unloaded at the siding of the consignors/consignees. It reads as under:
“94. GOODS TO BE LOADED OR DELIVERED AT A SIDING NOT BELONGING TO A RAILWAY ADMINISTRATION:
1. Where goods are required to be loaded at a siding not belonging to a railway administration for carriage by railway, the railway administration shall not be responsible for any loss, destruction, damage or deterioration of such goods from whatever cause arising, until the wagon containing the goods has been placed at the specified point of interchange of wagons between the siding and the railway administration and a railway servant authorized in this behalf has been informed in writing accordingly by the owner of the siding.
2. Where any consignment is required to be delivered by a railway administration at a siding not belonging to a railway administration, the railway administration shall not be responsible for any loss, destruction, damage or deterioration or non-delivery of such consignment from whatever cause arising after the wagon containing the consignment has been placed at the specified point of interchange of wagons between the railway and the siding and the owner of the siding has been informed in writing accordingly by a railway servant authorized in this behalf”.
9. A reading of the same discloses that once the formalities, mentioned therein, as to the placing of wagon at the specified point of interchange are complied with, the responsibility for loss, destruction, damage or deterioration of the goods, rests with the consignor and not with the railways. The respondent did not plead that such an exercise has been undertaken in this case. The appellant specifically pleaded that though the wagon had the facility of loading from the top, the respondent has chosen to load it through the bottom valve, and closing and sealing of the valves was the exclusive responsibility of the respondent. The report of the inspection of the tanker caused at Arkonam, discloses that the nuts and bolts of the bottom valve were found missing. Therefore, the respondent owed an explanation to the satisfaction of the Tribunal that it has taken all precautions at the time of loading and that the loss occurred during the transit. No such material has been placed by the respondent before the Tribunal.
10. Section 102 of the Act becomes relevant here. It mandates that where it is proved by the railway administration that the loss, destruction, damage or deterioration is caused on account of improper loading and unloading by the consignor or consignee, the railways shall not be held responsible for any resultant loss. The written statement filed by the appellant has elaborately dealt with this aspect and specifically pointed out that the loading was improperly done.
11. Rule 15 of the Goods Tariff Rules is to the effect that the weight, description and classification of goods in the railway receipts and the forwarding note, are provisional and subject to verification. Wherever the goods are loaded by the consignor, the receipts are issued under a category, known as ‘said to contain’. The very description discloses that the transporter does not vouch for the correctness. When the consignor chooses to load the goods by himself, without the supervision of the railways, that too at their own siding, the relevant provision not only require them to be cautious about the mode of loading and accuracy of the quantity, but also relives the railways of any loss or damage that may be caused to the goods, subject to the exceptions, provided therefor.
12. The order discloses that the Tribunal did not take these aspects into account. No reference was made to Sections 94, 102 of the Act or the relevant Tariff Rules. It proceeded as though the goods were loaded and transported in the ordinary parlance. When they are covered by special procedure, the legal regime meant therefor, ought to have been applied.
13. Therefore, the Civil Miscellaneous Appeal is allowed, and the order under appeal is set aside. There shall be no order as to costs.