{"id":44236,"date":"2006-05-17T00:00:00","date_gmt":"2006-05-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-shah-jayantilal-vs-the-union-of-india-on-17-may-2006"},"modified":"2014-07-27T16:43:20","modified_gmt":"2014-07-27T11:13:20","slug":"ms-shah-jayantilal-vs-the-union-of-india-on-17-may-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-shah-jayantilal-vs-the-union-of-india-on-17-may-2006","title":{"rendered":"M\/S. Shah Jayantilal vs The Union Of India on 17 May, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
M\/S. Shah Jayantilal vs The Union Of India on 17 May, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n In the High Court of Judicature at Madras\n\nDated: 17\/05\/2006 \n\nCoram \n\nThe Hon'ble Miss Justice K. SUGUNA   \n\nCMA. No. 416 of 1999 \n\nM\/s. Shah Jayantilal\nJivraj & Co.,\nNo.85, Mint Street,\nChennai 79.                                     ...  Appellant\n\n\n-Vs-\n\nThe Union of India\nowning Southern Railway \nrep. by its General Manager,\nChennai  3.                                     ..  Respondent\n\n        Civil Miscellaneous Appeal preferred against the judgment  and  decree\ndated  28.12.1998  passed  by  the  Railway  Claims Tribunal, Chennai Bench in\nO.A.I\/1078\/90.\n\n!For appellant :  Mr.T.Rajamohan\n\n^For respondent :  Mr.V.G.Suresh Kumar  \n\n:J U D G M E N T \n<\/pre>\n
        This Civil Miscellaneous Appeal has been filed challenging  the  order
\ndated 28.12.1998 passed  in  O.A.    No:    I\/1078  of 1990 on the file of the
\nRailway Claims Tribunal, Chennai Bench.  The facts of this appeal are  that  a
\nconsignment  of  171 bundles were booked from Shilong Out Agencies to the Salt
\nCataurs under R.R.  No:  697667 dated 20.06.1988.  After a delay of  42  days,
\nthe said  consignment  has reached the destination point.  When the goods were
\nunloaded, it was found that 70 bundles are being received in a good  condition
\nand 86  bundles  were  damaged  by  water  and  15  bundles were missing.  The
\nappellant has received the 70 bundles.  With regard to the 86  bundles,  which
\nhas  been  damaged  by  water and found to be unfit for any use, the appellant
\nsought for open delivery for assessment of the damage.  Hence,  on  02.08.1988
\nafter  verification  and  finding that 70 bundles were in sound condition, the
\nclaimant took delivery of the 70 bundles.  Since the  other  86  bundles  were
\ncompletely  damaged and unfit for any use, the appellant did not take delivery
\nof the same and sought for assessment of damages.  Since  the  respondent  has
\nnot  assessed  the  damage properly, the appellant refused to take delivery of
\nthe same.  Subsequently, the respondent had conducted an auction  with  regard
\nto these  86  bundles  on 05.12 .1988.  In the auction for the 86 bundles, the
\nrespondent was able to fetch a sum of Rs.4,748\/-.   Since  the  appellant  has
\nsuffered  a  loss  to  the  tune  of Rs.1,12,817\/-, with regard to the damaged
\nbundles and loss of 15 bundles, he had  filed  a  claim  petition  before  the
\nRailway Claims Tribunal, Chennai, claiming a sum of R s.1,12,817\/-.\n<\/p>\n
        2.  The claim  petition  was taken up on file in O.A.  No:  I\/1078-90.
\nOriginally, the matter was heard by the Judicial Member as well as the  Member
\n(Technical)  and  an  order has been passed on 01.05.1998 whereby the Judicial
\nMember has given a judgment that the  appellant  is  entitled  for  a  sum  of
\nRs.1,08,272\/- as compensation whereas the Member (Technical) has differed from
\nthe  view of the Judicial Member on certain issues and gave a finding that the
\nappellant is not entitled for any compensation since he has  refused  to  take
\ndelivery of  the  86  bundles.    Hence the matter was referred to the Hon’ble
\nChairman  of  the  Railway  Claims  Tribunal,  Delhi,  who  appointed   Member
\n(Technical)  of  the  Secunderabad Bench, as the third member for deciding the
\nissue.  The  third  member,  after  providing  an  opportunity  for  both  the
\nappellant  as  well  as  the respondent, passed an order on 14.12.1998 totally
\nnegativing relief to the appellant.  Challenging the same, the above C.M.   A.
\nhas been filed.\n<\/p>\n
        3.    Learned  counsel  for  the  appellant  has  made  the  following
\nsubmissions :\n<\/p>\n
        1.      As per the learned counsel normally when there is a difference
\nof opinion between the Judicial Member and the Member (Technical), the  matter
\nwould be referred to a Judicial Member and not a Member ( Technical).\n<\/p>\n
        2.   Because  of the negligence in not following the safeguard methods
\nby the respondent railway, 86 bundles were damaged due to which they cannot be
\nput to any use at all.  Besides, 15 bundles were missing.  Since this  is  due
\nto  the  carelessness and negligence on the part of the railway, it has to pay
\ndamages as claimed by the claimant.  That apart, the learned counsel  for  the
\nappellan t has argued that auction has taken place under Sections 54 and 55 of
\nthe  old  Act wherein it was clearly stated that before conducting an auction,
\nthe appellant should have been provided with a notice.  But whereas no  notice
\nhas  been  issued  as  contemplated under Sections 54 and 55 of the Act and as
\nsuch, the order passed by the Tribunal is totally erroneous and the  same  has
\nto be interfered with.\n<\/p>\n
        4.   On  the other hand, learned counsel for the respondent has argued
\nthat in the event of difference of views between the Judicial Member  and  the
\nMember  (Technical),  as  per  the  provisions  of  the Act, the matter can be
\nreferred to either a Judicial Member or a  Member  (  Technical).    He  would
\ncontend  that  as  per  Section  81  of  the  Railways  Act  19  89, where the
\nconsignment arrives in a damaged condition  or  shows  signs  of  having  been
\ntampered  with  and  the  consignee or the endorsee demands open delivery, the
\nrailway administration shall give open delivery  in  such  manner  as  may  be
\nprescribed.   But, however, when the consignee refuses to take delivery of the
\nconsignment, the question of paying for the damages does  not  arise  at  all.
\nThat apart, the counsel for the respondent has argued saying that even in case
\nif  the  consignee  is having any grievance with regard to the damages arrived
\nat, after taking delivery, he can have re-assessment of  the  damages  through
\nthe private agencies like Chamber of Commerce and other agencies.  But in this
\ncase,  totally  the  appellant  has  refused  to  take  delivery of the goods.
\nConsequently, he lost his right to ask for any damages.  With  regard  to  the
\nprocedure  contemplated  under Sections 84 and 85 of the Railways Act, 1989 is
\nconcerned, the learned counsel for the respondent would contend that  in  fact
\nfrom  Ex.A.7-letter from the respondent, it is clearly established that notice
\nhas been given and the appellant consignee has refused to take delivery of the
\ngoods.  Hence, the procedure contemplated under the Act is not  only  followed
\nbut  also  when  the  consignee  refused  to  take  delivery of the goods, the
\nrespondent is left with no other option except to dispose of the goods through
\nauction sale.  Even assuming without admitting that the procedure contemplated
\nunder Sections 84 and 85 of the Act has not been followed,  at  the  most  the
\nappellant  can  be  compensated  with  the  value  of the money which has been
\nreceived in the auction sale namely Rs.4,748 \/-.  In this connection,  learned
\ncounsel for  the appellant has relied on the judgment reported in A.I.R.  1973
\nAllahabad 303 (Niranjan Lal vs.  Union of India) and A.I.R.    1983  Rajasthan
\n200 (Union of  India  vs.    Mohan  Raj).   Hence, the<\/a> learned counsel for the
\nrespondent has argued that  the  award  passed  by  the  Tribunal  has  to  be
\nconfirmed in all respects.\n<\/p>\n
        5.  I  have considered the submissions made on both sides.  Before the
\nTribunal, originally when the matter has been referred, the  following  issues
\nwere framed :\n<\/p>\n
        “1.   Whether  the  consignor  entrusted  171  bundles to railways for
\ncarriage at the forwarding station ?\n<\/p>\n
        2.    Whether   there   was  short  delivery  of  15  bundles  at  the
\ndestination?\n<\/p>\n
        3.  Whether packing conditions had  not  been  complied  with  by  the
\nconsignor  and  whether  it  resulted in the damage to 86 bundles found at the
\ndestination ?\n<\/p>\n
        4.  Whether the railways used reasonable foresight  and  care  in  the
\ncarriage of the goods ?\n<\/p>\n
        5.  Whether the petitioner refused to take delivery of the damaged 8 6
\nbundles ?\n<\/p>\n
        6.   Whether  there were valid notices under Sections 55 and 56 of the
\nRailways Act and whether the sale held by the railways is valid?\n<\/p>\n
        7.   Whether the petitioner is entitled to any compensation and if so,
\nhow much ?\n<\/p>\n
        8.  What relief are the parties entitled to ?”\n<\/p>\n
With regard to issue Nos:  1 to 5 both the  Judicial  Member  and  the  Member
\n(Technical) have taken  a  same  view.    But  with  regard to Issue No:  6 is
\nconcerned, the Judicial Member has given a  finding  that  as  required  under
\nSection  55  of the Railways Act due notice was not given to the appellant and
\nhence, the sale of goods in the auction conduced by the respondent railways is
\ninvalid one.  Besides, he has given a finding that  the  auction  sale  of  86
\nbundles of  broom  which was held on 05.12.1988 is bad in law.  On this issue,
\nviz.  issue No:  6, the Member  (Technical)  has  given  a  finding  that  the
\nappellant was not justified in refusing to take delivery of 86 bundles.\n<\/p>\n
        6.  As far as issue No:  7 is concerned, the Judicial Member passed an
\norder  directing  payment of Rs.1,08,272\/- as compensation for non delivery of
\n101 bundles of broom (i.e.  86 bundles damaged and 15 bundles  missing).    On
\nthis  issue, the Member (Technical) has concluded that as the claimant had not
\ntaken delivery, he is not entitled for any compensation.  Since  the  Judicial
\nMember  and  the Member (Technical) took a different view on certain issues as
\nstated supra, the matter was referred to a third Member.\n<\/p>\n
        7.  With regard to  the  first  contention  of  the  counsel  for  the
\nappellant  that  in  the event of a difference of opinion between the Judicial
\nMember and the Member (Technical) the matter  should  have  been  referred  to
\nanother  Judicial Member, as per Section 21 of the Railway Claims Tribunal Act
\n1987 if the Members of a Bench differ in opinion on any point, the matter  can
\nbe  referred  for  hearing on such point or points by one or more of the other
\nMembers and such point or points shall be decided according to the opinion  of
\nthe majority.   There is no specific provision in the Act that in the event of
\ndifference of opinion, the matter has  to  be  referred  only  to  a  Judicial
\nMember.   Therefore,  the  first  contention  of  the  learned counsel for the
\nappellant fails.\n<\/p>\n
        8.  With regard to the second contention of the  learned  counsel  for
\nthe  appellant,  Section  82 (1) of the Railways Act states that the consignee
\nshould take delivery of the consignment or part thereof nothwithstanding  that
\nsuch consignment or part thereof is damaged.  Under Section 84 of the Railways
\nAct if a person fails to take delivery of any consignment or any part thereof,
\nsuch  consignment  shall  be  treated  as  unclaimed  and the railway can take
\nrecourse to other methods of disposal such as auction after giving due  notice
\nto the  consignee.    But in this case, though the appellant made a demand for
\nopen delivery, the Railway refused to agree to record cent percent damage.  As
\nsuch, basing on the refusal of the railway alone,  the  appellant  refused  to
\ntake delivery of the consignment.\n<\/p>\n
        9.   Whether  the  act  of the appellant in not taking delivery of the
\nentire consignment or part thereof dis-entitle him to claim the damages is the
\nissue in question.  As far as this aspect is concerned, as per  the  arguments
\nof the counsel for the appellant, on<\/p>\n
the  arrival  of  the  goods  at  the  destination  point, when the goods were
\nunloaded 86 bundles of brooms were found to be in a damaged condition and that
\ndamage has been caused due to  the  non-adoption  of  safety  methods  by  the
\nRailway administration.   That too, the goods have been unloaded after a delay
\nof 42 days.  Damages have been caused to the goods because of the  failure  on
\nthe  part of the Railway to give adequate protection to the goods is proved as
\nthe goods were damaged because of the flow of water into the wagon wherein the
\ngoods have been stored.  To say in other words, since the Railway has  refused
\nto  give  cent  percent  damage  certificate,  the  appellant  refused to take
\ndelivery of the goods.  But, as per Section 82 of the Railways  Act  1989  the
\nconsignee  shall,  as  soon  as  the  consignment or part thereof is ready for
\ndelivery, take delivery of such consignment or  part  thereof  notwithstanding
\nthat such consignment or part thereof is damaged.  Besides, as per sub section
\n(3)  of  the  same  Section,  if  the consignee refuses to take delivery under
\nsub-section (1), the consignment or part thereof shall be subject to  wharfage
\ncharges beyond  the  time  allowed for removal.  Basing on this, the appellant
\ncompany, even in the event of not  being  satisfied  with  the  assessment  of
\ndamages  done  by the railway administration, can always go for an alternative
\nmethod of assessment of damages like assessment  by  Chamber  of  Commerce  or
\nindependent surveyors or even assessment by a local Panchayat.  Instead of all
\nthese  things,  the appellant in this case has refused to take delivery of the
\ngoods.\n<\/p>\n
        10.  Under these circumstances, whether under Section 84 and 85 of the
\nthe Railways Act, 1989, the appellant is entitled for a notice  is  the  issue
\nnext arises.  Admittedly, as per Ex.B.7 dated 2.8.1988, the appellant left the
\n86 bundles for assessment of damages.  On 08.08.1988 when he turned up to take
\ndelivery  on  assessment,  he  refused to segregate the damaged goods from the
\nbundle which was in good condition.  Therefore,  the  appellant  was  informed
\nthat the consignment incurred wharfage charges from 2.8.1988 and the same will
\nbe  disposed  off under Sections 55 and 56 A of the Indian Railways Act, 1890.
\nFrom the contents of Ex.B.7 it is clear that on 02.081988  the  appellant  has
\nleft the goods for assessment and on 8.8.1988 when he went to take delivery of
\nthe  same on assessment, since assessment has not been made as per the damages
\nincurred, he did not take delivery of the same, though the appellant is  aware
\nthat  after  taking  delivery  of  the  goods  if it is not satisfied with the
\nassessment made, it can follow  the  other  methods  of  assessments  such  as
\nassessing  the  damages  through  the Chamber of Commerce or local surveyor or
\notherwise.  Having refused to do so, the appellant cannot  now  take  a  stand
\nthat  the  procedure  contemplated  under  Sections  55 and 56 A of the Indian
\nRailways Act 1890, i.e.  before auction he has not been issued with a  notice,
\nhas not  been  followed.    It  is  not  the case of the appellant that he was
\nwilling to take delivery of the goods  and  that  the  railway  administration
\nrefused to  give delivery.  On the other hand, it is the case of the appellant
\nhimself that since the damages were not properly assessed, he refused to  take
\ndelivery of  the consignment.  But, as per the decisions which has been relied
\non by the Tribunal in deciding the issue, viz.  A.I.R.    1993  Rajasthan  200
\n(Union of India  vs.    Mohan  Raj)<\/a>;  A.I.R.  1966 Madhya Pradesh 52 (Union of
\nIndia vs.  M\/s.  Ibrahim Gulaba) and A.I.R.<\/a>  1959 Madhya Pradesh 276 (Managing
\nAgents (Martinn & Co.) vs.  Seth Deokinandan, when the consignee  had  refused
\nto take delivery of the consignment, he had no right to claim damages from the
\nrespondent for non delivery of the goods since there is default on the part of
\nthe consignee  \/  appellant in not taking delivery of the goods.  On the other
\nhand, in the judgment reported in A.I.R.  1973 Allahabad 303 (Niranjan Lal vs.
\nUnion of India), relied on by the learned counsel for  the  respondent,  under
\nsimilar  circumstances,  the Allahabad High Court has taken a view that due to
\nthe negligence on the part of  the  railway  administration  or  its  servants
\ndamage had been caused to the consignment.  Besides, as per the said judgment,
\nthe  responsibility  of  the railway as a carrier does end within a reasonable
\ntime after the goods have reached the destination.  Its  responsibility  as  a
\nwarehouseman,  however,  continues and that responsibility is also the same as
\nthat of a bailee which must come to an end as provided by Sections 55  and  56
\nand the relevant rules framed under the Act.  In the case before the Allahabad
\nHigh   Court  also  the  railway  authorities  were  willing  to  deliver  the
\nconsignment and asked the plaintiff to unload the wagon and with regard to the
\nassessment of damages, the railway official dealing with the delivery of goods
\nstated that the matter would be referred to his higher authorities.   But  the
\nplaintiff  had  not taken delivery of the goods and continued with his request
\nfor assessment of damages before taking delivery thereof.  Hence, the  railway
\nauthorities  disposed  of  the  goods  as per Section 55 of the Act wherein no
\nnotice has been issued to the plaintiff in the above case.  Consequently,  the
\nAllahabad  High  Court  has taken a view saying that since there is failure in
\nfollowing the procedure contemplated under Section 55 of the Act, the sale  is
\ninvalid and  as  such the consignee is entitled for damages.  But, in the case
\non hand, from Ex.B.7 which has been marked as Ex.A.7 by the appellant himself,
\nit is clear that the railway  administration  has  categorically  stated  that
\nsince  detention  of  the goods incurs wharfage charges from 2.2.1988 and they
\nhave clearly brought to the notice of the appellant that unclaimed goods  will
\nbe disposed  of  under  Sections  55  and 56 of the Act.  This letter has been
\nissued on 09.08.1998.  But the auction shall take place only on 5.12.1988.  In
\nspite of the letter dated 09.08.1988, the  appellant  having  failed  to  take
\ndelivery of the goods now the appellant cannot claim damages since a liability
\nhas  been  caused on the appellant to take delivery of the goods under Section
\n82 of the Act.  Having failed to avail that, even if he is not satisfied  with
\nthe  assessment  of  damages  made  by  the Railways, he cannot claim damages.
\nHaving failed to execute the liability which he ought to have done  under  the
\nRailways Act,  now  the  appellant  is estopped from claiming damages.  Hence,
\nfinding no ground to interfere with the order passed  by  the  Tribunal,  this
\nCivil Miscellaneous Appeal is dismissed.\n<\/p>\n
Index :  Yes
\nWebsite :  Yes
\ngp<\/p>\n
Copy to :\n<\/p>\n
1.The General Manager,
\nSouthern Railway,
\nChennai  3.\n<\/p>\n
2.The Railway Claims Tribunal,
\nChennai.\n<\/p>\n
3.The Record Keeper,
\nV.R.  Section, High Court, Madras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court M\/S. Shah Jayantilal vs The Union Of India on 17 May, 2006 In the High Court of Judicature at Madras Dated: 17\/05\/2006 Coram The Hon’ble Miss Justice K. SUGUNA CMA. No. 416 of 1999 M\/s. Shah Jayantilal Jivraj & Co., No.85, Mint Street, Chennai 79. … Appellant -Vs- The Union of India […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-44236","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nM\/S. Shah Jayantilal vs The Union Of India on 17 May, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ms-shah-jayantilal-vs-the-union-of-india-on-17-may-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M\/S. 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