Union Of India vs M/S Bharat General & Textiles
2009 Latest Caselaw 2787 Del

*      HIGH COURT OF DELHI : NEW DELHI

                      FAO No. 355/1998

     %            Judgment reserved on: 14th July, 2009

                  Judgment delivered on: 23rd July, 2009

Union of India
Through the General Manager
Northern Railways
Baroda House
New Delhi                                   ....Appellant

             Through: Mr. Sanjay Kumar Pathak, Adv.

                   Versus

M/s Bharat General & Textiles
Industries Ltd.,
having Registered Office at:
R.N.Mukherjee Road,
Calcutta-700001
And Branch Office
61/9, Ramjas Road, Karol Bagh,
New Delhi.                                  ...Respondent.

                        Through: None

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                      Yes

2. To be referred to Reporter or not?                   Yes

3. Whether the judgment should be reported
   in the Digest?                                       Yes



FAO No.355/1998                                   Page 1 of 12
 V.B.Gupta, J.

Appellant/Union of India has filed this appeal

challenging judgment dated 14th January, 1998, of

Railway Claims Tribunal, Delhi (for short as „Tribunal‟),

vide which appellant was directed to pay a sum of

Rs.33,237/- (Rupees Thirty thousand two hundred

thirty seven) to respondent, together with

proportionate costs and pendent lite and future

interest thereon @ 10% per annum (simple interest)

from the date of filing of the application.

2. Brief facts case are that respondent booked

consignment of 282 bags of groundnut deoiled cake for

carriage from Guntur to Delhi Kishan Ganj, under

Railways Receipt (R.R.) no. 701683, invoice no. 1035,

dated 10.07.1993. Respondent is endorsed consignee

of R.R. for valuable consideration. According to

respondent, when consignment reached at destination

station on 19th July, 1993, it was found damaged by wet

to the extent of 50% on 72 bags and 70% on 98 bags.

Hence, a sum of Rs. 39,480/- was claimed as

compensation for damaged caused to the consignment,

which represent the market value of the damaged

consignment.

3. Claim of respondent was contested by appellant.

Preliminary objection was raised that suit was not

instituted by duly authorised person. On merits, it was

stated that damage to said goods was never caused

due to any negligence on the part of the appellant,

rather there had been negligence on the part of

consignor himself. Loading of consignment was done

by consignor himself, directly from lorry to wagon and

same was not supervised by Railway staff. The

consignor did not comply with packing conditions-P-7.

The bagging was in defective condition and Railway

took every reasonable care in carriage of the

consignment. Appellant allotted water tight wagon for

carriage of said consignment. The consignment was

never damaged in custody and control of railway and

claim of the respondent is not maintainable.

4. On 14th July, 2009, when matter was listed for

hearing, nobody appeared for respondent. Even prior

thereto, on 13th July, 2009 also none appeared for

respondent. Hence, respondent was proceeded ex

parte.

5. Learned counsel for appellant contended that

R.Rs. in question were issued on „said to contain basis‟

and it was the duty of respondent to establish that

exact quantity/conditions of goods mentioned in R.Rs.

in question were infact loaded. There was no

negligence or misconduct on the part of Railway

administration in carriage of consignment in question.

There was an endorsement on Railway Receipts, that

is, "Loading was not supervised by Railway staff" and

it was done direct from truck to wagon and the

contents of bags were not checked by Railway staff and

goods in question reached at destination station in

original wagon with seals of wagon found intact and

wagon in question was also found to be "water tight".

Under these circumstances, findings of Tribunal that

damage to consignment by "wet" had taken place

during transit, are wrong. It is also contended that

endorsement on RRs, forms contract between the

parties and Tribunal could not have gone beyond

written contract between the parties.

6. Lastly, it is contended that appellant cannot be

held liable to pay compensation, in view of protection

under Section 93(g) of Indian Railways Act, 1989 (for

short as „Act‟). Learned counsel for appellant in

support of his contentions cited Union of India v.

Hukumchand & Ors, AIR 1970 Madhya Pradesh

55, in which it is held that;

"There is, however, no justification for drawing any such inference in this case because the railways have placed sufficient material showing that proper and requisite precautions were taken by them to provide against any such contingencies. The damage to the goods

was not attributable to any negligence on the part of the railway administration or its servants but it was caused due to natural causes by percolation of rain- water during a long journey from Bareilly to Damoh."

7. I have considered the contentions raised by

learned counsel for the appellant.

8. Section 93 of the Act, provides for general

responsibility of railway administration for loss,

destruction, damage or deterioration in transit of any

consignment etc. It read as under;

93."General responsibility of a railway administration as carrier of goods.- Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage or deterioration in transit, of non-delivery of any consignment, arising from any cause except the following namely:-

a) act of God;

b) act of war;

c) act of public enemies;

d) act, restraint of seizure under legal process;

e) orders of restrictions imposed by the Central Government or a State

Government or by an officer or authority subordinate to the Central Government or a State Government authorized by it in this behalf;

f) 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;

g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vide of the goods;

h) latent defects;

i) fire, explosion or any unforeseen risk:

Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid causes, 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."

9. Clause (g) of Section 93 of the Act, under which

appellant is claiming protection, provides "if there is

natural deterioration or wastage in bulk or weight due

to inherent defect, then railway shall not be

responsible of the loss, destruction, damage etc".

10. In the present case, there is nothing on record to

show that goods which were handed over to railways

for transportation were in damaged condition.

11. It was for the railway to show and prove that

there was negligence, act or omission on the part of

the consignor, consignee or endorsee, as a result of

which goods got damaged. The basic question is, if the

goods are handed over to railways in proper condition,

then railway would be liable for any loss/damage or

not.

12. No evidence has been produced by appellant that

goods handed over to it by respondent, were in

damaged condition or respondent had not taken proper

care or not following the directions, while packing

these goods.

13. On the other hand, AW-1 Vijay Kumar Kochar,

Sales Manager of respondent, in his statement stated

that "The consignment covered under RR Nos.701683

was tendered to respondent for carriage in perfectly

sound condition and none of the packets were in wet

and damaged condition at the time of booking".

14. AW-1, further stated that "above consignment

was received at the destination station in badly

damaged and rotten condition, damaged by water. The

losses were assessed by railway authorities and

assessment certificate was issued".

15. In cross-examination AW-1, denied that the

said goods were not in perfect condition when they

were packed. He also denied that goods have been

damaged by consignor‟s negligence and not by railway

negligence.

16. Tribunal in this regard held;

"The consignment was entrusted on 10.7.93 under RR No.701683. The

forwarding Note Ex.R-1 and the copy of RR Ex. R-2 produced by the Respondents go to prove that 282 bags of Ground-nut de-oiled cake weighing 225 qtls. were entrusted to the Respondents for carriage and that the consignment was booked at Railway risk. There is nothing in the Forwarding Note to show that the consignment was not in sound condition at the time of booking. Respondents has not produced any evidence to prove that the goods were not in sound condition at the time of booking. The DDPC(Ex.R-6) and the Assessment Report (Ex. R-3) show that the consignment was damaged by wet to the extent of 70% in respect of 98 bags; and 50% in respect of 72 bags. Once when the entrustment of the consignment to the Railway for carriage is proved, the liability of the Railway Administration to pay compensation for the damage caused to the consignment is absolute except in case where Railways plead and prove that they are entitled to protection under provisos (a) to (i) of Section 93 of the Railways Act. Even then the Railway Administration has to further prove that they have exercised reasonable care and foresight in the carriage of the consignment."

The Tribunal further held;

"It is clear from DDPC that Respondents have not taken proper monsoon precautions by providing gunny strips in the door crevices, as a

result of which damage by rain water occurred to the consignment and that Respondents have not exercised reasonable care and foresight in carrying this consignment. Hence they are not entitled to protection u/s.93 (g) of the Indian Railways Act and are liable to pay compensation."

17. This Court in a similar case, Union of India v.

Hindustan Petroleum Corporation Limited, 2004

VIII AD (Delhi) 661 held;

"Counsel for the appellant submits that the Railways are protected under Sections 93 & 94 of the Railways Act inasmuch it was the duty of the respondent to ensure that the consignment entrusted to the Railways was properly secured and to prove that damage was caused during transit. The question whether the consignment was properly secured at the time of placement with the Railways is one of fact. The Tribunal finds that there is no evidence on record to show that the Railways can claim protection under Section 93 by insinuating that the consignments were not properly sealed and/or handed over in defective condition. On the contrary, there is positive evidence on record to show that the sealed were checked when the container moved into the yard as also was examined by the Railway staff for

any leakage of wagon. In that event of the matter, the Railways can hardly claim protection under Section 93 of the Railways Act."

18. In the present case, Tribunal has held that

appellant has not taken proper monsoon precaution by

providing gunny strips in the good crevices and

appellant has not exercised reasonable care and

foresight in carrying the consignment.

19. Thus, I do not find any ambiguity or infirmity in

the impugned judgment of the Tribunal.

20. There is no merit in the present appeal and same

is hereby dismissed.

21. No order as to costs.

22. Trial court record be sent back.

July 23, 2009                          V.B.GUPTA, J.
Bisht