Gauhati High Court
MFA/27/2012 on 27 September, 2021
Page No.# 1/12
GAHC010003982012
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
M. F. A. No.27/2012
THE UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER,
N.F. RAILWAYS, MALIGAON, GUWAHATI - 11, ASSAM. ...... APPELLANT.
-Versus-
M/S. DEY'S COLD STORAGE PVT. LTD., SILCHAR ROAD,
P.O. AND DISTRICT- HAILAKANDI, ASSAM. ...... OPPOSITE PARTY.
Advocate for the appellant: Mr. B. K. Das, Standing Counsel, Railway.
Advocate for the respondent: Ms. M. Sharma.
BEFORE
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
Date of hearing: 25.08.2021.
Date of judgment: 27.09.2021.
Page No.# 2/12
JUDGEMENT AND ORDER (CAV)
Heard Mr. B.K. Das, learned standing counsel appearing for the appellant Railway as
well as Ms. M. Sharma, learned counsel appearing for the private respondent.
2. The present appeal is directed against the judgment and order dated 23.09.2011,
passed by the learned Railway Claims Tribunal, Guwahati, in Claim Application
No.OAI/GHY/2010/0075, whereby the respondent/appellant was directed to pay an amount
of Rs.12,20,682/- only along with interest @ 6% per annum, from the date of filing of the
application within 90 days from the date of order, in default to pay interest @ 12% per
annum, till realization along with cost of application fee and legal practitioner's fee.
3. According to the applicant, a consignment of 39775 bags of potato of 53 kg. each was
booked from Yamuna Bridge (JAB) to Silchar (SCL), under the invoice No.01, RR No.280180,
dated 02.04.2009. The consignment was transshipped at Lumding for gauge diversion on
08.04.2009. After being transshipped into Meter Gauge, 20 BG wagons containing 18500
bags of potato were dispatched from Lumding on 09.04.2009 for Lalbazar and the same were
delivered to the applicant on time, subject to shortage of 1012 bags, as per the delivery
certificate of Lalbazar. As per the endorsement in the gate pass at NGC, 23 BG wagons
containing 21275 bags of potato out of which the following shortage and damage was found:
Out of 21275 bags of potato, received 20633 bags i.e. shortage of 642 bags.
4. Out of the 20633 bags of potato received, 19010 bags were found in good condition and
1623 (1443+180) found in damaged condition, kept outside the godown. Therefore as per
the delivery certificate of Lalbazar and Gate Pass of NGC, which were issued by the
respondent/appellant in the present appeal, the total shortage comes to 3277 bags
(1012+642+1443+180). As per the application, for the above shortage and damage, the
application/present respondent claimed @ Rs.415/- per bag [Rs.330/- + Rs.85/- (Rly.
Freight)] and stated that the respondent is fully liable for the above loss.
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5. Upon receipt of notice of the application, the respondent filed written reply with certain
objections against the claim such as, the application is not maintainable, as the same is not
verified by proper person having authority. The respondent also denied that the applicant is
entitled for the shortage, as they unable to prove their claim and hence the question of
payment does not arise and prayed for dismissal of the case.
6. Upon the pleadings of the parties, the following issues were framed:
1) Whether valid notice U/s.106 of the Railways Act, 1989 served by the applicant to
the respondent in time?
2) Whether the respondent has taken all the care to ensure the delivery to the
applicant at the destination?
3) If not, what is the liability?
4) Relief and order?
7. Both the parties filed various documents in support of their respective claim. After going
through the documents and hearing arguments of learned counsel for both sides, the learned
Railway Claims Tribunal, Guwahati decided all the issues in favour of the applicant and passed
the impugned judgment and order, against which the present appeal is preferred by the
appellant/respondent Railway.
8. Being aggrieved by the impugned judgment and order, the present appeal is preferred
inter alia, on the ground that the learned Tribunal committed miscarriage of justice in passing
the impugned judgment, there was no negligence or misconduct on the part of the Railways
nor of its servants for the loss/damage/deterioration of the said consignment, that the
learned Tribunal failed to apply the provisions of Section 98 of the Railways Act, that no claim
for compensation of any loss or damage is sustainable in view of the provisions of Section 93
of the Railways Act, etc. etc. For the delay in delivery of the consignment, if any, it is pleaded
that the delays is attributable to the deteriorating land and order situation at the destination
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station and as such, no claim for compensation of any loss or damage is sustainable in view
of the provisions of Section 93 of the Railways Act. Accordingly, the appellant prayed for
setting aside and quashing the impugned judgment and order, passed by the learned Railway
Claims Tribunal, Guwahati.
9. Heard the arguments advanced by learned counsel for both sides and perused the
record.
10. According to the learned counsel for the appellant, consignment was booked under RR,
the Railway authority has no liability for any loss and damage to the consignment as
declaration in the RR "said to contain" only indicates the weight not the quantity. Accordingly,
it is contended that under Section 110 of the Railway Act, burden shift to the consignor
claiming compensation. Decision of the MFA 92/2016 (dated 21.05.2020) of Co-ordinate
Bench of this Court has been referred.
Assailing the impugned the judgment it is contended that the learned Tribunal has
failed to appreciate various aspect of the matter and as to the reasons for delay in delivery
and has not applied its mind to the entirety of the matter while deciding the responsibility of
respective parties resulting delay, loss and damage to the consignment.
11. Per contra, the learned counsel for the respondent has vehemently argued that various
official communications between the parties has been brought on record by the applicant
which would reveal the factual scenario prevailed at that point of time and the learned
Tribunal has discussed and appreciated all relevant piece of documents in the impugned
judgment. It has been contended that the decision so relied by the appellant's side is not
applicable as the facts and circumstances of the present case is of different nature. It
contends that the present case is not solely based on RR because applicant/respondent has
produced documentary evidence regarding purchase of the articles as mentioned in the RR,
by producing purchase invoice. Various documents produced before the Tribunal itself reveals
that delay in delivery cannot be attributed to the applicant and burden lies upon the Railway
Page No.# 5/12
authority under Section 93 of the Railway Act that they have taken due care and caution by
transmitting the consignment so as to prevent damage. Further, it has been submitted that as
is not a case of transmit of consignment at the owner's risk, transportation in deffective
packed and that applicant has produced all relevant documents while claiming for
compensation, so none of the provision under Section 97, 98 and 110 of the Railway Act is
applicable in the case in hand, as has been challenged in the appeal.
12. Another piece of argument advanced by the learned counsel for the respondent is that
the notice under Section 106 has duly served upon the Railway authority apprising all the
grievances and the grounds for claiming damages but there was no any proper response by
the Railway Department.
13. I have carefully gone through the impugned judgment along with the LCR.
14. The learned Tribunal while deciding the issue nos.2 and 3, discussed and taken into note
about the fact situation as well as the documents filed by both the parties. Relevant
observation of the learned Tribunal while discussing issue nos.2 and 3 is reproduced below:
"A consignment of 39775 bags of potato of 53 Kg. each was booked from
JAB to SCL under Invoice No.01 on 02.04.2009 consisting 43 'said to contain'
BG wagons. Statement of Delivery Book which is issued by SS/Lalbazar shows
the wagon Nos. & receipt of the packages for 20 BG wagons. Delivery Book for
remaining 23 wagons is not available/not furnished by any of the party. The
counsel for the applicant stated that the wagons were transshipped at Lumding
but due to the Law and Order problem these wagons could not be delivered at
the destination. On 01.05.09 the representation form M/s Dey's Cold Storage
Pvt. Ltd. stated that 43 BG wagons containing Potatoes believed to be arrived at
Lumding tansshipment point on 08.04.09. After being transshipped in to MG
wagons, contents of 20 BG wagons had been dispatched from Lumding on
09.04.09 mand the same was delivered to the applicant at destination in due
Page No.# 6/12
time in good condition. But the balance quantity, under the same Invoice, in 23
BG wagons after transshipment into MG, had been detained at Lumding since
09.04.09, though the train bound for Badarpur area had been sent on 10 th,
11th, 12th & 14th April' 09. Being the perishable consignment, the local
administration of N.F. Railway could dispatch it by the earliest means, but they
did not do so.
In the same letter it is further mentioned by the applicant that after
waiting for some time they had approached various authorities of N.F. Rly.
Admn. for delivery of the balance quantity of perishable to them at the earliest
on 18.04.09. Ultimately as advised by the GM, N.F. Railway they made an
appeal in writing to deliver the said quantity at New Guwahati (NGC) from
where they could take the same to the destination by road. Subsequently the
applicant, as per their letter dated 01.05.09, has also written two more letters
dated 21st and 22nd April' 09. It is further stated in their same letter that finally
the Commercial Deptt. of N.F. Rly had effected delivery of the said perishable
consignment at NGC at the late evening hours of 28.04.09 and 29.04.09. Before
effecting delivery, CCM/FM/N.F.Rly. had advised them that the delivery will be
granted on assessing of the actual condition of the said consignment.
In the same letter it is further mentioned that none had arrived at NGC to
see the actual condition of the consignment and what to speak of assessment
delivery and that the damaged goods kept for assessment but no authority of
Commercial Deptt. had come forward to assess the quantity but they were
demanding W/C and that leaving apart from damage and shortage certificate
they did not found the actual and the total shortage. Copy of this letter is also
marked to Hon'ble Prime Minister, P.M.O. House, New Delhi. Therefore, it is
clear that Railway did not take care to dispatch the consignment in their
destination for the balance portion.
Page No.# 7/12
After having both the sides and the documents available in the file, it is
further noticed by this Tribunal that SS/Lalbazar had issued the Delivery
Certificate dated 21.12.09 reads as follows:
"Certified that total 20 Nos. BG wagon delivered at LLBR total load mark
on RR 925 X 20 = 18500 bags but received 17488 bags and 1012 B/s potato
short as per RR and 23 BG wagon booked delivery at LLBR & physical delivery
at NGC total BG L/M 925 X 23 = 21275. Total received 20633 B/s potato out of
which 19010 B/s good condition & 1443 B/s potato damage, kept out side pf
godown & 180 B/s damage kept in godown and 1443 bags damage B/s
disposed vide DCM/GHY Lt. No.C/ACM/GHY-Potato/09 dated 11.05.09. Party
applied for A/D but no A/D report submitted at LLBR."
From the above it is seen that 20 BG wagons containing 18500 bags a
per load mark were delivered at Lalbazar out of which only 17488 bags were
received and in the same certificate it is also seen that 1012 bags found short.
Remaining 23 BG wagons had physically delivered at NGC which contained
21275 bags of potato out of which only 20633 bags Potato received i.e.
shortage = 642. Again out of 20633 bags of Potato received, 19010 bags found
in good condition and 1623 bags (1443 + 180) found in damaged condition
kept out side the Godown and in side the Godown and 1443 damaged bags
disposed on 11.05.09 for which the party prayed for A/D, but no A/D Report
submitted at LLBR.
In their pleadings the counsel for the respondent stated that the
applicant issued a letter on 03.04.09 to CFTM/N.F.Rly (Ext.R7) with a request
for diversion at LLBR in which the applicant has stated that "The subject
consignment is urgently required at LLBR to meet the present scarcity and For
diversion of wagons at LLBR if any, diversion charges are required we are ready
to pay them as per Railway Rule and IF the diversion is permitted we are ready
Page No.# 8/12
to take delivery under CR". However, entire consignment was not delivered at
Lalbazar, thus Respondent has failed to honour the party's request as
mentioned in their letter. Therefore the delivery under CR as mentioned in
applicant's letter cannot be passed by the respondent in all consideration as the
applicant in his letter had requested for open/assessment delivery.
XXXXXXXXXXXXXX
From Exbt.R4 i.e. from the reply it is very clear that they are arranging
for a physical delivery at NGC. After the consignment has been arrived at NGC
the applicant started segregation of the goods in the presence of the railway
officials. Then he demanded the certificate to the effect. But the same was
refused and subsequently the applicant refused to take delivery of the same
and demanded open delivery.
Respondent in their letter dated 29.04.09 (Ext.R12) stated that "Your
application dated 29.04.09 for granting for open/Assessment delivery can not
be entertained now as all the damage bags were segregated in presence of
your people and HQ's staff and ACM/LMG. Further, you had not applied for
open/Assessment delivery though you have completed unloading of 13/32.5 on
28.04.09. This is as per telephonic order of Sr.,DCM/LMG through DCM/GHY".
The above plea of the respondent is on attempt on technical ground to deprive
all the factual circumstances.
The applicant in their correspondence of A/D Report had already
indicated that considering all the circumstances and the delivery of the
consignment considering both the sides and Law and Order problems, they are
ready to take delivery at NGC vide their letter dated 01.05.09. However, while
granting delivery on the mutually agreed point which is crystal clear although
the same is not in black and white, but both the sides fully understood the
circumstances that the consignment can not be moved to the destination
Page No.# 9/12
station or diversion point as per the request of the applicant. Even under the
circumstances the respondent had not been considerable to facilitate the
difficulty and the natural justice. There had been Law and Order problem and
operationally it was not convenient to deliver the consignment at the original
destination. Subsequently, at the proposed destination of the applicant, the
applicant by his effort has subsequently prove that they wanted to take delivery
of the consignment as early as possible. On the same time they had also stated
that open and assessment delivery. The balance consignment which was
subsequently moved to NGC after reasoning by the applicant and admitted by
both the sides after correspondence. Ultimately it was brought to NGC and the
respondent itself vide their letter shows that the consignment was unloaded
and segregated in the presence of both the sides. The question of segregation
does not arise if there is no damage or deficiency occurred. Therefore, it is
proved that it was very well in the knowledge of both the sides that the
consignment due to transit delay might have suffered damage. In this particular
case the respondent has taken the help of the Food Inspector who after
inspection advised for dumping which established that the consignment which
was not lifted by the applicant was in damaged condition. Has there been no
damage, respondent had other options for disposal of consignment which was
not lifted."
15. The above findings of the learned Tribunal reveals that all the prevailing situations
including law and order problem was also discussed and taken note of. The aforesaid
consignment was booked on 02.04.2009 under RR but as in between there was a diversion of
consignment from meter-gauge to broad-gauge the entire consignment could not be
delivered and part delivery was made on 09.04.2019 and the endorsement in the Railway
Gate Pass at NGC indicate the shortage and damage of the consignment of potatoes. Final
Gate Pass issued by the Station Superintendent of Lalbazar also reveals that out of 21275
Page No.# 10/12
bags of potato, they received 20633 B/s potato out of which 19010 was in good condition and
1443 bags potato found damage which was kept outside the godown and 180 B/s damage
kept in godown and 1443 bags disposed and although the party applied for A/D but it was
not submitted at Lalbazar. Such a certificate wholly supported the contention raised by the
applicant about the damage to the consignment. Further, after much pursuance by the
applicant with different higher authority of the Railway Department the consignment was
delivered on 29.04.2009. Obviously, there was a delay in delivery of consignment, resulting
damage of potatoes. The learned Tribunal has also observed that raising technical issues
instead of prompt delivery is against the interest of justice. The damage assessment at the
time of final delivery was made in presence of both the parties and that being so, prayer of
the claimant cannot be discarded on such technical issues, whereas the Railway authority has
not given any A/D as claimed by the applicant/respondent.
16. Admittedly, it is not a case solely based on RR but because of peculiar circumstances,
long delay has occurred in delivery of consignment, which could have resisted by the Railway
authority in order to prevent damage to the consignment. The matters on record does not
speak anything that can be attributed to the applicant for such delay and damage. The
appellant on the other hand failed to prove that they took proper care of the consignment
which were kept in open space till delivery to the consignor.
17. Now the provision of Section 93 of the Railway Act reads as follows:
"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, or 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;
Page No.# 11/12
(d) arrest, restraint or seizure under legal process;
(e) orders or 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 authorised 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 vice 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."
Further, Section 95 of the Act provides as follows:
"95. Delay or detention in transit.--A railway administration shall not be
responsible for the loss, destruction, damage or deterioration of any
consignment proved by the owner to have been caused by the delay or
detention in their carriage if the railway administration proves that the delay or
detention arose for reasons beyond its control or without negligence or
misconduct on its part or on the part of any of its servants."
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18. In the given backdrop, this present case as discussed above and coupled with the
provision of Section 93 and 95 of the Act, it would reveal that the Railway administration has
not taken due care for delivery of consignment after part delivery of the same and they
cannot be absolved from their responsibility for the loss, damage etc. sustained by the
claimant.
19. Considering all entirety of the matter, this Court is of the opinion that the impugned
order suffers from no illegality, which calls for interference. The decision relied upon by the
appellant is not applicable to the present case. In view of the above, the appeal filed by the
appellant devoid of merit and consequently stands dismissed. No cost.
Send back the LCR.
JUDGE
Comparing Assistant
