JUDGMENT: The question involved in both the appeals is identical. They are therefore heard together and disposed of by the following common order: 2. C.M.A.No.1581 of 1995 arises out of O.A.I.No.1092 of 1992 on the file of the Railway Claims Tribunal, Madras Bench. The appellant made a claim against the respondent for Rs.34,539 being the loss caused to it by reason of the damage to goods consigned by rail. The facts are not disputed. The consignment was booked on 5.2.1992 at Baran Station to transport to Madurai under railway risk under the railway receipt marked as Ex.B-1. The consignment arrived at Madurai on 4.4.1992. On arrival of the goods at the destination, it was found that a portion of the consignment had been damaged, in respect of which the destination railway issued joint survey report Ex.A-1 stating that 13860 Kgs. of 140 bags of gram kept for assessment delivery and found on most of the bags having holes and from the holes powder with black insects pouring out. The damage was assessed at 35 per cent of 13860 Kgs. There was a claim made by the appellant under Sec.78-B of the Railways Act, 1890 under the original of Ex.A-2. The respondent repudiated under Ex.A-3. Therefore, the claim application came to be filed. 3. The respondent Railway contended that the damage was due to loading of already old and damaged bags by the appellant at the forwarding station, that there was inherent vice in the commodity, that the Railways used reasonable foresight and care in the carriage of the goods, that they were not liable even as bailee under Sec.93(g) of the Railways Act, 1989 and that the appellant was not entitled to any compensation. 4. Exs.A-1 to A-4 were filed on the side of the appellant and Exs.B-1 to B-3 on the side of the respondent. The Tribunal found that the damage was not due to the loading of already old and damaged bags by the sender at the forwarding station, that there was no inherent vice of the commodity that the railways failed to use reasonable foresight and care in the carriage of the goods and that the Railways were liable to pay compensation. The Tribunal found that the damage was not due to the loading of already old and damaged bags by the sender at the forwarding station, that there was no inherent vice of the commodity that the railways failed to use reasonable foresight and care in the carriage of the goods and that the Railways were liable to pay compensation. However, when it came to actual quantum, the Tribunal held that the weevil action could be attributed to inherent defect of the consignment and therefore, the loss had to be shared equally between the appellant and the respondent since both of them had attributed the damage to the consignment in equal proportion. Accordingly, an award for Rs.15,121 was made in favour of the appellant. In as much as the appellant had not been awarded the entire amount claimed, the present appeal has been filed. 5. Mr.Rajamohan, learned counsel for the appellant, submitted that the Tribunal grievously erred in apportioning the quantum, that the railways were alone responsible for the damage caused to the goods, that they had taken their own time to transport, that the conclusion of the Tribunal that there was inherent defect in the goods was not warranted and that the respondent railways had not produced the forwarding note. The learned counsel also relied on the provisions of the Railways Act, 1989, Sec.93 and Sec.98(1)(a). 6. Per contra, the learned counsel for the respondent Mr.V.R.Gopalan contended that the conclusion reached by the Tribunal was unexceptionable, that in the R.R. remarks it was mentioned that contends were dropping, that there was direct loading from cart to the wagon and six bags had been utilised for NS dunnage and that but for the inherent defect there would not have been weevil action. 7. Even according to the Tribal the delay in the transit has not at all been explained. According to the learned counsel for the appellant, for transit from Baran to Madurai it should not take more than two weeks. This was not disputed by the learned counsel for the respondent. The goods were booked on 5.2.1992 and they arrived on 4.4.1992. The delay has not at all been explained by the railways. The forwarding note has not also been produced. The railways had not used reasonable foresight and care in the carriage of the goods. There was transhipment at Vijayawada on 3.3.1992. The goods were booked on 5.2.1992 and they arrived on 4.4.1992. The delay has not at all been explained by the railways. The forwarding note has not also been produced. The railways had not used reasonable foresight and care in the carriage of the goods. There was transhipment at Vijayawada on 3.3.1992. There was further transhipment at Trichy, the date on which it was done, was not known. As to the condition of the goods at the time of transhipment at Vijayawada, there is no evidence. 8. Sec.98(1)(a) of the New Act requires that the facts have to be recorded in the forwarding note. That has not been done in the instant case. Transhipment records have not also been produced. Sec.93 of the New Act provides that even when there is an act or omission or negligence of the consignor or consignee or the endorsee or the agent or servant of the consignor or the consignee or the endorsee and where there is natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods, 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. The very finding of the Tribunal is that the Railway Administration had not proved that it had used reasonable foresight and care in the carriage of the goods under Sec.98(1)(a) when any goods are entrusted to the Railway Administration for carriage, if the goods are in a defective condition as a consequence of which they are liable to damage, deterioration, leakage or wastage or the goods are either effectively packed or not packed in such a manner as may be prescribed and as a result of such defective or improper packing are liable to damage, deterioration, leakage on wastage, the Railway Administration had to ensure that the fact of such condition or defective or improper packing had been recorded by the consignor or his agent in the forwarding note to escape liability. 10. Admittedly, the forwarding note has not been produced by the railways. The R.R. remarks are “contents dropping”. The defect in the goods has not been noted in the R.R. We have already noticed that transshipment records had not also been produced. 10. Admittedly, the forwarding note has not been produced by the railways. The R.R. remarks are “contents dropping”. The defect in the goods has not been noted in the R.R. We have already noticed that transshipment records had not also been produced. There had been inordinate delay in transporting the goods. There was transhipment at Vijayawada and again at Trichirapalli. There is absolutely no indication as to the condition of the goods during these transhipments. The Tribunal had assumed without any basis that there was inherent defect in the goods. We have already noticed that the provisions of the Act requires facts to be recorded in the forwarding note and the same has not been done. 11. In these circumstances, I hold that the Tribunal was in error in apportioning the liability. It should have fastened the entire liability on the respondent railways. Similar view has been expressed by Sivasubramaniam, J in C.M.A.No.578 of 1992 on 20.9.1999 and also by Murugeasan, J in C.M.A.No.1275 of 1992 on 21.9.2000. 12. The other C.M.A. relates to another consignment tangible along with the consignment in the earlier C.M.A., the facts are identical and the defence is same. The Tribunal is in error in apportioning the liability. Both the civil miscellaneous appeals will stand allowed. There will, however, be no order has to costs.