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Rajasthan High Court · body

2000 DIGILAW 229 (RAJ)

Jodh Raj Chhotey Lal v. Union of India

2000-02-22

P.P.NAOLEKAR

body2000
JUDGMENT 1. - Admitted facts necessary for deciding the question are that the consignment consisting of 191 bags of gram was booked by the appellant on 18.5.1983 from Khedli railway station to Howrah railway station vide railway receipt dated 18.5.1983. Out of the said 191 bags of gram booked by the claimant appellant only 87 bags of gram reached at the destination station on 12.6.1983. On information, the claimant appellant approached the railway authorities on 23.6.1983 and produced indemnity bond for delivery of 87 bags of gram to him which was not complied with and no delivery was made to the claimant appellant. In the meantime the consignment was seized under the West Bengal Foodstuffs (Restrictions on Storage in Railway Premises) Order, 1979 and on account of that fact also the railway did not deliver 87 bags to the claimant appellant. The claimant appellant filed claim petition claiming cost of 191 bags of gram, krishi upaj mandi tax, arhat (commission), muddhat rate, sales tax rajasthan, carting and handling charges, cost of vardana 191 bags, bank commission and interest, travelling cost and interest amounting to र 70,081.79p. 2. The Tribunal after consideration of the material placed on record reached to the conclusion that admittedly 87 bags of gram reached at the destination station and thus the claimant appellant is entitled to cost of 104 bags of gram and accordingly granted decree for an amount of र 26507.36p. and interest at the rate of 6% per annum from the date of its order till the payment of decretal amount is made. 3. It is submitted by the counsel for claimant appellant that when the claimant appellant had produced the indemnity bond on 23.6.1983 the railway administration was bound to deliver the goods i.e. 87 bags of gram which reached the destination and since the railway did not deliver the bags and thereafter seized under West Bengal Foodstuffs (Restriction on Storage in Railway Premises) Order, 1979 the claimant appellant is entitled for damages. 4. The Railway Claims Tribunal on consideration of the provisions of Section 77 of the Indian Railways Act and the provision of West Bengal Foodstuff (Restriction on Storage in Railway Premises) Order, 1979 reached to the conclusion that the railway was liable to keep the goods as bailment uptil 22nd of June, 1983 only and not thereafter. The order of seizure was passed by the State Authorities (Court) on 23.6.1983. The order of seizure was passed by the State Authorities (Court) on 23.6.1983. When the order was already passed on 23.6.1983 under Order of 1979 the railway has no jurisdiction or authority to deliver the goods which has been under the seizure under Order of 1979. Thus it cannot be said that the railway is in any way at fault for non-delivery of the goods i.e. 87 bags of gram to the claimant-appellant. I do not find any infirmity in the order passed by the Railway Claims Tribunal in regard to damages of 87 bags of gram and decree passed by the Tribunal in that regard for 104 bags and the other incidental expenses is in accordance with law. 5. Then it is submitted by the learned counsel for the appellant that the Railway Claims Tribunal has erred in holding that by virtue of Section 78(d) of the Indian Railways Act, 1890 the claimant-appellant was debarred from claiming any interest on the amount which was not paid during the pendency of the proceedings. 6. Under Section 73 of the Indian Railways Act, 1890 the basic responsibility of railway for loss, destruction or deterioration etc. of animals or goods is set out. When the railways assume this responsibility, broadly speaking, they will be liable for loss of or injury to goods while in transit by rail arising from any cause whatsoever, unless such loss or injury is proved by the railways to have been caused by an act of God, or by an act of war, or by an act of public enemies or is proved to be consequence of inherent vice in the thing carried or is attributable to the consignor's own fault. 7. 7. Section 78 of the Indian Railways Act, 1890 appears to be an exception to the general rule which begins with "notwithstanding anything contained in the foregoing provisions, a railway administration shall not be responsible-(a) for the loss, destruction, damage, deterioration or non-delivery of any goods with respect to the description of which an account materially false has been delivered under sub-section (1) of Section 58 if the loss, destruction, damage, deterioration or non-delivery is, in any way, brought about by the false account; or (b) for the loss, destruction, damage, deterioration or non-delivery of animals or goods in cases where there has been fraud practised by the consignor or the consignee or an agent of the consignor or the consignee, or (c) for the loss, destruction, damage, deterioration or non-delivery of animals or goods proved by the railway administration to have been caused by or to have arisen from improper loading or unloading by the consignor or the consignee or their agent, or the consignor or the consignee, or on account of riot, civil commotion, strike, lock-out, stoppage or restraint of labour from whatever cause, whether partial or general." 8. Clause (d) of Section 78 provides for any indirect or consequential damages or for loss of particular market.,Section 78(d) merely incorporates the measure of damages as contemplated by Section 73 itself. The liability of an ordinary carrier even in the common law does not extend to a damage which is indirect or remote. Loss of profit or loss of a particular market is a remote damage and it can be awarded only if it is proved that the party which is guilty of committing the breach was aware or had knowledge that such a loss would be caused. Section 78(d) expressly bars the remedy of this kind of damage. 9. In the present case the claimant has not claimed loss of market or remote damage or any indirect or consequential damages. The court below has rejected grant of interest pendente lite to the claimant on the ground that it falls within Section 78, it being indirect or consequential damages. The loss of interest, on the amount of price of the goods which has not been delivered, cannot be said to be debarred under Section 78(d) of the Indian Railways Act, 1890 and the court cannot refuse the interest taking recourse to Section 78(d). The loss of interest, on the amount of price of the goods which has not been delivered, cannot be said to be debarred under Section 78(d) of the Indian Railways Act, 1890 and the court cannot refuse the interest taking recourse to Section 78(d). In the absence of any written instrument or notice the claimant will, of course, be entitled to the interest pendente lite. 10. In this case there is a dear-cut finding of the Tribunal that 104 bags of gram did not reach the destination station because of the fault of the railway and not on account of the fault of the consignor, that being the case the claimant-appellant is entitled to the interest at the rate of 8% per annum from the institution of the suit till the disposal of the same. The judgment and decree refusing grant of interest is set aside and the interest is awarded as mentioned hereinabove.In the result of the aforesaid discussion the appeal is partly allowed. The decree granted by the Tribunal is modified to the aforesaid extent. There shall be no order as to costs.Appeal Partly allowed *******