Judgment :- COMMON JUDGMENT E.PADMANABHAN, J., C.M.A.No.1596 of 1995 has been preferred as against the order dated 20.02.1995 made in O.A.No.I/1368/93 on the file of the Railway Claims Tribunal, Madras Bench. 2. The appellant M/s.Kedarnath Jagdish Rai herein moved the Railway Claims Tribunal on 06.09.1993 claiming a compensation of Rs.10,110/- towards damages for the goods consigned by rail, in respect of the goods consigned on 15.02.1993 under Railway Receipt No.596443 from Kota to Madurai, consignment being 140 bags of wheat of the value of Rs.1,78,000/-. The appellant caused a notice under Section 78B of the Indian Railways Act, 1890 on 05.05.1993 and thereafter moved the application under Section 16 of The Railway Claims Tribunal Act. The claim was resisted by the Railways. The Tribunal framed the following points for consideration: (i)Whether the applicant has title to the consignment in question? (ii)Whether the damage was due to loading of already damaged goods by the sender at the forwarding station and inherent vice of the commodity? (iii)Whether the railways used reasonable foresight and care in the carriage of the goods? (iv)Whether the applicant is entitled to any compensation and if so, how much? (v)What relief is the applicant entitled to? 3. On a consideration of the documentary evidence, the Tribunal answered the first issue in favour of the claimant. On the second point, the Tribunal held that for the defect in the commodity consigned, the respondent Railways is not liable. On the third point, the Tribunal held that the Railways failed to use reasonable foresight and care in the carriage of goods and answered the point against the Railways. On the fourth point, the Tribunal awarded Rs.6,636/- as compensation as against the appellant's claim of Rs.10,100/-. The claim petition has been allowed in part, awarding Rs.6,636/- as compensation with interest at 12% per annum from the date of application till the date of realisation with proportionate cost. Not being satisfied, the claimant has preferred the present appeal. 4. C.M.A.No.1597 of 1995 has been preferred by the appellant M/s.Hemraj Lalji & Co., not being satisfied with the order passed by the Railway Claims Tribunal, Madras Bench dated 31.01.1995 made in O.A.No.I/315/93. 5. The appellant is the consignor of 137 bags of gram sent from Kota to Madurai to the value of Rs.95,125/-. 4. C.M.A.No.1597 of 1995 has been preferred by the appellant M/s.Hemraj Lalji & Co., not being satisfied with the order passed by the Railway Claims Tribunal, Madras Bench dated 31.01.1995 made in O.A.No.I/315/93. 5. The appellant is the consignor of 137 bags of gram sent from Kota to Madurai to the value of Rs.95,125/-. As the consignment reached the destination after a long delay of 95 days, the appellant caused a notice under Section 78B of the Indian Railways Act, 1890 on 09.05.1992 and thereafter filed a claim petition under Section 13 (1) (a) (i) of the Railway Claims Tribunal Act, 1987. The claim was resisted by the Railways. Documents were marked by either side but no oral evidence was let in. The Tribunal framed the following five points for consideration: (i)Whether the partial shortage and damage were due to slack loading by the sender at the forwarding station and inherent vice of the commodity? (ii)Whether the railways are not liable even as bailee under Section 99(1) of the Railways Act, 1989? (iii)Whether the Railways used reasonable foresight and care in the carriage of the goods? (iv)Whether the applicant is entitled to any compensation and if so, how much? (v)What relief is the applicant entitled to? 6. On a consideration of the documentary evidence, the Tribunal answered the first point in affirmity, on the second point, the Tribunal held that the delay has aggravated the loss, on the third point, the Tribunal held that the delay on the part of the Railways has aggravated the loss due to insect action even though it could be due to inherent vice of the commodity and on the fourth point, the Tribunal held that the appellant is entitled for compensation and fixed it at 50% of the loss and awarded in all Rs.3,256/- as against the claim of Rs.15,541/- with 12% interest with proportionate cost. Not being satisfied, the claimant has come forward with this appeal. 7. C.M.A.No.1598 of 1995 has been preferred by M/s.Kedarnath Jagdish Rai, in so far as the claim of the appellant has been disallowed in part by the orders of the Railway Claims Tribunal made in O.A.No.I/688/95 dated 30.01.1995. The appellant claimed compensation for damages to the consignment of 122 bags of gram booked on 08.10.1990 at Anupgarh to Dindigul and the consignment value being Rs.94,550/-. The appellant claimed compensation for damages to the consignment of 122 bags of gram booked on 08.10.1990 at Anupgarh to Dindigul and the consignment value being Rs.94,550/-. The appellant claimed Rs.17,902/- with future interest for the damages caused at 60% of 3,150 Kg and 25% of 3,000 Kg as per the joint survey report. After issue of notice, the appellant moved the Railway Claims Tribunal. The claim was resisted by the Railways as the claim has already been repudiated by its reply notice. The parties marked receipts and produced respective documentary evidence and the following five points were framed for consideration by the Tribunal: (i)Whether the damage was due to loading of already damaged goods and non-provision of standard size dunnage and non-compliance of prescribed packing conditions by the sender at the forwarding station? (ii)Whether the railways are not liable even as bailee under Section 99(1) of the Railways Act, 1989? (iii)Whether the railways used reasonable foresight and care in the carriage of the goods? (iv)Whether the applicant is entitled to any compensation and if so, how much? (v)What relief is the applicant entitled to? 8. On the first point, the Tribunal answered in affirmity, on the second point, the Tribunal held that there has been no delay in taking delivery, on the third and fourth points, the Tribunal recorded a finding that the claimant is entitled to damage and the damage is aggravated by delay in transit and fixed the same at 25%. The Tribunal though recorded a finding that the claimant has suffered a net damage to the value of Rs.18,431.43p, awarded Rs.4,476/- being 25% of the damages. Not being satisfied, the present appeal has been preferred by the claimant before the Tribunal. 9. The same learned counsel appearing for the appellants in all the three appeals and respondent advanced common arguments in all the three appeals. 10. It is fairly stated by the counsel on either side that there was definitely an inordinate delay in the transportation of the three consignments. There is no dispute about the value of damages suffered. But the Tribunal awarded damages by holding that the delay has aggravated the damages and awarded only a portion of the claim by its respective orders. 11. There is no dispute about the value of damages suffered. But the Tribunal awarded damages by holding that the delay has aggravated the damages and awarded only a portion of the claim by its respective orders. 11. According to the learned counsel appearing for the appellants, when the Railways have failed to produce the forwarding note, an adverse inference should be drawn against the Railways as the said forwarding note would show or would disclose the condition of goods at the time of entrustment. The delay is the reason for the damages suffered and it is the Railways which should be made liable to pay the entire damages suffered and there cannot be apportionment of damages on mere assumption that at the time of entrustment, the consignment was either defective or proper dunnage bags were not provided and other identical reasons. 12. According to the learned counsel, the very delay in the transportation, beyond the time normally taken for transportation from the place where the consignment was loaded and delivery thereof at the destination itself should have been the sole cause for the damages suffered and there is no material at all to show or establish that the goods consigned were defective or that there was inherent defect in the commodity or which developed due to moisture or other contents or weevil action appearing or insects found in some of the bags. 13. The learned counsel appearing for the appellants pointed out that in respect of the common order passed in O.A.Nos.679 and 688/92 in respect of the claim made by M/s.Kedarnath Brijlal, K.Sampath, J. (as he then was) has considered identical contentions in M/s.Kedarnath Brijlal Vs. The Union of India ( (2001) 1 MLJ 462 ) and sustained the identical contention advanced by the claimant while overruling the contentions advanced by the Railways. 14. The learned counsel also placed reliance upon the pronouncement of K.P.Sivasubramaniam, J., in C.M.A.No.578 of 1992 decided on 20.09.1999 and also another unreported judgment of D.Murugesan, J. in C.M.A.No.1275 of 1992 decided on 21.09.2000 in support of his contention. 15. Per contra, the counsel for the Railways contended that no interference is called for, as the Tribunal has rightly apportioned the damages and disallowed a portion of the claim made by the three appellants in their respective claim petitions. 15. Per contra, the counsel for the Railways contended that no interference is called for, as the Tribunal has rightly apportioned the damages and disallowed a portion of the claim made by the three appellants in their respective claim petitions. According to the Standing Counsel for the Railways, no interference is called for in these three appeals. In all the three appeals, the common points arise for consideration and they could be considered together. The points that arise for consideration are: (i)Whether the Railway Claims Tribunal erred in law in attributing contribution negligence on the part of the appellants by entrustment of inherently defective consignment of goods on the facts of the case? (ii)Whether the Tribunal below erred in law and acted with illegality in assuming that the consignment booked is defective despite non-production of forwarding note or railway receipt and when no adverse remark has been made at the time of booking on the forwarding note/railway receipt? (iii)Whether the respondent Railways have proved that it has used all reasonable foresight and care in the carriage of goods? (iv)Whether the inordinate delay in transit of the consignment as against the normal period of 15 days is a prima facie proof of negligence on the part of the Railways in the absence of any material placed by Railways? (v)Whether weevil action of the consignment of food grains is due to the delay in transit or whether they are inherent which alone is the sole cause for the damage to the consignment? (vi)Whether the claimants are entitled to compensation as claimed in each case and whether the apportionment of the damages on the facts of the case is permissible in law? (vii)Whether in the absence of remarks as to the defect or damages or condition of the consignment at the time of booking in the forwarding note, any adverse inference could be drawn under Section 98 of the Railways Act? 16. The above common points arise in all the three appeals. Accordingly, all the appeals could be considered together. The points are being considered together as they are interconnected. 17. There is no dispute that the appellant in each of the appeal is the purchaser of the consignment of wheat/gram and the consignment was booked under railway receipt as seen from the railway receipts. Accordingly, all the appeals could be considered together. The points are being considered together as they are interconnected. 17. There is no dispute that the appellant in each of the appeal is the purchaser of the consignment of wheat/gram and the consignment was booked under railway receipt as seen from the railway receipts. Further, there is no dispute that on arrival of the consignment at the destination, the consignment was found damaged. As seen from the joint survey report, after examination of the consignment, the contents were found damaged by insects, portion of the grains were having holes and powder was pouring from the holes and damage has been assessed as seen from the inspection report. It is also not in dispute that a notice under Section 106 of the Railways Act was issued and the claim has been repudiated by the Railways. In all the three cases, only documentary evidence and no oral evidence has been let in. 18. There is no dispute as to the claim of the title of the claimants/appellants in all the three cases and the claimants have taken delivery of the consignment at the destination point and joint survey report also has been prepared and issued to the claimants. The quantum or percentage of damages has been assessed or the quantum of loss is not in dispute. 19. It is the main contention of the appellant that consignment was damaged due to gross negligence and misconduct on the part of the Railway administration and its employees and also due to defective wagon and moderate delay in transit. The Railways took the stand that the consignment was not entrusted in a sound condition for carriage and the claimant has not proved the actual condition of the goods for carriage at the forwarding station. It is the further case of the Railways that the consignment was directly loaded from truck to wagon and the Railway staff are not aware of the actual condition of the consignments. 20. It is pointed out by the Railways that the Railway staff has issued a qualified railway receipt with the following remarks: "i. direct loading ii. packing mouth not rolled properly iii. sewing weak and iv. contents dropping" 21. Heavily relying upon the said remarks, the Railways sought to non-suit the claimants and contended that they are absolved of their liability. It is pointed out by the Railways that the Railway staff has issued a qualified railway receipt with the following remarks: "i. direct loading ii. packing mouth not rolled properly iii. sewing weak and iv. contents dropping" 21. Heavily relying upon the said remarks, the Railways sought to non-suit the claimants and contended that they are absolved of their liability. It is the further contention of the Railways that the consignment was carried to the destination in a thorough wagon with due care and caution and delivered at the destination as detained for carriage and damages if any, is due to loading of the consignment of goods already damaged at the forwarding station itself and it is an inherent defect of the commodity, for which the Railways are not liable. 22. In all the three appeals, it is being pointed out that normal time to deliver the consignment from the forwarding station to the destination point will not exceed 15 days while the Railways have taken more than two months in addition to normal period in each case, which delay has not been explained. There is a delay of more than two months in addition to normal transit time of 15 days. It is rightly pointed out by the counsel for the appellants that such a delay of two months and above was the reason for weevil action in the consignment of grains. 23. The learned counsel appearing for the appellants also contended that there was no adverse remarks in the railway receipts with respect to the contents of the consignment. The learned counsel for the appellants/claimants further pointed out that the failure to produce the forwarding note to prove remarks if any made in the railway receipts, would show that the goods were not defective in any manner. There is force and merit in the contention advanced by the counsel for the appellants. 24. One another contention advanced by the counsel for the appellants is that under Section 95 (g) of the Railways Act, the burden is on the Railways to prove that it has taken reasonable foresight and care in the carriage of the goods and when no evidence or material has been placed, adverse inference should have been drawn against the Railways by the Tribunal below. 25. The railway receipt Ex.B1, would show that the bags were directly loaded into the wagons. 25. The railway receipt Ex.B1, would show that the bags were directly loaded into the wagons. The bagging mouth was not rolled properly. In other words, it is rough rolling of the mouth while sewing the bags. Being a gunny bag, consequent to the sewing, there would be normal dropping of contents, if the bag is subject to pressure. But in these cases, it is not mere loss of weight alone but it is the damage suffered by the delay in transit by the unduly long delay. In view of the delay in transit, it cannot be possibly contended by the Railways that delay is not the cause for damage nor it could be suggested that on account of inherent vice of the commodity, the grains suffered damages. No evidence has been let in by the Railways to show that Nikolo Wagon was not interfered in any manner during transit. 26. It is rightly pointed out by the counsel for the appellants that D-Message marked as one of the exhibits by the Railways would show that it was not a Nikolo wagon and seals were broken. This is an important feature which the Tribunal below lost sight of. However, the Tribunal proceeded as if there was no proper application of mind by the Railway staff at the forwarding station in making the remarks on the railway receipts. This is a special pleading by the Tribunal for the Railways and this will not absolve the Railways from its liability to prove that it has taken all reasonable care in the carriage of goods. 27. The Railway Claims Tribunal also pointed that the Railways failed to produce the forwarding note, which is the basic and important document and based upon it, the railway staff at the forwarding station have to prepare the railway receipt. In this respect, no explanation has been attempted by the respondent Railways for the non-production of the forwarding note. The Tribunal below to a larger extent, commented against the Railways for the non-production of forwarding note and proceeded a step further in drawing adverse inference in this respect while pointing out that on the railway receipts standard rubber stamp seal alone has been affixed. As standard rubber stamp seal has been affixed on the railway receipts, it has been rightly pointed out by the Tribunal that no importance could be attached to such remarks. As standard rubber stamp seal has been affixed on the railway receipts, it has been rightly pointed out by the Tribunal that no importance could be attached to such remarks. Having held so, the Tribunal below as has been rightly contended by the counsel for the appellants, should have recorded a finding that the Railways were negligent and their negligence is the direct cause for the damages and more so, the inordinate delay in transit has not even been explained. 28. The Tribunal also pointed out that D-Message marked by the Railways is its document which discloses that the wagon was not a Nikolo wagon and one side seal of the forwarding station was found in broken condition and on the other side, illegible tap seal was noticed. In Ex.B1, railway receipt, there is no adverse remark with respect to the consignment which would mean that consignment at the time of entrustment was in a sound condition. Even assuming for the purpose of argument that weevil action might have occurred consequent due to inordinate delay in transit, the delay is several times more than the normal days of transit from the point of loading to the destination point. The natural deterioration or wastage in the present case is attributed directly to the delay in transit. 29. It is true that in terms of Section 93 (g) Railways are exonerated of its liability, if the goods deteriorate due to natural causes or it is inherent in the goods consigned. Only weevil action due to inherent defect could appear, if the goods even delivered within reasonable time from the point of despatch to the point of destination. But the Railways have taken several times than that of normal transit period. Naturally, the weevil action arise as the consignment is grain. For weevil action, delay on the part of the Railways alone is attributable. There is force in this contention and it deserves to be sustained. If the goods have been delivered within the reasonable transit time, then the Railways would be absolved of its liability for the weevil action and not when the delay is inordinate and the delay has been caused by the Railways in transit. 30. There is force in this contention and it deserves to be sustained. If the goods have been delivered within the reasonable transit time, then the Railways would be absolved of its liability for the weevil action and not when the delay is inordinate and the delay has been caused by the Railways in transit. 30. It is admitted that in each case, the transit time may be around 15 days but in addition to the normal period of 15 days, the Railways have taken more than two months transit time in delivering the consignment at the destination. This delay definitely results in weevil action and for this, the Railways cannot avoid its liability by relying upon Section 95 of the Railways Act. The reliance placed upon Section 95 and the interpretation placed on Section 95 of the Railways Act, in our considered view cannot be sustained. 31. In terms of Section 95, the 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. 32. The delay in the present case cannot be held to be reasonable and the claimants have substantiated that the damages resulted to the consignment due to the inordinate delay of the Railways. Normal or the usual time is the test or criteria to be taken into consideration to find out the transit time of the goods to apply the rule of statutory transmission. The delay not being reasonable and being unreasonable, on the facts of these three appeals, it amounts to negligence and it indicates not only omission but also misconduct or negligence on the part of Railways. The delay in transit as has already been pointed out is the direct cause for the damages caused to the consignment. The delay in this case, on the facts has resulted in damage to the consignment and the Railways cannot avoid its liability as it has failed to prove that the delay or deterioration arose dehorse the negligence on the part of the Railways or its servants. 33. The delay in this case, on the facts has resulted in damage to the consignment and the Railways cannot avoid its liability as it has failed to prove that the delay or deterioration arose dehorse the negligence on the part of the Railways or its servants. 33. Section 95 does not mean that there could be delay for an inordinate or indefinite period and for such inordinate or indefinite period, the Railways are exonerated of their liability and such is not the intentment of Section 95. That apart, the burden is on the Railways to prove that the delay is beyond its control or the delay was not caused by the negligence or misconduct on the part of its servants. There is no attempt on the part of the Railways in this respect to prove that there was no negligence or misconduct on their part. The Tribunal has also not given such a finding on the facts of the case nor such a case has been pleaded by the Railways. Therefore, reliance placed upon Section 95 cannot be sustained. 34. The reliance placed on Section 93 (g) also cannot be sustained on the facts of the case. The Tribunal had come to the conclusion that the weevil action could be attributed to inherent defect of the consignment and in that view, despite taking into consideration of the inordinate delay, the Tribunal had taken the view that the loss had to be shared between the claimants and the Railways. In that view, the Tribunal has proceeded as if the consignment or grains even at the time of entrustment is either defective or damaged but there is no such proof or evidence in this respect. On the other hand as has been rightly pointed out, the delay in the transit is not at all been explained nor there is an attempt to explain the delay nor the Respondent Railways could bring it under Section 95 of the Act. There is a failure on the part of the Railways to explain the delay. 35. That apart, the forwarding note also has not been produced by the Railways. The cumulative effect of the above would be the Railways had not used the reasonable foresight and care in the carriage of goods. There is a failure on the part of the Railways to explain the delay. 35. That apart, the forwarding note also has not been produced by the Railways. The cumulative effect of the above would be the Railways had not used the reasonable foresight and care in the carriage of goods. The wagon was not intact and there is every reason to hold that there was transshipment for no valid reason, though it was booked by closed wagon what was the condition of the goods at the transshipment also has not been disclosed. D-Message speaks volumes against the Railways. 36. Section 98 (1) (a) of the Railways Act prescribes that the Railways have to record on the forwarding note the facts and the condition of the goods. Section 98 (1) (a) mandates that notwithstanding anything contained in Chapter XI of the Railways Act, when goods are entrusted to Railway administration by carriage and if they are in defective condition as a consequence of which, they are liable to damage, deterioration, leakage or wastage or either defectively packed, or not packed in such manner as may be prescribed and as a result of such defective or improper packing, the goods are liable to damage, suffer deterioration, leakage or wastage. The same has to be recorded by the consignor or his agent in the forwarding note. It is obligatory to record the condition in which the goods have been entrusted and if the condition is not noted or recorded in the forwarding note, then it is not open to the Railways to even suggest that the goods were in defective condition or defectively packed. The non-production of the forwarding note has to be viewed seriously and adversely against the Railways. 37. The burden is on the Railways to prove that it has used reasonable foresight and care in the carriage of goods under Section 98 (1) (a) of the Railways Act. When the goods are entrusted to the Railway administration for carriage, even if the goods possess inherent defective quality, as a consequence of which they are liable to damage, deterioration, leakage or wastage or the goods are either defectively packed or not packed in the manner prescribed. 38. In all these cases, forwarding note has not been produced by the Railways. On the facts in all the three cases, there has been inordinate delay in transporting the goods. 38. In all these cases, forwarding note has not been produced by the Railways. On the facts in all the three cases, there has been inordinate delay in transporting the goods. Absolutely, there is no indication as to the condition of the goods either on the date of entrustment or during transshipment or during transit. The Tribunal had proceeded on the assumption that the grams have inherent defect and therefore they naturally got decayed or weevil action set in. But if there is inordinate delay in transit and for an undue long period and when there is no evidence to show that the Railways have acted with due care and taken all the precautions and that the forwarding note has not been produced, we have to draw an adverse inference and proceed as it is silent about the condition of the goods. Therefore, it follows that the Tribunal was in error in apportioning the liability. On the other hand, the Tribunal should have fastened the entire liability on the respondent Railways. 39. The attention of this Court is drawn to the pronouncement of K.P.Sivasubramaniam, J., in C.M.A.No.578 of 1992 dated 20.09.1999 as well as the judgment of K.Sampath, J. (as he then was) in 2001 1 MLJ 462 (cited supra). We are in respectful agreement with the view taken by the Honourable Judges. 40. In the light of the above discussions, we hold that the apportionment of damages is not called for and it is not permissible in law and in particular on the facts of the case as well. All the above points are answered in favour of the claimants/appellants. 41. In the circumstances, we modify the orders of the Tribunal below and as there is no dispute as to the quantum and value of damages suffered, we allow all the three claims as prayed for by the appellants in their respective claim petitions with full costs. The appeals are allowed but with a direction that the parties shall bear their respective costs in these appeals. 42. In the result, (i) in C.M.A.No.1596 of 1995, we award a total compensation of Rs.10,110/- with 12% interest per annum from the date of application till realisation with proportionate cost. The appeals are allowed but with a direction that the parties shall bear their respective costs in these appeals. 42. In the result, (i) in C.M.A.No.1596 of 1995, we award a total compensation of Rs.10,110/- with 12% interest per annum from the date of application till realisation with proportionate cost. (ii) in C.M.A.No.1597 of 1995, we allow the claim of the appellant and direct payment of a sum of Rs.15,441/- with 12% interest from the date of application till realisation with proportionate cost, and (iii) in C.M.A.No.1598 of 1995, we allow the claim of the appellant and direct payment of a sum of Rs.17,902/- with 12% interest from the date of application till realisation with proportionate cost.