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2009 DIGILAW 598 (CAL)

Suresh Kumar Agarwal v. UNION OF INDIA

2009-08-06

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

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Judgment : ASHIM KUMAR BANERJEE, J. (1.) The appellant booked a consignment of six hundred bags of Flour on May 4/5, 2000 under Invoice No. 180/330477 ex. Varanasi to Chitpur. It further transpires from the record that the consignment was loaded in the railway wagon directly from the truck without having any supervision of the Railway Authorities. The wagon was also selected by the consignor himself. Normally from Varanasi to Chitpur a consignment was due to arrive within five days whereas it was delivered at the destination after forty five days as there had been inordinate delay in arrival of the wreck. At the destination the consignment was found to be in damaged condition. Survey was conducted which revealed that the Flour was packed in old and mutilated bags and out of six hundred bags, eighteen bags were found having mark of dry water at the bottom layer. Those eighteen bags were found at the middle of the wagon. The wagon was examined by the Railway Authorities. They did not find any apparent leakage. The appropriate authority certified the consignment not fit for human consumption but for cattle feeding. Appellant filed a claim which was contested by the Railways. The Railways, in their written statement denied their liability on the ground that they did not supervise at the loading point which would be apparent from the remark made on the Railway Receipt itself. It was further contended by the Railways that reasonable due care and caution was not taken by the consignor while loading the Consignment direct from truck to wagon without being supervised by the Railway Authorities. The Railways contended in their written statement that the claimant failed to establish disposal of the damaged stuff so collected by him at the destination point. Hence, it should be presumed that there was no damage to the Consignment at all. (2.) The Tribunal considered the rival contentions of the parties. The Tribunal held that since there had been inordinate delay in arrival of the wrecks possibility of damage caused to the Consignment which was perishable in nature, could not be brushed aside. At the same time, the Tribunal accepted the contention of the Railways that they did not have any opportunity at the loading point to supervise the loading and to verify the quality and quantity of the Consignment. At the same time, the Tribunal accepted the contention of the Railways that they did not have any opportunity at the loading point to supervise the loading and to verify the quality and quantity of the Consignment. Striking a balance, the Tribunal allowed fifty per cent damage to the Consignment less ten per cent being the estimated cost of disposal of the damaged consignment. The Tribunal awarded Rs. 2,14,900/-as compensation including Rs. 2,588/- towards refund of the application fee and Rs. 500/-towards cost of the litigation. Being aggrieved, the claimant filed the instant appeal which was heard by us on the above mentioned date. (3.) Mr. Shyamal Chakraborty, learned counsel appearing for the appellant contended that it was the duty and responsibility of the Railways to be satisfied about the quality and quantity of the goods at the loading point. The appellant did not obstruct and/or cause any hindrance to the Railways in supervising the loading. Hence, they could not avoid their responsibility at the unloading point when the goods admittedly arrived far beyond the scheduled date. He relied on the inspection report to show that the goods were not fit for human consumption. He contended that the Tribunal could not have denied compensation to the extent of fifty per cent. In support of his contention he relied on the following decisions:- i) The Bihar State Co-operative Marketing Union VS-Union of India and Others reported in All India Reporter, 1978, Patna, Page 213. ii) Sujan Mal Chowkchandji VS- Union of India and Others reported in 2001, Volume-III, Transport And Accidents Cases, Page 206. iii) Union of India Owning Southern Railway Rep. by its General Manager, Madras VS-M/s. Shri Ganeshar Traders reported in 2001, Volume-II, Transport And Accident Cases, Page 203. iv) Jugal Kishore Naresh Kumar VS- Union of India reported in 2001, Volume-III, Transport Accident Cases, Page 39. v) General Manager, Southern Railway VS- Agarwal Traders reported in 2003, Volume-II, Transport Accident Cases, Page 361. Opposing the appeal Mr. Asit Kumar Banerjee, learned advocate appearing for the Railways contended that once the Consignment was not booked with the Railways following the usual procedure, the Railways could not be foisted with the liability on account of alleged damage. Mr. v) General Manager, Southern Railway VS- Agarwal Traders reported in 2003, Volume-II, Transport Accident Cases, Page 361. Opposing the appeal Mr. Asit Kumar Banerjee, learned advocate appearing for the Railways contended that once the Consignment was not booked with the Railways following the usual procedure, the Railways could not be foisted with the liability on account of alleged damage. Mr. Banerjee further contended that the Consignor would be responsible for the correctness of the particulars furnished by him in the forwarding note and would indemnify the Railway Administration against any damage suffered by it by reason of any incorrectness. He further contended that when the Consignment was not checked by a railway servant and such fact was recorded on the Railway Receipt, the burden of proof would lie on the Consignor and/or consignee as the case may be. In the instant case, the Railway Receipt would depict that there was no supervision by the Railways at the loading point. Hence, it was the duty of the appellant to prove that the Consignment was in good condition and damage was caused in transit. The appellant miserably failed on that count. He prayed for dismissal of the appeal. (4.) We have considered the rival contentions. We have carefully perused the judgment and order impugned in the appeal. We have also perused the decisions cited at the Bar and the relevant law on the subject. (5.) Mr. Chakraborty relied on Sections 93 and 110 of the Railways Act, 1989 (hereinafter referred to as the said Act of 1989) whereas Mr. Banerjee relied on Sections 64, 65 and 102 of the said Act of 1989. Section 64, inter alia, provides for preparation of the forwarding note whereas Section 65 talks about issuance of the Railway Receipt. On a combined reading of the said two provisions it appears that the consignor is responsible for providing the particulars of the consignment stated in the forwarding note and upon receipt of the consignment the Railways is obliged to issue appropriate receipt called Railway Receipt which is prima facie, evidence of weight and the packages stated therein. On a combined reading of the said two provisions it appears that the consignor is responsible for providing the particulars of the consignment stated in the forwarding note and upon receipt of the consignment the Railways is obliged to issue appropriate receipt called Railway Receipt which is prima facie, evidence of weight and the packages stated therein. Proviso to Section 65 however deals with a situation where the weight or the number of packages is not checked by a railway Servant and in such situation the onus is on the claimant to prove the number of packets or the weight as disclosed by them in the forwarding note and featured in the Railway Receipt. Section 93 talks about the general responsibility of the Railway Administration in carrying the Consignment. It indemnifies the Railways from any loss, destruction, damage or deterioration in transit because of act of God or war or public enemies or other unforeseen circumstances as scheduled in the said Section. Section 102 exonerates the Railways from its liability when the description is incorrect or a fraud is committed by the consignor or the consignee or when it is proved by the Railway Administration that the damage has been caused due to improper loading or unloading by the consignor or the consignee. Section 110 puts the onus on the claimant to prove that he has sustained monetary loss because of alleged damage or deterioration. (6.) In the instant case, the Railway Receipt would depict that the goods were loaded by the consignor directly from the truck to wagon. The wagon was chosen by him. The loading was also done in absence of the Railway officials. There had been no shortage of Consignment as we find from the inspection note. Hence, there could be no claim on account of short delivery. With regard to the condition of the Consignment in absence of any proof that the goods were fit for human consumption at the loading point it would be difficult to come to a definite conclusion that damage had been caused in transit. (7.) In the case of the Bihar State Co-operative Marketing Union versus Union of India and Others (Supra), the Division Bench of the Patna High Court held that the Railway would have to prove that the Consignment was defective at the loading point. (7.) In the case of the Bihar State Co-operative Marketing Union versus Union of India and Others (Supra), the Division Bench of the Patna High Court held that the Railway would have to prove that the Consignment was defective at the loading point. The Division Bench also observed that it was the responsibility of the Railways to check up as to in which condition the goods had been entrusted to it. It is, however, significant to note that the judgment is silent as to whether any specific remark was made on the Railway Receipt as was done in the case before us. In the case of Sujan Mal Chowkchandji versus Union of India and Others (Supra), the learned single Judge of the Madhya Pradesh High Court relying on the damage certificate issued by the Railways to the extent that there had been deterioration in the quality of wheat observed that such deterioration must have been caused because of unusual delay in transit. (8.) In the case of Union of India Owning Southern Railway Rep. by its General Manager, Madras versus M/s. Shri Ganeshar Traders (Supra) the learned single Judge of the Madras High Court held that when the goods were loaded in good condition the Railways could not avoid their liability if any damage was caused to the consignment. (9.) In the case of Jugal Kishore Naresh Kumar versus Union of India (Supra), the learned single Judge of the Madras High Court considering the facts of the case so proved in evidence observed that the delay in taking delivery was on account of the fact that the survey was not done immediately. The Tribunal also gave the benefit of doubt to the consignor and held that the bags were not damaged at the time of loading. After observing, as such, the learned Judge allowed the claim petition by holding that the Railway did not establish that the packing was defective at the loading point. (10.) In the case of General Manager, Southern Railway versus Agarwal Traders (Supra), the Consignment was delivered much beyond the scheduled date and that too in driblets. The Railway admitted the damage and took the shelter under Section 73 of the Railways Act, 1890 which is pari materia with Section 93 of the new Act of 1989. (10.) In the case of General Manager, Southern Railway versus Agarwal Traders (Supra), the Consignment was delivered much beyond the scheduled date and that too in driblets. The Railway admitted the damage and took the shelter under Section 73 of the Railways Act, 1890 which is pari materia with Section 93 of the new Act of 1989. The Railway contended that it was an act of God and damage was caused despite due care taken by the Railways. Considering such fact the Single Bench of Karnataka High Court allowed the claim to the extent of ninety eight per cent after holding that the Railways failed to prove that it had taken reasonable care and foresight in carriage of goods. (11.) On a sum total of the precedents it appears to us that once the goods were booked in transit at the loading point it was the duty of the Railways to be satisfied with the quality and quantity of the Consignment provided it was not booked at the owners risk. When the owner himself takes the burden of loading the goods and that too in a wagon selected by him without any supervision of any Railway official Railway would have no responsibility. The Railway Receipt in our case made it clear that there was no supervision at the loading point. The claimant could have objected to such remark being endorsed on the Railway Receipt. They could have insisted on a physical inspection at the loading point. They did not do so. Fortunately at the destination point there had been no shortage. The claim was made on account of damage caused to the consignment. Claimant in support of his claim relied on an inspection report which itself would reveal that the consignment was packed in used and torn bags and no due care and caution was taken by the consignor at the loading point. (12.) When a party relies on a document he would have to take the responsibility of the entire contents. The claim of the appellant was based upon the inspection report which itself would reveal that the Consignment was not packed with due care. It is true that the Consignment arrived at a much belated stage and the chance of deterioration of the Consignment which was perishable in nature could not be brushed aside. The claim of the appellant was based upon the inspection report which itself would reveal that the Consignment was not packed with due care. It is true that the Consignment arrived at a much belated stage and the chance of deterioration of the Consignment which was perishable in nature could not be brushed aside. The Tribunal relying on the said report awarded fifty per cent compensation after giving ten per cent salvage. In our view, the judgment and order of the Tribunal does not deserve any interference at our end. The appeal fails and, is, hereby dismissed. (13.) There would be no order as to costs. Urgent xerox certified copy would be given to the parties, if applied for.