Judgment BANERJEE, J. 1. BHARAT Petroleum Corporation Ltd. (hereinafter referred to as B.P.C.L.) was a consignee in respect of a Railway Invoice for carriage of high speed diesel through North Frontier Railway. The consignment was booked Ex. B.R.P.L. on Railway to Dalgaon on North Frontier Railway. It was alleged that due to negligence and misconduct on the part of the Railway the consignee did not get delivery of the consignment. Hence, the consignee became entitled to the value of the goods aggregating to rupees twenty-two lakhs three thousand two hundred and fifty-eight only. B.P.C.L. filed the claim before the Railway Claims Tribunal. They contended that the consignment was booked to be delivered at Dalgaon. The Railway failed to deliver seven tank wagons, thus, gave rise to the claim made by B.P.C.L. B.P.C.L. duly served notice under Section 106 of the Railway Act but of no avail. Hence, the claim made before the Tribunal. Railways filed written reply before the Tribunal. The Railway claimed that the case was bad for non-joinder of necessary party. According to Railway, the consignment were booked from B.R.P.L. private siding. The consignment could not be delivered because of derailment of the wagons. From the accident report it transpired that the accident had occurred due to improper maintenance of track being the responsibility of the owner of the private siding being the Bongaigaon Refinery and Petrochemical Ltd. (hereinafter referred to B.R.P.L.). Pertinent to note, North Frontier Railway entered into a private siding agreement with B.R.P.L. As per Clause 13 and 14, ordinary maintenance of track would be done by the Railway Administration at the cost of the applicant being B.R.P.L. As per Clause 14, the applicant would have to pay annual maintenance charges at the rate prescribed thereunder. The applicant would however be at liberty to maintain at its cost and expenses in respect of the portion for which supervision cost and/or maintenance cost to be born by the applicant. On a combined reading of Clause 13 and 14, it would appear that the private siding would be maintained by the Railway at the cost of B.R.P.L. would also be at liberty to maintain it by itself. Fact remains, the maintenance of track was the responsibility of B.R.P.L. The Railway, contended that B.R.P.L. did not pay the maintenance charges. Hence, the tracks were not maintained properly. Fact remains, the maintenance of track was the responsibility of B.R.P.L. The Railway, contended that B.R.P.L. did not pay the maintenance charges. Hence, the tracks were not maintained properly. The Railways relied on various correspondence disclosed before the Tribunal demanding maintenance charges from B.R.P.L. 2. THE Tribunal considered the rival contentions. The Tribunal held, it was open to the Railway authority to refuse loading and/or the unloading : at the private siding on the plea of non-payment of the maintenance charges. So long they did not do so and accepted consignment at the private siding they would be obliged to pay compensation. Being aggrieved, the Railways preferred the instant appeal that was heard by us on the above mentioned date. 3. WE heard Mr. Swapan Banerjee, learned Counsel appearing for the North Frontier Railway being ably assisted by Mr. Saptarshi Roy. We have also heard Mr. Rajendra Kumar Mittal, learned Counsel appearing for B.P.C.L. 4. MR. Banerjee drew our attention to the relevant provisions of the Railways Act, 1989. According to him, once the consignment was booked at the private siding and the accident occurred at the private siding the owner of the private siding was a necessary party. In its absence the case could not be considered by the Tribunal. On merits, Mr. Banerjee contended that the Railway was responsible for any loss or damage occurred on the Railway track within the control of the Railway. The accident, if any, occurred at the private siding not belonged to the Railway, would not give rise to any claim to be made against the Railway. He also relied upon the siding ; agreement to show that it was the duty and responsibility of the owner to maintain the track and such maintenance could be done by the Railway only upon payment of maintenance charges by the owner. He referred to series of letters from the paper book to show that despite reminders being given the B.R.C.L. failed and neglected to pay the maintenance charges. He prayed for setting aside of the judgment and order of the Tribunal. 5. PER contra, Mr. Mittal, learned Counsel appearing for the B.P.C.L. contended that once the Railway accepted consignment any loss during transit as also non-delivery would automatically give rise to a claim for damage and/or compensation. On the issue of non-joinder of parties, Mr. He prayed for setting aside of the judgment and order of the Tribunal. 5. PER contra, Mr. Mittal, learned Counsel appearing for the B.P.C.L. contended that once the Railway accepted consignment any loss during transit as also non-delivery would automatically give rise to a claim for damage and/or compensation. On the issue of non-joinder of parties, Mr. Mittal drew our attention to the relevant provisions of the statute to show that except the claimant and the Railway nobody could join as respondent in a Railway claim made under the Railways Act. Mr. Mittal relied on the five decisions of the different High Courts to show that the claim was maintainable. The decisions are in the case of Union of India and Anr. v. Radhakisan and Anr. reported in All India Reporter 1969 Bombay Page-7; Union of India v. Laduram Fakirchand reported in All India Reporter 1974 Calcutta Page-207; Union of India v. Roop Narayan reported in All India Reporter 1997 Rajasthan Page-123; Union of India v. Bharat Petroleum Corporation Ltd. reported in 2002 Volume-II Accident and Compensation Cases Page-411. He also referred to the decision of Delhi High Court in the case of Union of India v. Hindustan Petroleum Corporation Ltd. reported in 2005 Volume-II Transport and Accidents Cases Page-442 where compensation for damage during transit was held to be maintainable as per the provisions of Sections 93 and 94 of the said Act of 1989. 6. TO deal with the point in issue we wish to first consider the relevant provisions of this statute. Section 92 empowered the Central Government to make rules for chapter 10 relating to subject provisions as to the goods booked to notified stations. Section 93 would denote general responsibility of Railway administration indemnifying the Railway Administration from any claim due to act of God, act of war, act of public enemies, arrest, restraint, seizure under legal process, restrictions imposed by the Central or State, act of omission or negligence of the consignor or the consignee, natural deterioration due to inherent defect or quality of the goods, latent defects, fire explosion or any unforeseen risk. 7. SECTION 94 would provide the responsibility of the Railway for loading or unloading at a private siding hot belonged to them. 7. SECTION 94 would provide the responsibility of the Railway for loading or unloading at a private siding hot belonged to them. It provides, where the goods were loaded at a private siding not belonged to Railway, the railway would not be responsible for any loss, destruction or damage or deterioration until the wagon containing the goods was placed at a specified point of interchange of wagon between the private siding and Railway siding. Similar provision was made with regard to delivery at a private siding. Section 97 would denote goods carried at the owners' risk. Section 98 would provide for defective packing thus indemnifying the Railway Administration from any claim. Section 99 would make the Railway liable as a bailee while in transit Section 103 provides for appropriate damage and/or compensation. 8. ON a combined reading of the aforesaid provisions we are of the view that once the Railway accepts the goods as bailee under a consignment on the Railway siding and/or on the Railway track and/or at a premises under the control of the railway they would be responsible for safe delivery of the said goods up to the point of destination mentioned in the consignment i note subject however it must be a point at the control of the Railway Administration. In the instant case, admittedly, the consignment was booked and loaded at a private siding belonged to B.R.P.L. The accident admittedly occurred at the private siding. It is true that the Railway accepted the goods to be carried from the private siding, however the combined reading of the aforesaid provisions would rather indemnify them from any loss or damage occurred at the private siding. 9. IN the case of Radhakisan (supra), under the old Railway Act, the similar provisions as contained in Section 74(A) was considered by the learned single Judge. It was a case of damage to the goods because of shipage of water. The Railways contended that it was due to defective packing. The learned Judge considered the onus of the respective parties under Section 74(A) and 74(C). According to His Lordship, the Railway, to get the protection under Section 74(A), must show that the goods were liable to deterioration, leakage, wastage or damage in transit as a result of defective packing. In absence of such evidence, the Railway could not avoid their responsibility. 10. According to His Lordship, the Railway, to get the protection under Section 74(A), must show that the goods were liable to deterioration, leakage, wastage or damage in transit as a result of defective packing. In absence of such evidence, the Railway could not avoid their responsibility. 10. IN the case of Laduram Fakirchand (supra), the learned single Judge of our Court considered a similar provision under the old Act. The learned Judge held that the consignment note should have appropriate noting of defective or improper packing of goods. In absence of such endorsement, the Railway could not avoid their responsibility. 11. IN the case of Roop Narayan (supra), the learned single Judge of Rajasthan High Court held that the Railway receipt having endorsement of "said to contain" would help the Railway to avoid the responsibility. The learned Judge observed that the responsibility would depend upon the nothings on the forwarding note. 12. IN the case of B.P.C.L. (supra), the learned single Judge of Madhya Pradesh High Court rejected the contention of the Railway that defect was there at the loading point. His Lordship upheld the Tribunal's view that nobody had prevented the Railway from supervising or checking the loading. They had accepted weight as declared by the respondent and, thus, could not be allowed to adopt a double standard by observing that it was delivered short at the loading point even after charging freight for the entire consignment. 13. IN the case of H.P.C.L. (supra), the Apex Court considered the provisions of Sections 93 and 94 and ultimately held that there was no infirmity in the award. 14. ON a combined reading of the aforesaid decision cited at the Bar and on consideration of the provisions of the statute discussed hereinbefore, we are of the view that Tribunal erred in overlooking the fact that the accident had occurred at the private siding and the Railway could not be held responsible for any claim, at least under the Railway Act. It was a fit and proper case where B.P.C.L. should have approached the appropriate Civil Court making B.P.C.L. and Railway as party respondent under the common law to fix responsibility/The subject provisions for awarding of damage through a Tribunal constituted under the Railways Act, 1989 could not be taken recourse to in a case of the like nature. In our view, owner was a necessary party. In our view, owner was a necessary party. It is true that before the Railway Tribunal no one else except the consignee and the Railway could be made party. There is no scope for adding B.R.C.L. a party respondent. The proper course would have been, as observed by us hereinbefore, to approach the Civil Court under the common law making the Railway as well as B.R.C.L. as defendants. 15. THE appeal thus succeeds and is allowed. 16. THE judgment and order of the Tribunal is set aside. The appeal is disposed of without any order as to costs.