JUDGMENT & ORDER : Heard Ms. B. Devi, learned counsel for the appellant/Railways and also heard Ms. M. Sarma, learned counsel appearing for the respondent/claimant. 1. This is an appeal under section 23 of the Railway Claims Tribunal Act, 1987 directed against the judgment and order dated 05.02.2007 of the Railways Claims Tribunal, Guwahati Bench, Guwahati passed in Case No. OA/268/2006, wherein, the learned Tribunal had directed the appellant to pay the respondent/claimant a compensation of a sum of Rs. 23,71,167/-, as the costs of his goods not delivered, and a sum of Rs. 10,666/- towards freight charges paid by him and a sum of Rs. 18,167/- as miscellaneous expenses. 2. The facts and circumstances leading to this appeal are as follows:- The respondent/claimant M/S Ganapati Service hired on lease basis one SLR of 5959 UP Kamrup Express having a capacity of carrying goods to the tune of 4 tonnes for carrying goods from Howrah to Guwahati for a period of 3 years i.e. on 16/12/2003 to 15/12/2006, from the appellant for a consideration of Rs. 8001/- per trip, under the lease agreement signed on 16/12/2003. During the lease period, on 28.12.2005, the respondent/claimant loaded 30 packages of readymade garments, weighing 1800 kg, valued at Rs. 17,91,459/-, 20 packages of stationery goods weighing 1000 kg, valued at Rs. 50,200/-, one package of machinery spare parts weighing 120 Kg, valued at Rs. 18,500/-, 30 packages of electronic goods weighing 600 Kg, valued at Rs. 2,28,989/- and 7 packages of foot wears weighing 350 Kg, valued at Rs. 2,82,024/- on the SLR hired on lease by him at Howrah for transferring it to Guwahati. When the train arrived at Guwahati on 29.12.2005, the respondent/claimant along with Railway staffs tried to open the doors of the SLR to unload the goods but due to mechanical defect the doors could not be opened. Therefore, the goods contained in the SLR could not be unloaded. Since, the time for onward journey arrived the train left for Dibrugarh without unloading the goods belonging to the respondent/claimant. The Railway officials were informed on the same day and the Railway authority issued a memo directing the Engineering staff to attain to the problem and do the needful on arrival of the same SLR at Guwahati on its return from Dibrugarh. The Railway officials were informed on the same day and the Railway authority issued a memo directing the Engineering staff to attain to the problem and do the needful on arrival of the same SLR at Guwahati on its return from Dibrugarh. It was also directed that the SLR should be detached at Guwahati in case, the doors cannot be opened. After few days, the respondent/claimant was informed that his goods got burned when the SLR caught fire at Dibrugarh while the Railway staff tried to open the doors with gas cutter. On 14.01.2006, through a letter the respondent/claimant claimed compensation from the appellant/railway. In reply, the respondent N.F Railway vide their letter dated 23.01.2006 demanded the relevant documents from the respondent/claimant. Accordingly, the respondent/claimant submitted all the documents vide his letter dated 23.01.2006. Through, several letters, the respondent/claimant asked the Railway authority/appellant to deliver his goods but the appellant/Railways authority did not or could not deliver the goods. Therefore, the respondent/claimant, on 30.01.2006, sent another letter to the General Manager, N.F. Railway at Guwahati, enclosing all the relevant documents and asked him to deliver his goods or pay the compensation for the same. After all these did not bear any fruit, the respondent/claimant filed an application before the Railway Claims Tribunal, Guwahati Bench praying for granting of compensation to the tune of Rs. 24,00,000/- along with interest @ 15% p.a and a sum of Rs. 14,510/- as application fees and a sum of Rs. 1,25,000/- as Advocate fees. The learned Railway Claims Tribunal issued notice to the appellant/respondent, the appellant/respondent appeared and contested the claim. After giving a chance of being heard to the parties and after examining the available documents and evidence given by the parties, the learned Tribunal passed, the impugned judgment and order wherein it was directed that appellant/Railways to pay the respondent/claimant a sum of Rs. 24,00,000/- (Rupees Twenty-four Lakhs) only, along with interest @ 7% from the date of filing of the application i.e. 05.05.2006, within sixty days failing which to pay interest @ 9% p.a. and also directed to pay a sum of Rs. 20,000/- as cost. 3. Aggrieved, the appellant/respondent has come to this Court on appeal as stated above. 24,00,000/- (Rupees Twenty-four Lakhs) only, along with interest @ 7% from the date of filing of the application i.e. 05.05.2006, within sixty days failing which to pay interest @ 9% p.a. and also directed to pay a sum of Rs. 20,000/- as cost. 3. Aggrieved, the appellant/respondent has come to this Court on appeal as stated above. The grounds on which the impugned judgment has been assailed are that the Tribunal while passing the same has failed to take into consideration; i. Clause-2 of the lease agreement signed by both the parties wherein, it was specifically mentioned that the respondent was to handle the consignment himself which include loading of the consignment, putting of his own labels on the consignment, pad locking of the doors of the SLR, opening of the doors of the SLR at the destination and to ensure safe delivery of the goods. ii. that it was the duty and responsibility of the respondent/claimant to unload the goods at the destination without delay as per the scheduled time as the SLR was locked by himself, therefore, Railways was not at fault when the respondent cannot opened the doors of the SLR. iii. that the respondent having practical knowledge about the use of SLR had himself chosen the particular SLR, therefore, the Railway cannot be responsible when anything had happened on the SLR. iv. that the Railway administrations had asked the respondent to take the delivery of the goods but the same was denied by the respondent/claimant. v. that the SLR along with the consignment reached the destination without any further delay and the same was opened as per the request of the respondent, as such, finding of the learned Tribunal that the provision of the section 93 of the Railways Act was violated by the Railway is erroneous. vi. that the quantum of compensation arrived at by the learned Tribunal is erroneous, inasmuch as, as per the terms and conditions of the agreement the respondent at best can be entitled only to a compensation @ Rs. 50 per Kg. Lastly, that the learned Tribunal without any material evidence arrived at the finding that the respondent is entitled to a sum Rs. 24,00,000/- as compensation. 4. Supporting the grounds raised by the appellant, the learned counsel, Ms. 50 per Kg. Lastly, that the learned Tribunal without any material evidence arrived at the finding that the respondent is entitled to a sum Rs. 24,00,000/- as compensation. 4. Supporting the grounds raised by the appellant, the learned counsel, Ms. B. Devi submitted that contains of the Clause-2, 3, 4 and 5 of the lease agreement dated 16.12.2003 agreed by both the parties makes it clear that the goods were booked under the remarks “said to contain” and the respondent/claimant is responsible for the safe transportation of the goods. Therefore, the appellant/Railways cannot be held responsible for any lost that may have occurred to the respondent/claimant’s goods. The relevant Clause of the lease agreement referred by the learned counsel are given herein below:- 1. The lessee can be any person or agency appointed for the purpose. 2. The lessee shall do the handling of consignments himself like collection of parcels, packages etc. from the parties and arrange to dispatch the same by loading parcels, packages etc. from the parties and arrange to dispatch the same by loading in leased Brake Van of nominated trains at originating point. At destination/intermediate station the lease shall unload and deliver the parcels, packages etc. to the consignee, Lessee will put his own labels/identification mark to differentiate packages holding on his account. 3. The Lessee shall carry parcel and packages etc. at his own risk and responsibility. He shall be responsible for loss and damage to parcel and packages for any act of omission on his part or his representative will have to indemnify the leaser. 4. Railway receipt will not be issued by the Railway in respect of number of packages loaded in Brake Van, but it will be issued on ‘Said to contain” basis and the Brake Van will be sealed and pad locked by the lessee and also by the Railway. The Railway liability will be limited to safe transfer of the Brake Van with Railway seal intact over the Railway portion only. 5. No check of prescribed packing condition will be made by the Railway staff at the time of loading which will be sole responsibility of the Lessee. Any damages due to packing conditions or mutilations due to transit shall be responsibility of the Lessee. No claim shall be entertained by the Railway for any loss/damage/destruction or deterioration in transit found in seal intact Brake Van”. 5. Any damages due to packing conditions or mutilations due to transit shall be responsibility of the Lessee. No claim shall be entertained by the Railway for any loss/damage/destruction or deterioration in transit found in seal intact Brake Van”. 5. The learned counsel further submitted that under the lease agreement Clause-27 (vi) the appellant/Railways shall not be responsible for any loss, destruction, damage, deterioration or non-delivery of goods arising from fire, explosion or any unforeseen risk. Therefore, the appellant/Railways is protected by this clause of lease agreement and also section 93(i) of the Railways Act, 1989. The learned counsel referred to the lease agreement, clause and the provision of section 93 of the Railways Act, 1989. The same are reproduced herein below;- “27. Leaser shall not be responsible for any loss, destruction, damage, deterioration or non-delivery of goods arising from the following causes;- (i) act of God (ii) net of war (iii) act of Public enemies (iv) Arrest restraint or seizure under legal process (v) orders or restrictions imposed by Central Govt. or State Govt. or by any Officer or authority subordinate to the Central Govt. or a State Govt. authorised in this behalf (vi) fire, explosion or any unforeseen risk (vii) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of goods (viii) latent defect (ix) Act or omission or negligence of the Lessee”. The contain of Section 93 of the Railways Act reads as follows:- “93. or a State Govt. authorised in this behalf (vi) fire, explosion or any unforeseen risk (vii) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of goods (viii) latent defect (ix) Act or omission or negligence of the Lessee”. The contain of Section 93 of the Railways Act reads as follows:- “93. General responsibility of a railway administration as carrier of goods.- Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage or deterioration in transit, or non-delivery of any consignment, arising from any cause except the following, namely:- (a) act of God; (b) act of war; (c) act of public enemies; (d) arrest, restraint or seizure under legal process; (e) orders or restrictions imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorised by it in this behalf; (f) act or omission or negligence of the consignor or the consignee or the endorse or the agent or servant of the consignor or the consignee or the endorsee; (g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods; (h) latent defects; (i) Fire, explosion or any unforeseen risk; Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid causes, 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.” 6. Thereafter, the learned counsel also submitted that in the application of the respondent/claimant there is no allegation that the appellant/Railways have not taken proper care or did not discharge their duties as required under the agreement. 7. The learned counsel further submitted that the goods were carried under the owner’s risk and there was no proof of negligence on the part of the appellant/Railways. Therefore, the appellant/Railways is not liable as per the provision of section 97 of the Railways Act. Section 97 of the Railways Act are given herein below:- “97. 7. The learned counsel further submitted that the goods were carried under the owner’s risk and there was no proof of negligence on the part of the appellant/Railways. Therefore, the appellant/Railways is not liable as per the provision of section 97 of the Railways Act. Section 97 of the Railways Act are given herein below:- “97. Goods carried at owner’s risk rate.- Notwithstanding anything contained in the Section 93, a railway administration shall not be responsible for any loss, damage, deterioration or non-delivery in transit, of any consignment carried at owner’s risk rate, from whatever cause arising, except upon proof, that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on its part or on the part of any of its servants; Provided that- (a) Where the whole of such consignment or the whole or any package forming part of such consignment is not delivered to the consignee or the endorsee and such non-delivery is not proved by the railway administration to have been due to fire or to any accident to the train; or (b) where in respect of any such consignment or of any package forming part of such consignment which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of that consignment or package had been pilfered in transit, the railway administration shall be bound to disclose to the consignor, the consignee or the endorsee how the consignment or the package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or of any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor, the consignee or the endorsee.” 8. Lastly, the learned counsel submitted that the appellant/Railways had fulfilled their part of the contract agreement as per section 151 of the Contract Act. Therefore, there is no reason why they should be made responsible for the loss suffered by the respondent/claimant. 9. In reply, the learned counsel for the respondent/claimant, Ms. Lastly, the learned counsel submitted that the appellant/Railways had fulfilled their part of the contract agreement as per section 151 of the Contract Act. Therefore, there is no reason why they should be made responsible for the loss suffered by the respondent/claimant. 9. In reply, the learned counsel for the respondent/claimant, Ms. M. Sharma submitted as follows:- (i) That the appellant/respondent as per the agreement are responsible to reach the SLR to the destination booked for, however, the appellant/respondent never brought the SLR at Guwahati from Dibrugarh. The learned counsel went on to explain that in the night on 28.12.2005, the goods could not be unloaded as the doors of the SLR could not be opened even with the help of the Railway staff. Thereafter, the Railway authorities were informed and a memo was issued that the wagons be brought back to Guwahati from Dibrugarh, and when it reaches Guwahati, the same be opened by the Engineers of the Railway. The SLR however, was never brought back to Guwahati from Dibrugarh, therefore, the appellant/respondent has breached the contract agreement. Secondly, the learned counsel submitted that the appellant/Railways were responsible for unloading the goods at the destination, in case, the respondent/claimant were unable to do so and, for that appropriate charges could have been paid for by the respondent/claimant as per the Clause-10 of the lease agreement. The Clause-10 of the lease of agreement is given herein below;- “10. The Lessee will arrange Loading and Unloading of parcels/packages from lessed Brake Van himself by his own labour at forwarding stations as well as at destination/intermediate stations. At destination/intermediate station, if party fails to unload the Brake Van within prescribed time from the rake standing on the platform, Railway shall unload the packages and charge necessary cost from the lessee”. (ii) The learned counsel further submitted that as per the Clause-30 of the lease agreement, it was the duty of the appellant/Railways to attach an SLR which is in good condition. However, they attached the defective SLR which doors could not be open which has led to all the consequences mentioned above. Therefore, the appellant/Railways cannot avoid their liability. (ii) The learned counsel further submitted that as per the Clause-30 of the lease agreement, it was the duty of the appellant/Railways to attach an SLR which is in good condition. However, they attached the defective SLR which doors could not be open which has led to all the consequences mentioned above. Therefore, the appellant/Railways cannot avoid their liability. Lastly, the learned counsel submitted that under section 151 of the Contract Act, it is duty of the appellant/Railways to fulfill their part of the Contract by exercising due diligence but they failed to do the same, therefore, they are liable to make the loss goods. 10. Having laid down all the grounds raised in the appeal by the appellant/Railways and the argument submitted by both the learned counsel of the parties, I shall now take up the same as follows:- It is true that as per the agreement the respondent/claimant was supposed to take care of his goods including labeling all the packages and loading and unloading of the same, and locking of the doors of the SLR. However, the appellant/Railways are not entirely free from any responsibility because, as per the Clause-4 of the agreement the appellant/Railways are responsible to lock the brake van doors along with the lock of the respondent/claimant and also are responsible for safe transfer of the brake van intact over the railway portion. This is evident from Clause-4 of the lease of the agreement which reads as follows:- “……………the Brake Van will be sealed and pad locked by the lessee and also by the Railway. The Railway liability will be limited to safe transfer of the Brake Van with Railway seal intact over the Railway portion only”. 11. There is no denying over the fact that there was a lease agreement between the parties under which the respondent/claimant had taken one SLR for transporting goods from Howrah to Guwahati. There is also no denying over the fact that the goods of the respondent/claimant were loaded in the leased brake van on 28.12.2005 and the same arrived at Guwahati on 29.12.2005. There is also no denying over the fact that the respondent/claimant along with staff of the appellant/Railways could not opened the doors of the SLR/brake van at Guwahati when it arrived on 29.12.2005. There is also no denying over the fact that the respondent/claimant along with staff of the appellant/Railways could not opened the doors of the SLR/brake van at Guwahati when it arrived on 29.12.2005. There is also no denying over the fact that the Train No. 5959 UP to which the SLR/Brake van was attached left for Dibrugarh along with the SLR/brake van without opening the doors of the same and without delivering the goods of the respondent/claimant. There is also no denying over the fact that a memo was issued by the railway authority at Guwahati directing the Sr. Section Engineer to open the doors of the SLR/brake van at platform on arrival from Dibrugarh but the said SLR/brake van was never brought back to Guwahati, the agreed destination where the goods of the respondent/claimant were to be unloaded. 12. Taking into consideration of the above, a conclusion can be drawn that the respondent/claimant had booked his goods but the same could not be delivered at Guwahati due to mechanical defect of the brake van doors. The only question is whether the appellant/Railways can be held responsible for the mechanical defect due to which the doors of the brake van could not be opened and as a consequence of which the goods of the respondent/claimant could not be delivered on that day i.e. on 29.12.2005. It would not be reasonable and justified to hold that the respondent/claimant was responsible for the mechanical defect in the system of the doors of the brake van because the van belongs to the appellant/Railways and they are responsible to maintain the same and to keep it in working condition specially when the same is lease out to a customer for consideration. Therefore, only the appellant/Railways can be held responsible for the same. 13. Further as stated above, there is no denying of the fact that the leased brake van left for Guwahati and reach Dibrugarh and the appellant/Railways were fully aware of it. Under the lease agreement, particularly, Clause-4 of the same, the appellant/Railways are responsible for reaching the leased brake van to the destination for which they were paid for. Therefore, the appellant/Railways should have brought back the SLR or leased brake van from Dibrugarh to Guwahati where the same could have been opened and goods of the respondent/claimant delivered. Under the lease agreement, particularly, Clause-4 of the same, the appellant/Railways are responsible for reaching the leased brake van to the destination for which they were paid for. Therefore, the appellant/Railways should have brought back the SLR or leased brake van from Dibrugarh to Guwahati where the same could have been opened and goods of the respondent/claimant delivered. However, the appellant/Railways inspite of the memo having been issued by their appropriate authority for doing the same attempted to open the same at Dibrugarh and while doing so the van caught fire and some of the goods were burned and the rest of the goods never got delivered to the respondent/claimant due to a criminal case registered in connection with the incident. It is the duty of the appellant/Railways to bring back the brake van to the agreed destination for which they have received charges or fees from the respondent/claimant. 14. The record shows that the copies of the invoices of the goods said to be have been booked by the respondent/claimant for transportation and loaded in the leased brake van were filed before the Tribunal. However, there is no record showing that the same were denied or refuted by the appellant/railway. Under such facts and circumstances, one has to accept that the respondent/claimant had discharged his burden of proving the kind, quantum and the value of the goods they had loaded in the leased brake van. 15. From plain reading of section 93 of the Railways Act one can easily understand that the railway shall not be responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment arising from the reasons enumerated therein including the one given at Clause (i) i.e. fire, explosion or any other unforeseen risk provided they are able to prove that they used reasonable foresight and care in the carriage of the goods. In this case, there is nothing in the record which shows that the appellant/Railways had discharged the burden of proving that they had used reasonable foresight and care while carrying the goods of the respondent/claimant. In this case, there is nothing in the record which shows that the appellant/Railways had discharged the burden of proving that they had used reasonable foresight and care while carrying the goods of the respondent/claimant. Further, as stated above, it is an admitted fact that the leased brake van or the SLR caught fire at Dibrugarh while the railway staffs were trying to open it and because of that some of the goods of the respondent/claimant got burned and the rest of the goods were never brought back to Guwahati, the agreed destination. The fact that all these had happened not due to the negligence or wrongful act of the respondent/claimant is manifestly apparent from the record, pleadings and submissions of the parties. Therefore, the appellant/Railways cannot escape liability by taking shelter under section 97 of the Railways Act. 16. Coming to the quantum of the compensation awarded by the Ld. Tribunal, I find no room for interference. Because; (i) the goods of the respondent/claimant got burned when the negligent railway staffs were trying to open the doors of the leased brake van/SLR and the appellant/Railways never brought the leased SLR/Brake van to the agreed destination; (ii) the respondent/claimant has proved the kind, quantum and the value of his goods loaded in the leased brake van by producing the relevant invoices which are not disputed by the appellant/Railways; and (iii) the printed/standard form of lease agreement which states that the liability shall not exceed Rs. 50/- per Kg of the weight of such goods or the actual cost of the consignment whichever is lesser, is an unfair, not rational therefore, unreasonable. As such, cannot be a valid agreement in law. In view of the above, I find no reason to interfere with the impugned judgment and order of the Railway Tribunal. Accordingly, the appeal is dismissed. No order as to cost.