JUDGMENT 1. Exception to judgment and decree dated 31.1.1997/4.2.1997 in Civil Suit No.32-A/1989 is taken of vide this first appeal under section 96, Code of Civil Procedure, 1908 by the defendants. 2. The parties are referred as were before the trial Court. 3. Plaintiff is the partnership firm engaged in the business of manufacturing lime in its kilns by limestone and coal. The coal burnt are of steam grade which is procured from the defendants after prior sanction from the Industry Department. That, on an order placed by the plaintiff, defendant deployed one coal box wagon No. C.R.88993 under Railway Receipt No.441421 dated 25.1.1987 Ex-Ramnagar “R” to KMZ. The wagon was placed for delivery to the plaintiff on 26.1.1987 at B.C. Siding in Katni by the Railways. On delivery the consignment found was coal dust instead of steam grade coal. A report to that extent was given by the Station Master KMZ on 26.1.1987. The matter was reported to General Manager, Quality Control Seepat Road, Bilaspur vide Telegram. Registered notice was served upon defendants No.4 and 5 on 11.1.1989 intimating them of the shortage of coal. As the total cost of material charged from the plaintiff being Rs.20,722.14 and an amount of Rs.4,480/- towards freight charges to the Railways vide RMRB 866003 dated 25.1.1987, plaintiff filed a suit for recovery of Rs.31,502/- which included Rs.800/- towards unload and transport charges and Rs.5,000/- towards the loss sustained on 7.11.1987. 4. Defendants No.1, 2 and 3 filed joint written statement and denied the contentions in the plaint. It was stated that the loading is done, by Calcutta Office of SECL under an agreement with LOCO and the loading is done by the Railways after the joint sampling by the SECL and LOCO at loading point. It was contended that the coal box wagon No. CR 88993 was loaded along with the complete rake of 35 KC and 12 BKC wagons for different consumers. 26 numbers with pure screened steam coal transported from the mine (Ramnagar). That, no complaint was received from other 25 consumers. That, loading at Ramnagar siding is done with steam or slack coal according to the allotment from separately dumped, screened coal transported from the wire through tipping trucks. 26 numbers with pure screened steam coal transported from the mine (Ramnagar). That, no complaint was received from other 25 consumers. That, loading at Ramnagar siding is done with steam or slack coal according to the allotment from separately dumped, screened coal transported from the wire through tipping trucks. It was contended that on receiving information through plaintiff a team of SECL Officials visited Katni on 28.1.1987; however, before their arrival the wagon was allegedly inspected by the Director of Industries, Katni and Station Master KMZ and the defendant were not given an opportunity to inspect the wagon. It was further contended that as per terms of sale SECL is not responsible for any quality complaint at the destination. That, no screening test or picking test was done by the plaintiff to arrive at the actual percentage of slack, dust on scientific basis. But the sample were not drawn jointly in presence of SECL official, no second or other portion of the sample sent to the defaulting colliery, no reference portion of sample preserved by sealing it in presence of buyer and seller to ascertain the actual quality. That government testing laboratory, i.e., CFRI was not chosen. Representative samples were not drawn. It was further contended that the dispatch being ‘FOR’ siding, it was at purchaser’s risk. The rake was supplied for loading at 12:30 hrs. of 22.1.1987 and drawnout by Railway at 3:50 p.m. on 23.1.1987. Actual quantity was loaded volumetrically as per the conversion factor of the coal and handed over to the Railways and the loading was to the satisfaction of Railways. Any shortage was the responsibility of Railways. It was further contended that the material was inspected by the SECL official team at the factory and mill premises and observed slackness and further breaking of material to the extent of 10% to 60%-70% due to loading and unloading and as a gesture of goodwill the difference of price of Grade A Steam and Grade B slack coal @ 34 per tonne at the estimated average of 65% of slack coal amounting to Rs.1,999.20 was paid through credit note. The defendant further denied the entitlement of the plaintiff for compensation for alleged loss of business. 5. The trial Court framed as many as 13 issues. 6. Parties went to trial. 7. The defendant further denied the entitlement of the plaintiff for compensation for alleged loss of business. 5. The trial Court framed as many as 13 issues. 6. Parties went to trial. 7. The trial Court relying upon Ex.P-4, Panchnama, Ex.P-5 Inspection Report by the Station Master, Ex.P-6 the report by the Manager, Industrial Department, Ex.P-7, analyst’s report and the evidence of PW1 (S.N. Chaturvedi), PW2 B.P. Gupta, and that of DW1 S.K. Chakravarti and DW2 S.P. Dohre and Ex.D-2, held that besides the less quantity, 90% of consignment was coal dust and not steam grade coal. 8. The question is whether the trial Court has rightly appreciated the evidence, oral and documentary, on record. The trial Court decreed the suit. 9. Partner of plaintiff examined himself as PW1. In paragraph 9 of his evidence he admits that the price of coal was FOR siding and that he did not send his representation at Rampur siding. In paragraph 10 he admits that without waiting for the Officers of SECL he got the wagon unloaded. He further admits that the sample taken by him was not sent to the defendants. This witness does not give any evidence as to loss of business. PW3, an employee of the Industries Department in paragraph 6 of his evidence admits that he did not take the sample of consignment and only by seeing visually he could guess that 90% of consignment was dust. He further admits in paragraph 10 that he is not aware as to how much quantity of coal was consigned. PW3, an employee of the Industries Department in paragraph 6 of his evidence admits that he did not take the sample of consignment and only by seeing visually he could guess that 90% of consignment was dust. He further admits in paragraph 10 that he is not aware as to how much quantity of coal was consigned. PW4 who is examined by the plaintiff, who is said to have analyzed the quality of coal, in paragraphs 4 and 5 categorically stated that : 4- ;g ckr lgh gS fd esjs gLrk{kj es dgha Hkh ,Mh'kuy Mk;jsDVj dh lhy ugha yxh gSA dks;yk tkWp ds fy;s daiuh dk deZpkjh yk;k Fkk mldk uke ;kn ugha gS dks;yk ysus esa ugh x;k FkkA ftl LFkku ls dks;yk yk;k x;k ml LFkku dh tkudkjh deZpkjh }kjk nh xbZ FkhA izih&7 esa l ls Hkkx ij csaxu uacj fy[kk gS ,oa M+ ls M+ Hkkx ij LFkku fy[kk gqvk gSA eS ;g ugha crk ldrk fd dks;yk csxu esa Åij ls fy;k x;k ;k uhps ls fy;k x;kA Lor% dgk fd lfVZfQdsV esa fdl fof/k ls lsaiy bdV~Bk fd;k x;k gS ;g ckr fy[kk gqvk gSA 5- eSus prqosZnh feujYl ds dgus ij ,ukyk;fll fd;k FkkA prqosZnh feujYl okys us xzsM crkus ds fy;s ugha iwNk FkkA eS izih 7 dks ns[kdj dks;ys dk xzsM ugha crk ldrkA dks;ys dh tkWp eSusa izfroknhx.k ds ;gkW ugha Hksth Fkh vkSj uk gh bldh lwpuk nh FkhA D;ksafd tks ges VsLV djus dks nsrk gS mlh dks fjiksVZ nsrs gSA 10. Thus, on hearsay this witness, who claims to be an analyst, had given the certificate. The credibility of this witness being an analyst is highly doubtful. 11. Defendants witness No.1 stated that Steam Grade ‘A’ coal was loaded in a rake comprising of number of wagons. Loading was ‘FOR’ as per Government notification Ex.D-1. He further stated that the loading was supervised by Inspector Shri S.P. Dohre. Shri Dohre is examined as DW2 who categorically states of loading 58 tonnes Steam ‘A Grade coal in the wagon. True it is that in the inspection note Ex.D-2 he did not record that Steam ‘A’ grade Coal is recorded, but that is not the requirement. This witness had supervised the loading, which is not negatived by the plaintiff. 12. Shri Dohre is examined as DW2 who categorically states of loading 58 tonnes Steam ‘A Grade coal in the wagon. True it is that in the inspection note Ex.D-2 he did not record that Steam ‘A’ grade Coal is recorded, but that is not the requirement. This witness had supervised the loading, which is not negatived by the plaintiff. 12. Ex.D-1 is a Gazette notification issued by the Government of India, Ministry of Energy (Department of Coal) in pursuance of clauses 3 and 4 of the Colliery Control Order, 1945 whereby it prescribed the classes and grades of coal and coals. Table II whereof delineates the description of non-cooking coal, prescribing the sale price of coal Grade A (Exceeding 6200 KC per Kg.) at Rs.306 per tonne. That, clause 10(ii) of the notification further stipulates that where any colliery which starts selling coal at FOR basis after the publication of notification (8.1.1986) and has to transport coal for a distance exceeding 3 kms. to the Railway siding, the actual cost of such carriage of coal from pit head to the railway siding shall be payable extra, and shall be borne by the purchasers. 13. There is no evidence on record by the plaintiff that the booking was not FOR and the owners’ risk. On the contrary he admits that the consignment was booked FOR. As it was thus incumbent upon the plaintiff to have deputed his agent to have witnessed the loading of wagon at the siding. Instead, as duly admitted, no representative was sent. Thre is no iota of evidence on record to even suggest that the coal ‘A’ Grade was not loaded at Railway siding. 14. Section 97 of the Indian Railways Act, 1989 provides for that : 97. Goods carried at owner’s risk rate. Instead, as duly admitted, no representative was sent. Thre is no iota of evidence on record to even suggest that the coal ‘A’ Grade was not loaded at Railway siding. 14. Section 97 of the Indian Railways Act, 1989 provides for that : 97. Goods carried at owner’s risk rate. -- Notwithstanding anything contained in section 93, a railway administration shall not be responsible for any loss, destruction, 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 of 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. 15. In Union of India v. Shankerlal [ 1972 MPLJ 843 ], it is held : “9. The principles underlying section 74(3) is that where goods are booked at the owner’s risk rate, it is the owner’s own liability in case of loss, destruction, etc. and there is no liability of the railway. But the owner’s risk does not extend to loss, destruction, etc. being caused by misconduct or negligence of the railway administration, or any of its servants. Therefore. and there is no liability of the railway. But the owner’s risk does not extend to loss, destruction, etc. being caused by misconduct or negligence of the railway administration, or any of its servants. Therefore. Section 74(3), while enacting a general rule that in case of booking at the owner’s risk rate, the risk is of the owner and the railway is not liable, provided that the railway will be liable if such negligence or misconduct is proved.” 16. The burden was thus on the plaintiff to have proved that it was not Grade ‘A’ coal but coal dust was loaded at Railway siding which the plaintiff has miserably failed to prove. The plaintiff also did not wait even for day to have allowed the team of officials of SECL to inspect the coal in the wagon. Furthermore, the Station Master who gave the certificate Ex.P-5 was not examined. The analyst who was examined, as evident from his evidence, had given the certificate on hearsay rather than on any chemical analysis. 17. Since the consignment was booked FOR which means free on rail meaning thereby the vender will bear all the expenses and risks prior to the putting the goods on board or rail. As soon as the goods are put on board or rail the responsibility of the vendor ceases and the risk as well as property vests in the vendee. Reference can be had of the decision in M/s. India Coffee and Tea Distributing Co. Ltd. v. The state of Madras [AIR 1954 SC 1030], wherein it is held : 25. The words FOB and FOR stand for Free on Board and Free on Rail respectively. Where the seller agrees to sell goods on FOB or FOR terms at means the seller will bear all the expenses prior to the putting on board or rail. As soon as the goods are put on board or rail the responsibility of the seller ceases and the risk as well as property vests in the buyer. Prior to the putting on board a ship or rail of the goods, the seller alone must bear the damages to the goods : Underwood Ltd. v. Burgh Castle Brick it Cement Syndicate [1922-1 KB 343 (Z20) and Colley v. Overseas Exporters Ltd. [1921-3 KB 302 (Z21)]. 18. Prior to the putting on board a ship or rail of the goods, the seller alone must bear the damages to the goods : Underwood Ltd. v. Burgh Castle Brick it Cement Syndicate [1922-1 KB 343 (Z20) and Colley v. Overseas Exporters Ltd. [1921-3 KB 302 (Z21)]. 18. In the case at hand as the goods were booked FOR being at owner’s risk, incumbent it was upon the plaintiff to have established that what was booked was not Coal Grade ‘A’ but coal dust. There is no iota of evidence led by the plaintiff to that effect. The trial Court thus on presumption that the coal dust was loaded in the wagon decreed the suit, which cannot be countenanced in the present case in absence of direct evidence. Even the damages which the plaintiff has claimed could not be proved. The trial Court grossly erred in glossing over these vital piece of evidence on record and thus committed grave error in decreeing the suit. On the contrary as the plaintiff had failed to establish that the consignment booked was not Grade 'A' coal but coal dust the suit deserves to be and is hereby dismissed. Appeal is allowed to the extent above. There shall be no costs.