GENERAL MANAGER SOUTHERN RAILWAY Vs. AGARWAL TRADERS

JUDGEMENT

(1.) THIS is a defendant's appeal in a suit for payment of compensation for damage caused to goods entrusted to the Indian Railways at Lucknow for carriage to Davangere, in the State of Karnataka. The claim in question was initially lodged before the Civil Judge at Davangere in O. S. No. 125/1984 which was upon constitution of the Railway Claims Tribunal, transferred to the Tribunal under Section 24 of the Railway Claims Tribunal Act, 1987. The Tribunal has awarded the claim, hence the appeal.

(2.) THE Claimant-respondent in this appeal is a partnership firm carrying on business as Merchant and Commission Agents at Davangere. Two consignments comprising 180 bags of Gram in each were booked on behalf of the claimant for transportation from Lucknow city to Davangere in July,1981. The consignments were a few months later delivered to the respondent-consignee at Davangere. At the time of delivery, out of the first lot of 180 bags only 1070 kgs. was in good condition while the remaining had suffered damage. From out of the second lot of 180 bags also only 582 kgs. was found to be good while the rest was damaged. The delivery of the damaged part of two consignment was taken by the consignee only after the Railway Superintendent had issued a certificate to the effect that 98% of the said stock was damaged. In due course the consignee lodged a claim for compensation for the damage suffered by the consignments on account of the negligence of the Railway Authorities. Two claim notices marked Exts. P-9 and P-10 were in this connection sent to the Railway Authorities. In the first notice, the consignee claimed a sum of Rs. 66,139/- while in the second a claim for a sum of Rs. 68, 294/- was made. Upon failure of the Railway Authorities to recognise and pay the claim amount, the respondent consignee filed O. S. No. 125/1984 for a sum of Rs. 1,91,532/- inclusive of interest at 18% per annum from the date the consignment was booked till date of suit.

(3.) THE claim was contested by the Railway Administration on the ground that the damage to the consignments was due entirely to an act of God and despite due care and foresight used by the Railways. The Tribunal has however come to the conclusion that the Railway Administration had failed to establish use of reasonable foresight and care in the carriage of the consignments in question and therefore failed to discharge the burden that lay upon it in terms of proviso to Section 73 of the Railways Act. It has accordingly awarded the claim made by the respondent-consignee but only in part and to the extent of a sum of Rs. 1,19, 481/- with interest at 6% per annum, calculated from the date of the application till the date of the order. A further direction to the effect that in case the amount was not remitted by the appellant Railway Administration within two months shall pay interest on the awarded amount at 18% per annum was also issued. The Railway Administration has questioned the correctness of the said order in the present appeal.