JUGAL KISHOR NARESH KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The facts leading to the civil miscellaneous appeal are as under: The appellant who is the endorsed consignee/purchaser of 245 bags of wheat (120+125) sent from Hardoi to Katpadi under railway receipts Exhs. B-1 and B-2. On arrival of the goods at the destination, it was found that a portion of the consignment had been damaged in respect of which the respondent, the destination railway, issued joint survey report Exh. A-1 stating that 120 bags kept for OD were found wet, damaged, discoloured, disfigured, fungus attacked and emitting bad smell and the damage was assessed at Rs. 15,744. It is not necessary to refer to the number of bags and the percentage of assessment as the total amount claimed has already been given. The goods were sent on 24.8.1990 from Hardoi. The goods reached the destination on 13.12.1990 as seen from the D message, Exh. B-3, issued by the Chief Goods Supervisor, Katpadi. According to the appellant, the damage was caused due to negligence and misconduct on the part of the railway servants when the consignment was in transit and in their custody and the respondent was liable to compensate the loss as insurer inasmuch as they had not taken reasonable foresight and care in the transport of the consignment, having carried the consignment in a non-watertight wagon, which was unfit for transport of essential commodities and for having taken enormous time for the transit of the consignment. The appellant further contended that the respondent Railways having accepted the negligence by making part payment was liable to reimburse the loss in full.

(2.) The defence was one of denial that the goods were entrusted in sound condition for carriage at the forwarding station. The railway staff at the booking station had issued the railway receipts with the following remarks:

(3.) The Tribunal found that the bags were not already damaged when loaded by the consignor at the forwarding station, that there was nothing to indicate that the dunnage used was not of standard size, that in the railway receipts Exhs. B-1 and B-2 it was stated that 6 bags dunnage was used and there was no comment about the dunnage in the D message, Exh. B-3, that the Railways did not use reasonable foresight and care in the carriage of goods. Having found that the Tribunal qualified it by saying that the appellant had contributed to the loss inasmuch as the wheat was packed in old bags which burst in transit and also there was delay on the part of the appellant in taking delivery of the consignment. The Tribunal ultimately found that the appellant was also partially responsible for the damage and apportioned the compensation between the appellant and the respondent Railways in the ratio of 25:75. Inasmuch as the Tribunal made the appellant also liable to an extent of 25 per cent the present civil miscellaneous appeal has been filed.