J K CEMENT WORKS Vs. UNION OF INDIA

JUDGEMENT

(1.) The instant First Appeal from Order arises out of judgment and order dated 29.7.1999, passed by Railway Claims Tribunal, Lucknow Bench, Lucknow in Claim Application No. O.C. 9200325 M/s. J.K. Cement Works v. Union of India thereby dismissing the claim of the appellant. The facts, in brief, are that M/s. J.K. Cement Works, the appellant having its Head Office at Kamla Tower, Kanpur booked a consignment of 17927 bags cement in 32 wagons under Railway Receipt No. 741929 to 741933 dated 13/15.5.1989 from Nimbahera siding to Kanpur Anwarganj goods shed which reached at destination on 21.5.1989. Out of 32 wagons, only 19 wagons were placed in covered shed meant for inward traffic and 13 wagons were placed at outward shed which was partly having roof of G.I. Sheets open from all sides and the rest of the platform was quite open. Though all these wagons should have been placed in covered shed, but Railway Administration placed 13 wagons consisting of almost 7280 bags of cement at a shed not meant for the purposes, where the necessary arrangements for protection of goods from rain did not exist. The appellant's agent requested the Railway Staff to place the said wagons in the covered shed for unloading but the request was turned down. After waiting for two days the appellant had to unload the wagons and the cement bags were stacked under the roof to the extent the accommodation permitted and the remaining bags on open platform. Before the consignment could be removed from the platform after taking delivery, rain took place on 24.5.1989 at 16.45 hours and continued upto 17.20 hours. The working hours of the Goods Shed were 6 to 18 hours meaning thereby that the entire staff on duty was present at the time the rains started but no means were applied to protect the consignment from damage by rain. As a result, out of 7280 cement bags lying on platform of Shed No. 5, 4231 bags were affected with rain to the extent that 1994 bags were partly set and 1617 bags were fully set. As per joint survey report issued by Railway Administration a loss was caused to the tune of Rs. 2,11,555/-. The appellant served a notice under section 78-B of Indian Railways Act on 18.7.1989. When no response was received from the respondent, the appellant preferred an Application No. O.C.9200325 before the Railway Claims Tribunal for claiming recovery of Rs. 2,11,555/- alongwith cost and pendente lite and future interest due to damage of the consignment by rain while in the custody of the respondent who failed to exercise due and reasonable care for the protection of the consignment.

(2.) The claim of the appellant before the Tribunal was contested by the Railways. In the written statement filed, title of the appellant and its right to prefer the claim petition was challenged on the ground that the appellant was not the owner of claim consignment, the application had not been signed and verified by the competent person. It was also denied that there was any negligence or carelessness on the part of railway administration in dealing with the consignment. The consignment was booked under owner's risk rate. After the consignment reached the destination, the consignee/his representative signed the wagon transfer register in acceptance of placement of racks. Consignee was issued gate pass for effecting removal of the consignment. Sufficient covered sheds were provided to the consignee. The consignee, for the reasons best known to him, did not start unloading till expiry of the transit time and was in hurry and chose to unload the consignment on open platform instead of covered shed. The consignee after seeking permission could have removed the entire consignment during the night but he did not do so. The contract of carriage between Railway and the consignor terminated as soon as the consignee took delivery of the consignment by putting signatures on the delivery book and only thereafter the consignee was permitted for effecting removal. Delivery is always given for the whole consignment and not in part. Signature of the consignee on the delivery book is a sufficient proof for effecting physical delivery. As such, Railway Administration is protected under sections 93(a)(f) and (I) and 94 of the Indian Railways Act, 1989.

(3.) Learned Tribunal after appreciating the evidence and submissions of learned Counsel for parties, decided 'he issue No. 1 in favour of the applicant/appellant. The issue No. 2 was decided against the appellant on the ground that the Railways had fulfilled all the liability by delivering the consignment and issuing gate passes. The goods were in the custody of the appellant/applicant who failed to remove the goods in time. As such, the learned Tribunal held that it was on account of the consignee's negligence and omission that the damage occurred and the respondent gets protection under sections 93(f) and 102(c)(i) of the Railways Act, 1989. The issue No. 3 was rejected on the basis of the finding of issue No. 2 and finally the learned Tribunal dismissed the application.