SURESH KUMAR AGARWAL Vs. UNION OF INDIA

JUDGEMENT

(1.) THE appellant booked a consignment of six hundred bags of Flour on May 4/5, 2000 under Invoice No. 180/330477 ex. Varanasi to Chitpur. It further transpires from the record that the consignment was loaded in the railway wagon directly from the truck without having any supervision of the Railway Authorities. The wagon was also selected by the consignor himself. Normally from Varanasi to Chitpur a consignment was due to arrive within five days whereas it was delivered at the destination after forty five days as there had been inordinate delay in arrival of the wreck. At the destination the consignment was found to be in damaged condition. Survey was conducted which revealed that the Flour was packed in old and mutilated bags and out of six hundred bags, eighteen bags were found having mark of dry water at the bottom layer. Those eighteen bags were found at the middle of the wagon. The wagon was examined by the Railway Authorities. They did not find any apparent leakage. The appropriate authority certified the consignment not fit for human consumption but for cattle feeding. Appellant filed a claim which was contested by the Railways. The Railways, in their written statement denied their liability on the ground that they did not supervise at the loading point which would be apparent from the remark made on the Railway Receipt itself. It was further contended by the Railways that reasonable due care and caution was not taken by the consignor while loading the Consignment direct from truck to wagon without being supervised by the Railway Authorities. The Railways contended in their written statement that the claimant failed to establish disposal of the damaged stuff so collected by him at the destination point. Hence, it should be presumed that there was no damage to the Consignment at all.

(2.) THE Tribunal considered the rival contentions of the parties. The Tribunal held that since there had been inordinate delay in arrival of the wrecks possibility of damage caused to the Consignment which was perishable in nature, could not be brushed aside. At the same time, the Tribunal accepted the contention of the Railways that they did not have any opportunity at the loading point to supervise the loading and to verify the quality and quantity of the Consignment. Striking a balance, the Tribunal allowed fifty per cent damage to the Consignment less ten per cent being the estimated cost of disposal of the damaged consignment. The Tribunal awarded Rs. 2,14,900/- as compensation including Rs. 2,588/- towards refund of the application fee and Rs. 500/- towards cost of the litigation. Being aggrieved, the claimant filed the instant appeal which was heard by us on the above mentioned date.

(3.) MR. Shyamal Chakraborty, learned counsel appearing for the appellant contended that it was the duty and responsibility of the Railways to be satisfied about the quality and quantity of the goods at the loading point. The appellant did not obstruct and/or cause any hindrance to the Railways in supervising the loading. Hence, they could not avoid their responsibility at the unloading point when the goods admittedly arrived far beyond the scheduled date. He relied on the inspection report to show that the goods were not fit for human consumption. He contended that the Tribunal could not have denied compensation to the extent of fifty per cent. In support of his contention he relied on the following decisions:-i) The Bihar State Co-operative Marketing Union VS- Union of India and Others reported in All India Reporter, 1978, Patna, Page 213. ii) Sujan Mal Chowkchandji VS- Union of India and Others reported in 2001, volume-III, Transport And Accidents Cases, Page 206. iii) Union of India Owning Southern Railway Rep. by its General Manager, Madras vs- M/s. Shri Ganeshar Traders reported in 2001, Volume-II, Transport And accident Cases, Page 203. iv) Jugal Kishore Naresh Kumar VS- Union of India reported in 2001, Volume-III, transport Accident Cases, Page 39. v) General Manager, Southern Railway VS- Agarwal Traders reported in 2003, volume-II, Transport Accident Cases, Page 361. Opposing the appeal Mr. Asit Kumar Banerjee, learned advocate appearing for the railways contended that once the Consignment was not booked with the Railways following the usual procedure, the Railways could not be foisted with the liability on account of alleged damage. Mr. Banerjee further contended that the Consignor would be responsible for the correctness of the particulars furnished by him in the forwarding note and would indemnify the Railway Administration against any damage suffered by it by reason of any incorrectness. He further contended that when the Consignment was not checked by a railway servant and such fact was recorded on the Railway Receipt, the burden of proof would lie on the Consignor and/or consignee as the case may be. In the instant case, the Railway Receipt would depict that there was no supervision by the Railways at the loading point. Hence, it was the duty of the appellant to prove that the Consignment was in good condition and damage was caused in transit. The appellant miserably failed on that count. He prayed for dismissal of the appeal.