( 1 ) HEARD the learned Counsel for appellant and the learned Counsel for the Respondent.

( 2 ) THIS CMA is preferred by the appellant-Railways being aggrieved by the order of the Railway Claims Tribunal, secunderabad Bench, Secunderabad in oaa No. 108 of 1998 dated 7. 6. 1999 in granting compensation of Rs. 68,362/- to the respondent herein.

( 3 ) THE respondent is the applicant in the OAA filed the said application contending that a consignment of Tank Wagon No. SC- 49044 consisting of 27020 litres of M. S. was booked with the Appellant-Railways under R. R. No. 106309 dated 2. 4. 1994 from visakhapatnam to Rajahmundry with the loaded dip of 210. 8 cms. , but when the tank wagon was received at the destination- rajahmundry on 5-4-1994, there was a shortage of 4353 litres of MS. It is stated that while the wagon was under the custody of the Railways, the top seal was found missing and the bottom seal was found intact and there was a drop in dip by 36. 8 cms. and therefore, claimed compensation from the Appellant-Railways.

( 4 ) THE case of the Appellant-Railways is that since the original Railway receipt bears remarks "said to contain", and loading is not supervised by Railway Staff, and therefore Railway is not liable to pay any compensation for the alleged shortage of ms. It is stated that the Appellant-Railway is not responsible for the contents, condition, quality, quantity and value of the consignment loaded, since the loading takes place in the applicant s siding and the loading was not supervised by the Railway Staff and therefore the Railway is not responsible for the alleged missing of seals since the responsibility for sealing etc. , rests with the applicant only. It is also stated that the short delivery certificate was issued on the request of the consignee, without prejudice, at the destination station only to place on record the actual quantity received at the destination station and it does not amount to admission of any liability or the shortage was occurred due to, Railway negligence in the carriage of consignment.

( 5 ) NONE were examined on behalf of the applicant. Based on certain documents, the Tribunal held that Section 94 of the railways Act, 1989 cannot be used as a defence and there is no law that prohibits the Railway to supervise the loading and unloading and therefore Railways are liable to pay the compensation.

( 6 ) A perusal of the records discloses that nowhere, the Railway authorities admitted that the Railway Staff supervised loading and unloading and merely because the dip measurement was mentioned in the receipt, it cannot be said that the railways have admitted the dip measurement at the time of loading.

( 7 ) THERE is no dispute with regard to the fact that the loading was made at the applicant s siding, which is not under the control of Railways. Admittedly, the Railway authorities have not supervised the loading of the said consignment.

( 8 ) IN this context, it is relevant to note Sections 81 and 94 of the Railways act, 1989, which reads as under: section 81 : Open delivery of consignments: Where the consignment arrives in a damaged condition or shows sings of having been tampered with and the consignee or the endorsee demands open delivery, the Railway Administration shall give open delivery in such manner as may be prescribed. Section 94: Goods to be loaded or delivered at a siding not belonging to a Railway administration : (1) Where goods are required to be loaded at a siding not belonging to a Railway Administration for carriage by Railway, the Railway administration shall not be responsible for any loss, destruction, damage or deterioration of such goods from whatever cause arising until the wagon containing the goods has been placed at the specified point of interchange of wagons between the siding and the Railway Administration and a Railway servant authorized in this behalf has been informed in writing accordingly by the owner of the siding. (2) Where any consig