The court confirmed that timely notice under Section 106 of the Railways Act is essential for claiming damages, while emphasizing shared liability between consignor and Railway for delays affecting perishable goods.

JUDGMENT :

(SUSMITA PHUKAN KHAUND, J.)

1. The appellant in this case is M/s Sunrise Traders and the respondent is The Union of India represented by the General Manager, NF Railway.

2. Heard learned counsel Mr. D. Rathi for the appellant and learned Special Senior Railway Advocate, Ms. U. Chakrabarty for the respondent.

3. The appellant's case in brief is that on 21.05.2010, by Invoice No. 118, and Railway receipt No. 212051816, 883 packets of potatoes weighing 45 kgs each were booked from (Delhi Kishanganj) DKZ to (New Gauhati) NGC. At destination, it was found that the potatoes in the packets were damaged and rotten and unfit for human and animal consumption. The potatoes got damaged owing to the delay in delivery and the respondent was thus liable to pay compensation. Moreover, Railways collected Rs. 9,500/- towards demurrage charge and the appellant is entitled to realize the demurrage charges from the respondent. 883 packets containing 4 quintals of potatoes were valued at Rs. 1,200/- per quintal and the respondent is thus liable to pay a compensation of Rs. 4,80,000/-.

4. On finding the potatoes in utterly damaged condition, the appellant submitted their claim for non-delivery of goods vide the claim letter dated 03.06.2010 enclosing the original Railway receipt to the Office of the G.M. (Claim), N.F. Railway and the same was acknowledged by the Railways vide letter dated 09.06.2010. Reminders were also sent for tracing the goods to the Railways vide letters dated 14.06.2010 and 21.06.2010. The information about the arrival of the goods was received after about 40 days of transit. The appellant/applicant then vide letter dated 29.06.2010 requested the Railways to return the original RR to enable them to take delivery of the goods at destination point with instructions to the goods clerk for delivery of goods free of DC and on proper assessment of damages, the Railways returned the RR vide Railway letter dated 29.06.2010 without any instructions to CGS/NGC about delivery of goods free of DC and for assessment of loss for the damaged goods.

5. Finally, the Railways granted delivery and loss assessed by a team of Railway Officers vide the assessment report certificate dated 01.07.2010 and it was reported that on visual examination by DCM/GHY and Food Inspector/NGC, Food Inspector who certified that 883 bags of rotten potatoes were found in damaged condition and unfit for human and cattle consumption, vide letter L/H/7/F.1/10 dated 01.07.2010. On the contrary, the Railways forced the applicant to pay Rs. 9,500/- which was paid vide MR No. 882269 dated 04.07.2010. As the DC collected by the Railways was utterly illegal, the applicants have claimed Rs. 4,80,000/- + Rs. 9,500/- = Rs. 4,89,500/- on account of the negligence and misconduct of the Railway authorities.

6. The respondents filed written objection contending inter alia that the validity of service and sufficiency of notice under Section 106 of the RAILWAYS ACT is not admitted by the respondent as the amended claims notice dated 12.07.2010 was served by an individual who affixed his initials only on behalf of the claimants, Sunrise Traders without any power of attorney. It is averred that the demurrage charges were correctly realized.

7. It is argued o