Railway administration can be held liable for damages in transit even under owner’s risk terms if negligence is proven, particularly regarding perishable goods.

JUDGMENT :

SANJEEV KUMAR SHARMA, J.

1. Heard Mr. D K Dey, learned counsel for the appellant and Ms. M Sharma, learned counsel for the respondent.

2. This is an appeal under Section 23 of the Railway Claims Tribunal Act 1987, preferred by NF Railways, challenging the judgment and award dated 10-05-2016 passed by the Learned Railway Claims Tribunal, Guwahati Bench, Guwahati in Claim Application O.A No. 5/2010 (Old) & O.A No-I/Guwahati/2010/0005 (New).

3. By the said judgment the learned Tribunal directed the Railway Authority to make payment of compensation to the respondent for an amount of Rs. 2,52,611/- (damage of 13150 kg of potatoes) to the claimant/respondent. The present respondent, as the claimant, had preferred a claim application before the learned Tribunal stating that the applicant/opposite party booked a trainload consignment of 850 bags of potatoes (50 kg packing each) on 15.09.2009 under Invoice Number 7760/Railway Receipt 212041708 from DKZ to NGC under trainload condition in safe, sound and secure condition under railway risk rate after meeting all legal and statutory inspections as per railway rules.

4. The wagons containing the consignment were stranded at KIUL for about a week. On being requested, CGS/NGC issued a telegraphic message dated 25.09.2009 for movement of the stranded wagons to the destination to avoid damage to the potatoes. The applicant further averred that the consignment reached destination after an abnormal delay and at the time of unloading, it was found that the wagon doors were in an open condition, the wagon roof was leaky, the wagon body was in a damaged condition and stacks of potatoes were in a wet damaged/rotten condition and foul smell was emitting from them. On unloading, it was found that 13,150 kg of potatoes were in a wet, damaged and rotten condition. After proper inspection and verification, the respondent Railway issued necessary short and damage certificates. It is also averred by the applicant that despite serving notice along with the original Damage Delivery Certificate and copy of Beejuck, the respondent did not pay any compensation. As the damage was due to the negligence on the part of the respondent Railway during railway transit, the respondent is liable to compensate the loss sustained by the applicant along with interest and cost.

5. The present appellant/respondent on receipt of notice contested the case by filing a written statement and exhibited relevant documents. In their written statement the Railway has contended that the consignment was booked by the sender at the forwarding station under the remarks in the Railway Receipt “wagon jointly examined found fit and water tight, train load condition complied with loaded direct from truck/cart to wagon, loading not supervised by Railway staff, bags not of uniform size, condition of contents not checked outer not complained of, O.R”. The Railway further states that the Railway is not liable for the alleged damage as the consignment was booked at owner’s risk rate under Section 97 of the Railways Act.

6. The present appellant/respondent also resisted the claim on certain other technical grounds including the validity and sufficiency of the notice under Section 106 of the Railways Act.

7. On the basis of the pleadings of the parties, the following issues were framed for determination by the learned Tribunal:-

1. Was there been a proper notice under Section 106 of the Railways Act?

2. Was there been any damage as contended by the applicant?

3. Whether the respondent is liable to pay compensation? If so, to what sum?

4. Reliefs and costs?

8. Neither party adduced any oral evidence. The applicant filed copies