K. HEMA, J.

1. Application was filed by the respondent herein u/s 16 of the Railway Claims Tribunal Act, 1987 ('The Tribunal Act' for short) for compensation from Railway for the loss sustained by the respondent because of the damage caused to the consignment sent by railway. The said application was allowed and an award was passed in favour of the respondent for realization of Rs. 1,64,234/- from the appellant, with interest at the rate of 6% per annum, from the date of entrustment of the consignment to the Railways till the date of judgment with cost of Rs. 3,000/-. The appellant was given 45 days time to comply with the order. This appeal is filed by the railway challenging the said order. According to the claimant, 258 bags of Wheat were booked vide Ext. P1 dated 16-10-1997 from Khanna to Tellicherry by M/s. Sood Brothers. There was long delay in the consignment reaching the destination at Tellicherry. Though the claimant informed the railway from time to time about the delay, he was informed that the consignment reached Tellicherry Railway Station on 12-06-1998. Later on 09-04-1999, the Chief Claims Officer, Southern Railway sent a letter to the claimant stating that the consignment was disposed of on auction for an amount of Rs. 49,100/- and he was called upon to pay the wharfage charges pertaining to the above consignment.

2. The goods were decayed and damaged as a result of the long delay caused in delivering the goods at destination by Railway Administration. They failed to compensate claimant even after the notice were served u/s 106 of the Railways Act, 1989. The respondent sought for a direction to appellant to pay an amount of Rs. 1,64,234/- by way of compensation for the loss sustained by the claimant in respect of the railway receipt being the value of 258 bags of Wheat plus freight paid.

3. The railway appellant filed a reply to the petition and took up the following contentions. The claimant refused to take delivery when the consignment reached the Tellicherry Railway station and on by virtue of Section 82(1) of the Railways Act and hence he lost the right to claim compensation for the loss sustained. The application is to be dismissed on the above score itself. The appellant also staled in the reply that the consignment said to contain 258 bags of Wheat were booked by the applicant from Khanna to Tellicherry under the Railway Receipt and consignment was directly loaded from truck to wagon by the consignor and the Railway staff did not supervise loading and the contents and condition of the bags were not checked. The claimant is put to strict proof of the actual endorsement of the sound condition of the consignment loaded at the forwarding station. Relying upon certain judgments, it was contended that the claimant is not entitled for compensation. The respondent did not admit the value of consignment and the claim in the petition.

4. PW 1 was examined and Exts. P1 to P7 were marked on the side of the claimant. The respondent examined RW 1 and marked Exts. R1 to R7 on either side. On an analysis of the rival contentions, learned Tribunal found that as per Section 82 of the Railways Act, the consignee or the endorsee shall take delivery of the consignment or part thereof and in case of failure to take delivery, wharfage charges may be levied. It was also held that the provision will not absolutely absolve appellant from its liability, though it empowers appellant to charge wharfage charges.

5. It was also held that claimant refused to take delivery and there was gross negligence on the part of appellant, for it has not fulfilled its commitment to its customer by delivering the consignment in reasonable time and thereby caused considerable financial loss and inconvenience to the claimant. The Tribunal also found that the claimant is entitled to the value of 258 bags of Wheat booked under Ext. P1, the railway receipt. Since Ext. P1 was admitted by the appellant, it was further held that taking judicial notice