The railway administration must prove reasonable foresight and care in the carriage of goods, and liability for damages should be fastened on the railways if negligence or misconduct is proved.

P. Sathasivam, J.

Applicant in O.A.I/1091/92 on the file of Railway Claims Tribunal, Madras Bench is the appellant in the above appeal. For convenience, we shall refer the case of the parties as arrayed before the Claims Tribunal. The applicant purchased and received a consignment of 140 bags of Gram from Baran to Madurai through the respondent-Southern Railway under Invoice No. 179 dated 5-2-92, RR No. 520549. According to him, at the time of taking delivery of the consignment at the destination station i.e., Madurai, all the bags were damaged by insects and weevil action, contents found with holes and powder pouring out from the holes, black insects flying. The Railway officials gave open delivery of all the bags and assessed the damages at 50 per cent i.e., 13,860 kgs and issued a joint survey report on 30-5-92. The value of the damage is Rs.49,342/-. According to the applicant, the damage to the consignment was only due to the gross negligence and misconduct on the part of the Railway administration and employees and also due to the defective wagon and delay. Further, the consignment was booked under railway risk rate; hence the respondent is bound to recoup the loss sustained by the applicant. The applicant sent a claim notice as required under Section 106 on 13-6-92 to the Chief Commercial Superintendent, Tiruchirapalli claiming damage. The respondents sent a reply repudiating their claim on 30-6-92. Therefore, the applicant filed O.A.I/1091/92 for recovery of a sum of Rs.49,342/- with future interest and cost before the Railway Claims Tribunal. The said application was heard along with another O.A.I/1090/92 by the Tribunal. The Tribunal has found that the applicant has got title to the consignment. It also found that weevil action is due to inherent defect/vice of the goods at the time of loading. Finally, the Claims Tribunal concluded that the applicant is entitled for 60 per cent of the damage and directed the respondent/Railways to pay Rs.25,904/- with interest at 12 per cent per annum from the date of application till realisation with proportionate costs. Contending that having found that the Railways have not used reasonable foresight and care, erred in attributing negligence on the part of the applicant, has filed the present appeal with reference to disallowed claim.

2. Heard Mr. T. Rajamohan, learned counsel for the appellant and Mr. V.G. Suresh kumar for the respondent.

3. The point for consideration in this appeal is, whether the applicant is entitled to the entire amount of Rs.49,342/- or to the extent of 60 per cent, as assessed by the Railway Claims Tribunal?

4. There is no dispute regarding title to the consignment and eligibility to file claim petition before the Railway Claims Tribunal. Now let us consider, whether the bags that were consigned, were damaged at the time of booking itself. In this regard, it is relevant to refer Section 98:-

"Section 98. Goods in defective condition or defectively packed.- (1) xx xx xx

(2) When any goods entrusted to a railway administration for carriage are found on arrival at the destination station to have been damaged or to have suffered deterioration, leakage or wastage, the railway administration shall not be responsible for the damage, deterioration, leakage or wastage of the goods on proof by railway administration,-

(a) that the goods were at the time of entrustment to the railway administration, in a defective condition, or were at that time either defectively packed or not packed in such manner as may be prescribed and as a result of which were liable to damage, deterioration, leakage or wastage; and

(b) that such defective condition or defective or improper packing was not brought to the notice of the railway administration or any of its servants at the time of entrustment of the goods to the railway administration for carriage by railway:

Provided that the railway administration shall be responsible for any such damage, deterioration, leakage or wastage i