JUDGMENT :

PANKAJ JAIN, J.

1. Appellant is in appeal agreed of the order passed by Railway Claims Tribunal, Chandigarh Bench, Chandigarh dated 26.05.1999.

2. The appellant filed a claim application before the Tribunal seeking recovery of Rs.9,23,498/- as compensation from the respondent railways on account of damage to the consignment comprising 147 bales of B.Twill gunny bags, dispatched by respondent No.3 through the railways vide railway receipt No.320128 dt. 22.03.1994 from ex. Kakinada to Faridkot at railway risk rate. The consignment as per the claimant was loaded in wagon No.26950 under the supervision and in presence of the railway staff. The consignment was received at Faridkot on 04.05.1994. The entire consignment was completely burnt and damaged. A request was made by the claimant for assessment which was deliberately avoided by the railway authorities. Claimant claimed that it is under the aforesaid circumstances that he refused to take delivery of the consignment vide letter dated 19.07.1994. Statutory notice as required under Section 106 of the Railway Act, 1989 (for short, ‘the 1989 Act’) was served and a claim amounting to Rs.9,23,498.83 was raised. Claimant claims that the lawful claim was illegally rejected and the consignment was put to auction and was sold for Rs.1,03,350/- which was adjusted against wharfage amount of Rs.3,82,366/-. Claimant accordingly seeks decree of Rs.9,23,498/- along with interest @ 18% per annum from the date of booking of the consignment till the actual realization of the amount. 

3. Claim petition was contested by railways. Booking of the consignment is admitted. Damage to the consignment is also not disputed. However, it is claimed that the consignment in question caught fire at Tuglakabad on 09.04.1994. All efforts were made to extinguish the fire and accordingly it was claimed that the consignment was not fully damaged as alleged. The railways sought to take shelter under Section 93(i) of the 1989 Act and claimed exemption from liability. Rather, the railways claimed that the appellant wrongfully refused to take consignment which is in violation of the mandate of Section 82 of the 1989 Act and is thus liable to pay wharfage charges amounting to Rs.3,82,366/-. The auction of the consignment having fetched amount of Rs.1,03,350/-, the claimant is still liable to pay an amount of Rs.2,78,866/-.

4. Claim of the appellant was put to trial by the Tribunal framing following issues :-

“1. Whether the present claim application has been filed by a competent and authorised person?

2. Whether the applicant is entitled to the claimed amount as mentioned in the claim application?

3. Whether the railway administration is protected u/s 93(i) of the Railways Act, as mentioned in the written statement? OPR

4. Whether the applicant refused to join the assessment and refused to take delivery of the consignment? if so, its effect. OPR

5. Relief.”

5. While returning finding on issue No.3, Tribunal found that the Administration is not entitled to protection under Section 93(i) of the 1989 Act and decided the issue in favour of the claimant and against the railway Administration.

6. While deciding issue No.4 Tribunal, however, held that the consignee had no right to refuse to take the delivery and thus was at fault.

7. While deciding issue No.2 Tribunal held the claimant entitled to recovery of Rs.1,03,500/- holding that the wharfage charges can be recovered by the railway Administration.

8. Learned senior counsel appearing for the appellant has assailed the findings recorded by the Tribunal. He submits that even though railway Administration has been denied refuge under Section 93 of the 1989 Act. Tribunal instead of decreeing the claim of the appellant for 100% loss to consignment, erred in holding him entitled to a claim of Rs.1,03,500/- only. He contends that the railway Administration having invoked Section 93 of the 1989 Act, the damage to the consignment is admitted. In these facts the appellant was entitled