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M/s. Ambika Fashion Pvt. Limited Chennai v/s Union of India represented by the General Manager Chennai

    CIVIL MISCELLANEOUS APPEAL NO.480 of 2003

    Decided On, 03 March 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE C.S. KARNAN

    For the Appellant: No Appearance. For the Respondent: T.S. Raja Mohan, Advocate.



Judgment Text

(Prayer:- This appeal is preferred against the order dated 12.12.2002 on the file of the Railway Claims Tribunal, Chennai Bench, allowing in part awarding a sum of Rs.6,600/- to the appellant as compensation.)

1. The above appeal has been filed by the appellant against the order dated 12.12.2002 made in Case No.9700285 of 1997 on the file of the Railway Claims Tribunal, Chennai Bench, allowing in part by awarding a sum of Rs.6,600/- to the appellant as compensation.

2. Having not been satisfied with the said award, the appeal has been filed.

3. The short facts of the case, are, as follows:-

(i) A consignment of art silk sarees weighing approximately 118 kgs. was entrusted to the Southern Railway for carriage and the same was booked in the break van of Navjeevan Express, Train No.6045, on 24.01.1997 as per R.R.No.315996 from Surat to Madras Central. The Railway Receipt was booked for the declared value of Rs.1,70,000/- and freight charges of Rs.920/- was paid to the respondents. The applicant was shocked to note that two bales of art silk sarees out of six bales were missing. Immediately, the applicant issued a notice dated 31.01.1997 complaining about the loss of two bales. Since the claim was not settled, the applicant filed the Case No.9700285 of 1997 claiming compensation of Rs.62,907/- under various heads together with interest at the rate of 18% per annum from 24.01.1997 till recovery with costs.

(ii) The respondent has resisted the above claim. In his reply statement, the respondent while admitting the booking of the consignment, has denied the service of valid notice under Section 106 of the Railways Act. The applicant has not paid any percentage charge on value at the time of booking nor restricted under Section 103 of the Railways Act. The applicant is not entitled for any indirect or consequential loss under Section 102(d) of the Railways Act. The Railway is not liable to refund the proportionate freight charges and interest at the rate of 18% per annum. In view of the above, the respondent prays to dismiss the application.

(iii) Based on the above contentions of the parties, the following issues were framed by the Railway Claims Tribunal, for determination:-

'1. Whether there was valid claim under Section 106 of Railways Act, 1989?

2. Whether the railways are absolved of its liability for any indirect or consequential loss under Section 102(d) of the Railways Act, 1989?

3. Whether the Railways used reasonable foresight and care in the carriage of the goods?

4. Whether the applicant is entitled to any compensation and if so, whether it is liable to be restricted under Section 103 of the Railways Act, 1989 read with Rule, 3 Sub Rule (iii) of the Railways (Extent of Monetary Liability and Prescription of Percentage Charge) Rules, 1990?

5. What reliefs the applicant is entitled to?'

(iv) Under Ex.A.3, the applicant has intimated the Parcel Officer regarding the shortage. This is deemed to be a valid Claim Notice under Section 106(2) of the Railways Act, 1989. Hence, the first question is answered in the positive.

(v) Under Section 102(d) of the Railways Act, 1989, a railway administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any consignment for any indirect or consequential loss or damage or for loss of particular market. Hence, the second question is answered in affirmative.

(vi) The Joint Survey Report as in Ex.B-4 clearly admits non-delivery of 132 kgs. and to that extent, the Railway is liable. The third question is answered accordingly.

(vii) The liability of the Railway Administration is restricted under Section 103 of the Railways Act for non-delivery of the consignment unless the value of such consignment is declared and the percentage charges paid as per Section 103 (2). In Exs.B-1 and B-2, the value of the consignment has been declared. Though, it has been endorsed on the Railway Receipt, Ex.B-2 that the value has been declared as Rs.1,70,000/- and endorsement made that the percentage charge has been paid, actually only Rs.920/- has been collected which is only the freight charges. The Presenting Officer has now submitted a letter from the Rates Section showing that the percentage charges leviable for the said consignment under Parcel Way Bill No.315996, dated 24.11.1997 is Rs.1,502/-.

(viii) In the Joint Survey Report, Ex.B-4, the shortage has been admitted as 132 kgs. Hence, the liability of the railways is restricted under Section 103 of the Railways Act at the rate of Rs.50/- per kg. Therefore, the applicant is entitled to a compensation of Rs.6,600/-.

(ix) The fifth question is answered that the respondent shall pay a sum of Rs.6,600/- to the applicant together with interest at the rate of 6% per annum from the date of application till recovery. Parties to bear their own costs.

4. Learned counsel appearing for the appellant argued that the consignment was declared as Rs.1,70,000/- and freight charges of Rs.920/- was paid to the Railway. The learned counsel further argued that the consignment of Art Silk Sarees had been purchased from Simple Silk Mills, Surat, as six bales of textiles. The same was booked with the Railways and Railway Receipt No.315996, dated 24.01.1997 was issued as acknowledgment. Out of six bales, four were delivered, two bales were not delivered. The said goods was booked on 24.01.1997, in the break van of Navjeevan Express, Train No.6045, as per Railway Receipt No.315996, from Surat to Madras Cental.

5. The learned counsel further argued that the total value of the six bales was a sum of Rs.1,70,000/-. The shortage of two bales, containing Art Silk Sarees, weighing 118 Kgs. was lost in transit. The value of the goods lost is Rs.52,365/-. In order to prove the weight of the goods, number of bales and kind of goods, the applicant had produced invoice and bills, Railway Receipt and gate pass and these were marked as exhibits P1 to P6. After establishing the case, the Railway Claims Tribunal had allowed in part, stating that the applicant is entitled to receive a sum of Rs.6,600/- for non-delivery of two bales, weighing about 132 kgs. For every Kilogram cost, during transit, the Railway is liable to pay only Rs.50/- as per Section 103 of the Railways Act, 1989 and that the applicant is not entitled to any indirect or consequential loss or damage or for loss of particular market under Section 102(d) of the Railways Act, 1989. The learned counsel further argued that the Railway had categorically admitted that two bales of Art Silk Sarees were not delivered. Sales tax for the entire goods loaded on the train had already been paid. This clearly proves that the applicant is a bonafide merchant and his purchase and selling of goods are subject to taxation of the Government. So, the applicant's claim is a bonafide one.

6. Learned counsel for the Railway argued that as per Section 103 of the Railways Act, 1989, the Railway is liable to pay only Rs.50/- for the shortage of 1 Kg. The same was well considered by the Railway Claims Tribunal for granting compensation. As such there is no discrepancy in the order passed by the Railways.

7. On considering the facts and circumstances of the case and arguments advanced by the learned counsel on either side and on perusing of the impugned order of the Railway Claims Tribunal, this Court is of the considered view that as per Exs.P1, P2, P3, P4, P5 and P6, which are invoices and bills for purchasing the goods and Ex.P5 is the Railway Receipt, it is clearly proved that the applicant had booked six bales of textiles from Surat to Madras Central on 24.01.1997 as per Railway Receipt No.315996. As such, the Railway is liable to deliver six bales of textiles at Madras. Instead of that, the Railway has delivered only four bales of the textile sarees. The shortage of two bales has been admitted by the Railway. As such the value of the goods is to be calculated and paid to the applicant as per valid invoice and bills. If this is followed, the applicant will not be prejudiced. If the Section 103 of the Railways Act, 1989, is applied in the instant case, the applicant, who has already paid the goods value to the vendor and the corresponding sales tax to the Government will suffer pecuniary loss in his business transaction. Such a person should be adequately compensa

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ted for the loss as per the facts of the case. 8. Therefore, the applicant is entitled to receive his claim amount of a sum of Rs.62,907/- with interest at the rate of 6% per annum from the date of application till the date of recovery of amount, as this is found to be fair and equitable. 9. Therefore, this Court directs the respondent/Southern Railway to deposit the compensation amount as mentioned above, after deducting the part award amount of the Railway Claims Tribunal, into the credit of Case No.9700285 of 1997, on the file of the Railway Claims Tribunal, Chennai Bench, within a period of six weeks from the date of receipt of this order. 10. In the result, the above Civil Miscellaneous Appeal is allowed. Consequently, the order dated 12.12.2002, made in Case No.9700285 of 1997, on the file of the Railway Claims Tribunal, Chennai Bench, is modified. Accordingly ordered. There is no order as to costs.
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