Full Judgment
(1) M.A. No.1196/2003 HIGH COURT OF M. P. JUDICATURE AT JABALPUR Single Bench : Hon'ble Shri Justice A.K. Shrivastava Misc. Appeal No.1196 / 2003 Appellant Shri Krishna Kumar Sethi, S/o. Shri Bholaram, R/o. Ashoka Garden, 292-B, Bhopal (M.P.) Vs. Respondent: Union of India, Through General Manager, Central Railway, CST Mumbai _______________________________________________________ Ku. Surabhi Ahirkar, Advocate for appellant. Shri N.S. Ruprah, Advocate for respondent. _______________________________________________________ JUDGMENT
(Delivered on this 21st day of November, 2012) Feeling aggrieved by the judgment dated 14.03.2003 passed by Railway Claims Tribunal Bhopal Bench in Case No.166/2000 dismissing the claim application of appellant, this appeal under Section 23 of the Railway Claims Tribunals Act, 1987 has been filed.
2. In brief the case of appellant is that he booked 5 consignments of lemon in 35 bags weighing 516 Kg from Bhopal to Gorakhpur vide P.W. Bill No.526529, 526530 and 526531 dated (2) M.A. No.1196/2003 15.08.1999 and P.W. Bill No.526570 and 526578 dated 16.08.1999. According to claimant on account of carelessness, negligence and misconduct on the part of the respondent Railway Administration the lemons were not only delivered 30 kg less in weight but also the remaining 486 kg were was found to be rotten and unfit for human consumption at destination due to transit delay and mishandling the goods. Thus, the claimant/appellant claimed compensation of `13,159/-. Requisite notice under Section 106 of the Indian Railways Act 1989 (in short Railways Act) was served upon Railway Administration before filing claim application but claim has not been settled by the respondent, hence present application before the Railway Claims Tribunal was submitted by the appellant.
3. The written-statement was filed on behalf of Railway Administration and according to the pleadings a false and bogus claim has been filed. A point of jurisdiction was also raised that Bhopal Bench of Railway Claims Tribunal is not having territorial jurisdiction. On merits it has been submitted that consignments was delivered to the appellant on 19.08.1999 under the clear signatures at destination without any undue delay in transit. Hence, it has been prayed that claim application be dismissed.
4. Learned Claims Tribunal framed necessary issues and after recording evidence of the parties, dismissed the claim application of the appellant. In this manner, this appeal has been (3) M.A. No.1196/2003 filed by the appellant.
5. I have heard Ku.Surabhi Ahirkar learned counsel for appellant and Shri N.S. Ruprah, learned counsel for respondent and having heard them, I am of the view that this appeal deserves to be allowed.
6. On bare perusal of the claim application filed on behalf of appellant it is gathered that there is specific pleading that appellant booked 5 consignments of lemon in 35 bags weighing 516 Kg from Bhopal to Groakhpur vide P.W. Bill No.526529, 526530 and 526531 dated 15.08.1999 and P.W. Bill No.526570 and 526578 dated 16.08.1999. According to claimant on account of carelessness, negligence and misconduct on the part of the respondent Railway Administration was not only short delivery of 30 kg in weight of the lemons but also the remaining 486 kg of lemon was found rotten and unfit for human consumption at destination due to transit delay and mishandling the goods. The appellant paid super express charges amounting to 20% in additional to freight charges for carriage of the goods by the first available passenger/express train as the lemon is a highly perishable commodity. But the said consignment was dispatched after 3 days from the date of booking and was sent on 17.08.1999. The goods were first unloaded at Jhansi and after one day it was sent from Jhansi to Gorakhpur, as a result of which, it reached the destination only on 19.08.1999. Specific pleadings of (4) M.A. No.1196/2003 the appellant is that had the goods been sent in direct train, it would have reached the destination latest by 16.08.1999 but since it was sent little late and that too not by a direct train therefore on account of negligence on the part of Railway Administration, the same became unfit for human consumption. The claimant further pleaded that compensation should be paid @`30/- per kg of the cost of lemon. It has also been pleaded that weight of lemon which was booked vide P.W.Bs.No.526570 was having weight of 70 kg but delivered weight was 60 kg i.e. 30 kg (in total) short and thus the claimant has claimed the compensation to the tune of `13,159/-.
7. I have gone through the written-statement filed on behalf of Railway Administration but according to me except that under clear signature the claimant obtained the consignments, therefore, Railway Administration is not liable to pay any compensation, there is nothing contrary on record. Further objection of territorial jurisdiction has also been raised. However, the specific material pleadings of claimant have not been denied in the written-statement. Factual aspects of the matter are not in dispute looking to the pleadings of the parties. As per the claim application the appellant deposited super express charges amounting to 20% charge to the freight charges so that it may be sent by first available train. Admittedly, they were not sent on the same day but were sent after three days from the date of booking as they were sent on 17.08.1999 and that too not by a direct train, as a result of which, it reached the destination on 19.08.1999. Had the (5) M.A. No.1196/2003 consignment been sent on the same day that too by direct train, certainly it would have reached latest by 16.08.1999. Looking to the documents on record and the affidavits of the parties, it is proved that the consignment was received at Gorakhpur with short delivery there is short weight of 30 kg (in total) of lemon. Thus, I am of the view that claimant has successfully proved his case and learned Tribunal on the basis of perverse grounds has rejected the claim application.
8. Apart from this on bare perusal of page 30 of the record of Tribunal this Court finds that a letter dated 15.09.1999 is there addressed to appellant written by Shri B.L. Pawar Divisional Railway Manager (C) Bhopal that erring employee who did not load the consignment of Lemon in the direct train against him action is being taken and he has sought apology in that regard on behalf of Railway Administration. Thus, I am of the view that impliedly respondent is admitting the claim of the appellant.
9. So far as the territorial jurisdiction part is concerned, suffice it to say that consignment was booked at Bhopal and therefore Railway Claims Tribunal Bhopal has jurisdiction.
10. Another objection has been taken by Shri Ruprah, learned counsel for respondent that under Section 74 of the Railways Act the property in the consignment covered by the Railway receipt shall pass to consignee or endorsee on the delivery of such railway receipt to him and he shall have all rights and liabilities of consigner. (6) M.A. No.1196/2003 In this regard specific objection has been taken in para 16 & 18 of the written statement. Further it has been argued by learned counsel for respondent this has also been admitted by claimant in his affidavit and therefore claim application should have been rejected on this count. However, Ku. Surabhi Ahirkar learned counsel for appellant submits that having sent the letter of apology, this objection has been wiped out by the Railway Administration. I do not find any merit in this contention for the simple reason that once having admitted the fault by Railway Administration and apology has been tendered, this objection is wiped out.
11. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of Railway Claims Tribunal Bhopal is hereby set aside and claim application of appellant is allowed and it is hereby held that respondent is liable to pay compensation to the tune of `13,159/- (Rupees Thirteen Thousand, One Hundred and Fifty-nine) to the appellant. No costs. (A.K. Shrivastava) Judge SS