This appeal arises out of the order dated 17.10.1996 passed by the Railway Claims Tribunal: Nagpur Bench Nagpur, in Claim Petition No.48/OA-1/RCT/NGP/92 whereby the appellant was directed to pay to the respondent a sum of Rs.48,310/- along with interest @ 9% p.a. on account of loss sustained by the latter.
2] The facts in brief are thus: the respondent â Maharashtra State Electricity Board, through Controller of Stores, Chandrapur Thermal Power Station, Chandrapur was the consignee of the consignment containing 600 bags of stable bleaching powder booked by M/s Chlorochem Industries Kota (Rajasthan) â cosignor. The consignment was booked on 15.3.1989 which reached to the destination in November, 1989 i.e. after about 8 months that too in a damaged condition. The respondent lodged claim with the appellant, but in vain. Therefore, the claim application was filed claiming damages of Rs.56,690/- towards value of the consignment.
3] The appellant filed written reply. The booking of the consignment and its non-delivery or delivery in a damaged condition is also not disputed. The defence set up by the appellant was that the wagons containing consignment arrived at Bhandak Station on 24.4.1989. On 26.4.1980 at 0600 hours the smoke was noticed in the wagon containing the consignment. All possible efforts were made to extinguish the fire immediately and it was brought under control at about 11=00 hours. According to the appellant the cause of the fire was due to chemical reaction of stable bleaching powder inside the closed wagon and because of high summer temperature. The cause of fire is also attributed to the fact that there was defective packing of the material. Non compliance of packing conditions led to ignition due to high atmospheric temperature inside the closed wagon.
4] Considering the rival claims the tribunal framed as many as six issues. The respondent examined two witnesses. No witness was examined on behalf of the appellant. However, the report of the enquiry committee was placed on record to suggest that fire was caused purely because of chemical reaction of the substance i.e. the stable bleaching powder and there was no negligence of any kind on the part of the Railway Officers.
5] Learned counsel for the appellant advanced two submissions. Firstly, the appellant was not given an opportunity to cross-examine the witnesses examined by the respondent, so also to lead evidence in rebuttal. Secondly, there is no proof of the fact that owing to negligence of the appellant the wagon containing consignment caught fire. According to him in case of damages due to fire, the railway administration is exempted from making good the loss and for that he relied upon the provisions of section 73(i) of the Indian Railways Act 1989.
6] Mr. Dube, the learned counsel appearing for the respondent supported the order passed by the Tribunal.
7] The first ground that appellant was denied opportunity of being heard can well be answered by perusing the entries in the order-sheet / Roznama. Entries therein show that after parties completed their pleadings, issues were settled. For the first time on 8.2.1993, the case was fixed for recording evidence. Thereafter, the matter was adjourned from time to time on many occasions owing to absence of the Bench. Thereafter on request of the respondent summons was issued to the witnesses. Again the matter was adjourned from time to time for recording of evidence. Evidence on affidavit was filed by the respondents. 25.9.1996 was the last date fixed for recording of evidence of the respondent / appellant herein. Nothing was done on 25.9.1996. On l 7.10.1996 both the parties prayed for time for argument. On 8.10.1996 arguments were heard. On 17.10.1996 the order impugned was passed. It is thus obvious that at no point of time, the appellant prayed for an opportunity to cross-examine the witnesses examined by the respondents. At the end when the case was specifically fixed for recording their evidence, no witness was examined. On the date when the arguments were heard, no time was prayed for examining any witness. This being the state of affairs, now it does not lie in the mouth of the appellant to contend that sufficient opportunity of proving the defence was not given to them.
8] As regards the defence of improper packing, it appears to be an afterthought. Exhibit P-3 is the Inspection Certificate issued to the cosignor at the time of booking of the consignment. Under the column of description of stores, it is mentioned that âStable beaching powder conforming to IS:1065/71 (I-revision) Grade -2 reaffirmed M.T. 1978 with Amdt. No.I of Nov. 1981 packed in 25 Kgs. HDPE Bags ISI marked. Item inspected no. One onlyâ In the remarks column it is mentioned that âAccepted stores in bags sealed thus:â. Till the written statement was filed no such defence was raised. After the delivery of damaged consignment, parties entered into correspondence which began sometime in 1989 December. In response to the correspondence made by the respondents on 13.2.1990 the appellant sent reply. It was mentioned that after proper assessment of damages the further steps would be taken. Then there are exchange of more correspondence till the service of the notice dated 13.2.1990 upon the appellant. During this period and at no point of time, it was stated that there was defective packaging or packing did not conform to the standard required to be observed while packing goods like stable bleaching powder. Therefore, the Tribunal was justified in negativing the defence of improper packing of consignment by the respondent.
9] Section 73 of the Indian Railways Act 1890 casts responsibility upon the railway administration as carrier of animals and of goods, for the loss, destruction, damage, deterioration or non delivery, in transit of goods except in an events like act of god, act of war, fire, explosion or any unforeseen reason. There is a proviso to section 73 which is relevant. It reads thus:
âProvided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid caused, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods.â
10] It connotes that liability of the railway administration does not come to an end whenever, there is a loss, destruction or damage to the goods arising from the causes like fire. To put it differently, loss, destruction damage due to fire does not relieve the railway administration of its liability to make good the loss. There is further proviso to this i.e. responsibility of the railway administration to prove that it has used reasonable foresight and care in the carriage of goods. Where the damages cannot be attributed either to defective condition of the goods or the defective packing of the goods, primary onus of bailee to show that he had taken such care of goods as a common man with ordinary prudence would take in the case of his own goods, must be discharged by the railways. It is pertinent to note that nothing was in the knowledge of the cosignor or consignee. Therefore, the initial onus is on the railway to prove the extenuating circumstances to escape from the claim of damages, although the damage or destruction was due to fire. The condition of the wagon and how the consignment was dealt with during the transit being the matter within its special knowledge, railway administration has to unfold these factual aspects. Since no evidence to this effect has been adduced by the appellant, it cannot be held that they have discharged onus of proving that it had used reasonable foresight and care in the carriage of goods and still the fire occurred. That being so, there is no scope to interfere with the order impugned.
11] The appeal fails and is dismissed accordingly.
However, there shall be no order as to costs.