V. Dhanapalan, J.

1. This Civil Miscellaneous Appeal, preferred by the Union of India owning Southern Railway, is directed against the order dated 07.02.1997 passed by the Railway Claims Tribunal, Chennai Branch in O.A.I. No. 263 of 1996.

2. The respondent herein (Annapurna Agency) was the applicant before the Tribunal. Since a consignment of 248 bags of wheat, each weighing 96 kgs. sent to Annapurna Agency from Barnala to Royapuram vide R.R. No. 806418 dated 06.09.1994, through the appellant herein (Railways) was found damaged at the point of destination, it made a claim to the Railways and since the claim remained unsettled, it filed an Application before the Tribunal claiming a sum of Rs. 40,283/- as compensation from Railways. On its side, 4 exhibits, namely, Ex.A.1, Joint Survey Report, Ex.A.2, Claim under S.106, Railways Act, Ex.A.3-Repudiation and Ex.A.4-Copy of pattial were marked as documentary evidence and no one was examined. On the side of the Railways, the Railway Receipt and D. Message were the two documents marked and on the side of the Railways also, no witness was examined.

3. The Tribunal, on an analysis of the documentary evidence and the facts and circumstances of the case, held that the Railways was at fault for the damage and delay caused to the consignment and awarded a compensation of Rs. 40,283/- as claimed by Annapurna Agency.

4. Mr. V.G. Suresh Kumar, learned Counsel for the appellant Railways has contended that:

a. the damage, if any, was due to loading of already damaged consignment and non-compliance of prescribed packing conditions and non-provision of standard size dunnage by the consignor at the forwarding station and not due to any lapse on the part of the Railways which exercised reasonable foresight and care in the carriage of goods;

b. a qualified Railway Receipt was issued by endorsing that the wagon which carried the consignment was a water-tight one and the consignment was loaded directly from truck to wagon and the process of loading was not supervised by the railway officials and such qualified Railway Receipt will absolve the Railways from any liability; and

c. in any event, the award of Rs. 40,823/- with Interest @ 12% per annum is liable to be interfered with.

5. It is the further contention of the learned Counsel for the appellant Railways that:

a. the finding of the Tribunal that in the absence of Forwarding Note, the remarks made in the Railway Receipt with the standard rubber stamp seal cannot be used, is erroneous; and

b. the stand taken by the Tribunal that if the consignment was already damaged at the loading point, the Railway staff therein would have made a remark to that effect in the Railway Receipt, cannot be sustained since the consignment was loaded directly from truck to wagon and the process of loading was not supervised.

6. Per contra, Mr. T. Rajmohan, learned Counsel for the respondent herein has contended that:

a. the remarks found in the Railway Receipt are made by making use of standard rubber-stamp seal and hence, the same cannot be taken congnizance of;

b. the wagon, on its arrival, was found to be both non-NIKOLO and non-BSR indicating that there was interference to it en-route and there was inordinate delay in transit and

c. the Railway Receipt was not bearing any adverse remarks as to the nature of the consignment and damage to the consignment should be attributed to intrusion of water into the wagon, which is not a water-tight one.

7. The learned Counsel for the respondent, in support of his contention that standard rubber stamp seal found in the Railway Receipt cannot be taken cognizance of, has relied on a decision of a Division Bench of this Court reported in in the case of Kedarnath Jagdish Rai and Anr. v. The Union of India owning Southern Railway, represented by its General Manager, Madras (Kedarnath Jagdish Rai case) and the relevant lines read as under: (para 27).The Tribunal below, to a larger extent, commented against the Railways for the non-production of Forwarding Note and proceeded a step further in drawing adverse interference in this respect while pointing out that on the Railway Receipts, standard rubber stamp seal alone has been affixed. As standard rubber stamp seal has been affixed on the Railway Receipts, it has been rightly pointed out by the Tribunal that no importance could be attached to such remarks. Having held so, the Tribunal below, as has been rightly contended by the counsel for the appellants, should have recorded a finding that the Railways were negligent and their negligence is the direct cause for the damages and more so, the inordinate delay in transit, has not even been explained.

8. Heard both sides.

9. As the Tribunal has rightly framed the issues for trial, the main points which emerge for consideration in this appeal are:

a. whether the damage was due to loading of already damaged consignment, non-compliance of prescribed packing condition and non-provision of standard size dunnage by the sender at the forwarding station;

b. whether the Railways used reasonable foresight and care in the carriage of the goods; and

c. whether the applicant is entitled to any compensation and if so, to what extent.

10. Before considering the above issues, it would be proper for this Court to refer to Sections 64 and 93 of the Railways Act, 1989 and they are as follows:

Section 64 Forwarding Note

1. Every person entrusting any goods to a railway administration for carriage shall execute a forwarding note in such form as may be specified by the Central Government

Provided that no forwarding note shall be executed in the case of such goods as may be prescribed.

2. The consignor shall be responsible for the correctness of the particulars furnished by him in the forwarding note

3. The consignor shall indemnify the railway administration against any damage suffered by it by reason of the incorrectness or incompleteness of the particulars in the forwarding note.

Section 93 General responsibility of a railway administration as carrier of goods:

Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage or deterioration in transit, or non-delivery of any consignment, arising from any cause except the following namely: - ....f. act of omission or negligence of the consignor or the consignee or the endorsee or the agent or servant of the consignor or the consignee or the endorsee;

g. natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods;

11. It may also be useful to refer to certain Sections in the Railways Commercial Manual which are as under:

Section 123 Declaration of goods

1. Every consignment of goods, when handed over to the Railway for despatch, must be accompanied by a Forwarding Note, which must be signed by the sender or his authorised agent, and must contain a declaration of the weight, description in accordance with Section 66 of the Railways Act, 1989 and destination (Station and Railway on which situated) of the goods consigned, and indicate in the column provided for this purpose, the route by which the goods are to be booked, as provided for in Rule 125. In the absence of any such instructions as to the route by which the goods are to be booked, the goods will be despatched by the correct route according to the rules for the routing of goods for the time being in force.

2. Printed forms of the Forwarding Note are available at all goods booking stations on application to the Station Masters or Goods Clerks. The forms of Forwarding Notes specified by the Central Government in accordance with Section 64 of the Railways Act, 1989 are shown in Annexure 'A'.

3. Merchants and traders must satisfy themselves that their packages are properly addressed and their Forwarding Notes correctly written out, as the Railway accepts no responsibility as to accuracy in either case and will hold senders liable for any mistake or mis-declaration.

Section 902 Execution of forwarding notes

a. When parcels tendered for booking contain articles of any of the following categories, they must be accompanied by a forwarding note in the appropriate form, duly executed by the sender or his authorised agent:

i. articles to be carried at owner's risk rate;

ii. articles of a perishable nature;

iii. articles mentioned in Part I of Schedule II of the Railways (Extent of Monetary Liability and Presumption of Percentage Charge) Rules, 1990;

iv. articles not packed in accordance with the prescribed conditions or articles in a defective condition;

v. explosives and other dangerous goods.

12. Having dealt with the relevant provisions in the Railways Act and Railways Commercial Manual, let me now proceed to discuss the points for consideration which have emerged in this appeal.

13. The fact that 248 bags of wheat were forwarded from Barnala to Royapuram, Madras under R.R. No. 806418 is not disputed. It is also not under dispute that Annapurna Agency applied for open delivery since the cargo was found in a damaged condition and accordingly, open delivery was granted. The joint-survey report, marked as Ex.A.1 would disclose that 79 bags were gunny wet, dried, contents clotted, discoloured, emitting bad smell and the damage was assessed at 50%. It would further disclose that 146 bags were gunny wet, dried and burst, contents insect with cakes and discoloured emitting bad smell and the damage was assessed at 40%. The balance 18 of the damaged bags were delivered under clear receipt and in all, the damage proper has been arrived at 8,138 kgs.

14. Though the counsel for the appellant Railways has contended that the remarks found in the qualified Railway Receipt to the effect that the wagon was jointly examined by consignor with Station Superintendent and was found fit and loading was not supervised since the consignment was delivered directly from the truck to wagon would absolve the Railways of its liability, as rightly pointed out by the Tribunal, the appellant has failed to produce the Forwarding Note, the importance of which has already been emphasized above in the Railways Act, 1989 and the Railways Commercial Manual. Further, the remarks in the Railway Receipt were by the use of a standard rubber stamp seal which does not carry any credence as per paragraph No. 27 of the Division Bench judgment of this Court in Kedarnath Jagdish Rai case (supra) relied on by the counsel for the respondent. That apart, had there really been any damage to the consignment at the time of loading, the said fact would find a specific mention in the Railway Receipt but that is not the case here.

15. Further, I am of the view that the contention of the counsel for the appellant that damage is attributable to (i) non-compliance of prescribed packing condition and (ii) non-provision of dunnage, cannot hold good. This is because in the first case, such a failure would result only in shortage but not in damage by wet condition and in the latter case, as is commonly agreed, dunnage is provided only to prevent pilferage and not to avoid damage by wet conditions. Though Ex.B.1, the Railway Receipt says that the wagon was jointly examined by the consignor with Station Superintendent, it does not specifically say that the wagon is a water-tight one. If at all it was an water-tight one, to substantiate its contention, the Railways could have very well produced the TXR Certificate of both forwarding station and destination point but it has miserably failed in that regard. From this, what can be inferred is that there was intrusion of rain water into the wagon and consequent damage to the consignment. Another point to be noted in this connection is that the consignment which was booked on 06.09.1994 in Barnala has reached Madras only on 03.12.1994 and this inordinate delay of nearly three months has not been explained by the Railways. This delay is corroborated by Ex.B-2, the D-Message which shows that the wagon was neither NIKOLO nor BSR. This makes it clear that there has been interference of the wagon en-route. Due to this inordinate delay, there is a certain possibility of damage to cargo by weevil action and this factor too should have contributed for the damage to the cargo. Even this point is also substantiated in the very same paragraph No. 27 of the Kedarnath Jagdish Rai case (supra).

16. In view of my above discussion and the ruling of the Division Bench of this Court relied on by the respondent's counsel and the provisions of the Railways Act and Railways Commercial Manual, the contention of the appellant that the consignment was already damaged and even damage, if any, is the result of non-compliance of prescribed packing condition and non-provision of standard size dunnage, cannot be accepted and the finding of the Tribunal in this aspect is confirmed.

17. Secondly, to answer the point whether the Railways exercised due care and diligence as regards the carriage of goods, since it has already been discussed that the wagon used for carriage of goods was not an water-tight one and hence, there was intrusion of rain water into the wagon and consequent damage to goods, it is all clear that the Railways has failed in its duty to deliver possession of the goods to the consignee in 'as is where is basis'. That apart, as already found, the inordinate delay of about three months in delivering the consignment also has not been explained by the Railways. Taking these two factors into consideration, I have no other option except to confirm the finding of the Tribunal in this regard.

18. Coming to the point of award of compensation, as per Ex.A.1, the Joint Survey Report, the damage proper has been assessed at 8,138 kgs. Ex.A.4, pattial shows the rate per quintal (100 kgs.) as Rs. 495/- which is nothing but Rs. 4.95/- per kg. Thus, when 8,138 kgs. is multiplied by Rs. 4.95, the value of wheat comes to Rs. 40,283.10 which is rounded off to Rs. 40,283/-. Thus, in all fairness, the award of compensation determined by the Tribunal cannot be found fault with and accordingly, it is also confirmed.

In the light of what has been stated above, the impugned order dated 07.02.1997 passed by the Tribunal is upheld and accordingly, the appeal preferred by the Railways challenging the same fails and is dismissed without any order as to costs. Consequently, connected C.M.P. No. 2668 of 1998 is also dismissed.