Delhi High Court
Shri M.L. Malhotra vs Union Of India (Uoi) on 24 April, 2008
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog
JUDGMENT Pradeep Nandrajog, J.
1. Appellant had booked a consignment weighing 156 kg for carriage from Delhi to Rosa vide PWB No. 725423 dated 30.4.1987. The consignment reached Rosa on 9.5.1987 and at time of delivery it was noted that one wooden case was broken. Goods were stolen. The net weight of the consignment delivered was 108 kg. A damage and deficiency certificate was issued by the railway staff as mentioned in the open delivery report.
2. While delivering the consignment the appellant described the goods as hardware.
3. Valuing the goods which were lost at Rs. 75,239/- and claiming 10% sale tax stated to have been paid thereon and Rs. 100/- as packaging and forwarding charges appellant laid a claim in sum of Rs. 82,862.80 before the Railway Claims Tribunal.
4. In para 4 of the claim petition it was pleaded as under:
4. The goods did not reach the destination station in time and later on it was observed that the goods reached the destination station in broken condition and open delivery of the said goods were taken by the plaintiff on 20.9.87 and at that time it was found that there is a loss of Rs. 82862.80 on account of shortage. The open delivery certificate was issued to this effect. The following goods were found short and their value is detailed below:
S. Name of the Item Short Qty. Value.
No.
1. File - round 6? IInd cut 12 Doz- 4,800.00
2. File - round 10? IInd cut 6 Doz- 4,200.00
3. Plier r/nose 8? 17 Nos. 425.00
4. Vernier Caliper 12? 10 Nos. 15,100.00
5. HSS Covalt Bit 5/8? x 6?
x 10% Covalt Make I.T. 3 Doz 11,520.00
6. HSS/TST Drill Bit 25mm 10 Nos. 4,500.00
7. HSS/TST Drill Bit 1? 10 Nos. 4,700.00
8. HSS Covalt Bit 6? x 1/2?
x 10% Covalt 2 Doz 5,280.00
9. HSS Covalt Bit 3/8? x 4?
x 10% 5 Doz 8,100.00
10. CI Machineable Electrod 240 pcs. 7,680.00
11. CI Non-Machinerable
electrod 400 pcs. 4,800.00
12. High Steel Bar 1/2? and
5/8? x 18% Tungston 6 Kg. 1,500.00
13. Stainless Steel Foot Rule
12? 5 Doz 1,200.00
14. Plier Side cutting 8? 22 pcs. 550.00
15. Plier long nose 8? 28 pcs 700.00
16. Hammer 700 gram 6 pcs 90.00
17. Chisel Cold Flat 7? x 3/4? 9 pcs 90.00
18. Hammer Steel 115 grams 1 No. 4.00
Total 75239.00
Sales Tax 7523.90
Packing and Forwarding Charges 100.00
Total 82862.90
5. The Railway Claims Tribunal held that due to their act of negligence the railway authorities were responsible for the shortage of the goods weighing 48 kg. However, claim was denied on account of the fact the Tribunal treated as if the goods lost were vernier calipers. With reference to Section 77-B of the Railways Act 1890 the Tribunal held that a vernier caliper was a scientific instrument and hence to succeed, while delivering the parcel the appellant had to declare the value of the contents and on the value so declared pay additional money for the increased risk, which was not done.
6. According to the appellant the consignment being hardware no such declaration was required to be made or additional premium was required to be paid.
7. The Tribunal has dealt with the issue in paragraph 11 to 17 of its decision. The same reads as under:
11. The respondent has raised a very interesting point that this consignment consisted of 'excepted articles' and that the consignor had not disclosed the consignment as consisting of excepted articles and declared its value and further no percentage charges also had been paid for this consignment and that, therefore, the railway administration is not liable for payment of any compensation. The basic point raised is that 'vernier calipers' had been loaded in this consignment, that these are 'scientific instruments' coming under the purview of the Second Schedule of the Indian Railways Act, 1890 and as such attracted the provisions of Section 77-B of the Indian Railway Act, 1890, thereby making railways exempt from liability for the loss of any of the articles in the parcel.
12. Section 77-B of I.R.A., 1890 reads as follows:
77B. (1) Notwithstanding anything contained in the provisions of this Chapter, when any articles mentioned in the Second schedule are contained in any parcel or package delivered to a railway administration to be carried by railway and the value of such articles in the parcel or package exceeds five hundred rupees, the railway administration shall not be responsible for the loss, destruction, damage or deterioration of the parcel or package unless the person sending or delivering the parcel or package to the administration caused its value and its contents to be declared in writing or declared them in writing at the time of delivery of the parcel or the package for carriage by railway, and if so required by the administration, paid or engaged to pay in writing a percentage on the value so declared by way of compensation for the increased risk.
(Note: Scientific Instruments is included in the Second Schedule of Indian Railways Act, 1890 as Item 'Y' and mentioned as one of the 'articles to be declared and insured')
13. The sum and substance of the respondent's contention is, therefore, that the parcel which was offered to railway administration for carriage by the railway contained 'excepted articles' and the cost of the 'excepted articles' in this packet was Rs. 15,100/- (cost of ten vernier calipers had been claimed at Rs. 15,100/- by the applicant at the rate of Rs. 1510/- per vernier caliper), and that therefore, applicant's claim for compensation cannot be sustained and that railway administration cannot be held liable for payment of any compensation. This raises a very interesting point as to whether 'vernier caliper' is a 'scientific instrument'?
14. Applicant's counsel referred to a book 'Basic Fitter Guide' by Hazra and Chakravarty 1990 Edition, which deals with 'vernier calipers' to contend that this is only a mechanical instrument. A passage from this book reads as under:
When a liner dimension has to be measured to within +001? or +02mm an engineer's steel rule cannot be used with much confidence. However, a precision measuring instrument called a vernier caliper can be used ....
The vernier caliper is primarily intended for measuring inside and outside diameters of shafts, thickness of parts and also to check the depth of a hole etc. to an accuracy of +.02mm or +.001? by means of a vernier scale attached to the caliper.
15. It would be seen from the above that vernier caliper is a precision instrument used for gauging/measuring linear dimensions in a most accurate and precise manner and it is not a normal measuring instrument where precision and accuracy is not called for. This caliper is used generally in Physics Laboratories while conducting scientific experiments. Prima facie, vernier caliper, therefore, comes under the category of 'scientific instrument'.
16. The Tribunal also looked in this contention at meaning of 'instrument and scientific' in popular Dictionaries. The following observations, in this connection, are also relevant.
1. The Concise Oxford Dictionary Instrument means (a) A tool or implement esp. for delicate or scientific work.
(b) A measuring device Chambers Dictionary:-instrument is 'A tool or utensil for indicating/measuring/controlling....' (An apparatus).
2. (a) The word 'science' has been defined in Prem's Judicial Dictionary as under:
Science has been defined and interpreted by Judicial precedents to include 'all human knowledge' which has been generalised and systematised and has obtained methods/relations and the form of law. The term is applied whenever particular skill and judgment is to be applied to a particular subject as required to explain results or trace them to the causes.
(b) Concise Oxford Dictionary defines Science as 'systematic and formal knowledge of a special type or a specific subject i.e. which required skillful technique rather than strength or natural ability'. The word 'scientific' refers to 'investigation according to rules laid down in exact science for performing observations and testing the soundness of conclusions which have to be systematic, accurate'.
(c) Chamber's Dictionary defines 'science' as knowledge ascertained by observation and experiment, critically tested, systematised and brought under general principles.
17. A perusal of these dictionary meanings shows that where specially skilled effort is required for ascertaining a particular fact or making a particular observation in a matter, it becomes scientific. The tool for such delicate scientific work is instrument as defined in Concise Oxford Dictionary. Taking an overall objective view of these definitions and the use for which the vernier caliper is provided or intended, the Tribunal has absolutely no hesitation in holding that 'vernier caliper' definitely comes under the category of 'scientific instrument' and as such is an excepted article as covered by the provisions of second schedule of Indian Railways Act, 1890.
8. Learned counsel for the appellant, Mr. M.L. Bhargava, urged that a vernier caliper is an instrument of measurement and not a scientific instrument and hence urged that the appellant was not required to declare the value, much less pay additional charges for the increased risk. Alternatively, counsel urged that not all goods which were lost were vernier caliper. As pleaded in para 4 of the claim petition, vernier calipers were only 10 in number. Remaining goods were as detailed serial No. 1 to 3 and 5 to 18 of para 4 of the claim petition.
9. On the first plea urged, I am in agreement with the view taken by the Tribunal for the reason every scientific instrument would be an instrument but not vice versa. The distinction between an instrument and a scientific instrument would be as discussed by the Tribunal in para 15 and 16 of its decision.
10. However, the claim petition could not have been rejected in its entirety by treating the entire consignment lost to be vernier calipers. It appears that the Tribunal failed to note that vernier calipers which were lost were only 1 out of 18 goods which were lost.
11. The position therefore would be that claim of the appellant for recompense in respect of vernier calipers valued at Rs. 15,100/- has to fail inasmuch as admittedly these would be scientific instruments and under Section 77-B of the Indian Railways Act 1890, being scientific instruments, value thereof had to be disclosed at the time of delivery with additional risk premium to be paid.
12. Since the Tribunal has not dealt with the nature of the other goods, namely, whether they would be instruments or scientific instruments, matter has to be remitted to the Tribunal for further consideration with reference to specific pleadings in para 4 of the claim petition.
13. The appeal accordingly stands disposed of quashing the impugned order dated 17.1.1995 in OA-1-193/1990 insofar the entire claim petition has been dismissed. The order is upheld insofar it relates to rejection of the claim for vernier calipers valued at Rs. 15,100/- as also the sale tax relatable thereto. For the remaining items the claim petition is restored for fresh adjudication before the Tribunal.
14. Needless to state, the Tribunal would decide the issue of recompense by taking note of the description of the items which were lost as detailed in para 4 of the claim petition.
15. No costs.
16. TCR be returned forthwith.