Allahabad High Court
Union Of India vs M/S Indian Oil Corporation on 14 February, 2013
Equivalent citations: AIR 2013 ALLAHABAD 144, 2013 (5) ALL LJ 179, (2013) 127 ALLINDCAS 289 (ALL), (2013) 5 ADJ 363 (ALL), 2013 (5) ADJ 363, (2013) 97 ALL LR 814, (2013) 3 ALL WC 3039, (2013) 3 CIVLJ 635
Author: Rajes Kumar
Bench: Rajes Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 5 Case :- FIRST APPEAL FROM ORDER DEFECTIVE No. - 182 of 2003 Petitioner :- Union Of India Respondent :- M/S Indian Oil Corporation Petitioner Counsel :- Anand Kumar Respondent Counsel :- Prakash Padia ********** Hon'ble Rajes Kumar,J.
Heard Sri Anand Kumar, learned counsel for the appellant and Sri Prakash Padia, appearing on behalf of the respondents.
By means of the present Appeal, the appellant is challenging the order dated 5th December, 2002, passed by the Railway Claims Tribunal awarding a sum of Rs.92,614/= towards compensation for shortage in the consignment booked by the respondent.
There is no dispute that the respondent has loaded the consignment in seven tanker wagons at its private site and put seals on such tanker wagons. The railway's receipt no. 189838, dated 1.8.1991 was issued in respect of the consignment sent through the tanker wagons. In the railway receipt, the quantity of the consignment was mentioned. At the destination of delivery, it was found that both the top and bottom seals of one of the tanker wagons were missing and on a joint dip taken for measurement by the representative of the respondent and the railways, shortage of 6824 Litres of Motor Spirit was deducted. A notice under Section 106 of the Railway Act was given and thereafter a Claim Petition was filed.
The Tribunal has allowed the claim of the respondent on the ground that the movement of the goods was at the railway's risk and the seals were broken enroute. The Tribunal held that in the absence of any evidence to the contrary, it can be safely held that the short delivery of consignment was due to the negligence on the part of the appellant.
Learned counsel for the appellant submitted that the Tribunal has not considered Section 94 of the Railways Act, 1989, which provides that if the loading and unloading of the consignment takes place at the private site, the Railways shall not be responsible for the loss.
Learned counsel for the respondent submitted that it is not in dispute that the loading was done at its own site and the seals were also put on the top and bottom of the tanker wagons by the staff of the respondent. The dip measurement was taken jointly by the staff of the respondent and the railways and, thereafter, the railway's receipt was issued mentioning the quantity of the goods to be transported. The transit risk was of the Railways. Section 94 applies only in a case where the seal has not been found broken, but it does not apply in a case where the seal was found broken. In the present case, both, top and bottom seals were found broken, which was on account of negligence on the part of the railways, therefore, the railways is liable to pay the compensation.
I have considered rival submissions and perused the impugned order.
The relevant Sections 93 and 94 of the Railways Act, 1989 read as follows:
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:-
(a) act of God;
(b) act of war;
(c) act of public enemies;
(d) arrest, restraint or seizure under legal process;
(e) orders or restrictions imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorised by it in this behalf;
(f) act or omission or negligence of the consignor or the consignee or the endrosee 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;
(h) latent defects;
(i) fire, explosion or any unforeseen risk;
Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid cause, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the railway administration further proves that it has used reasonable foresight and care in the carriage of the goods.
94. Goods to be loaded or delivered at a siding not belonging to a railway administration.- (1) Where goods are required to be loaded as a siding not belonging to a railway administration for carriage by railway, the railway administration shall not be responsible for any loss, destruction, damage or deterioration of such goods from whatever cause arising, until the wagon containing the goods has been placed at the specified point of interchange of wagons between the siding and the railway administration and a railway servant authorised in this behalf has been informed in writing accordingly by the owner of the siding.
(2) Where any consignment is required to be delivered by a railway administration at a siding not belonging to a railway administration, the railway administration shall not be responsible for any loss, destruction, damage or deterioration or non-delivery of such consignment from whatever cause arising after the wagon containing the consignment has been placed at the specified point of interchange of wagons between the railway and the siding and the owner of the siding has been informed in writing accordingly by a railway servant authorised in this behalf.
Section 93 imposes a responsibility for loss, destruction, damage or deterioration in transit or non-delivery of any consignment on the railway administration, except otherwise provided in the Act and except the cause mentioned in Section 93 itself. Section 94 is the exception of Section 93.
I am of the view that Section 94 does not cover those cases where the negligence on the part of the railway administration is established. There is no dispute that the transit risk was of the Railways and as such it was the responsibility of the railways to transport the goods safely and deliver the same quantity of the goods, which has been loaded and booked. In the present case, since top and bottom both seals were found broken, it can be safely said that there was a negligence on the part of the railways. Section 94 does not apply in a case where, both, top and bottom seals were found broken.
In my view, on the facts and circumstances of the case, the railway administration cannot be absolved from the responsibility merely because the goods were loaded and unloaded at the private siding and the seals were put in the wagons by the respondent. It is the responsibility of the railways to carry the wagon intact with the top and bottom seal. In case, if the top and bottom seals are found to be broken, it would lead to the inference that the consignment has not been handled by the railways properly and it can be safely said that it is on account of negligence on the part of the railway administration.
I have also perused the Circular issued by the Railways, which is Annexure-3 to the Appeal.
Paragraph-2 of the Circular provides that where the top and bottom seals are found broken at the destination and a shortage is found, the claim should normally be accepted after due verification of the shortage, unless there are other circumstances under which claim is not admissible. Thus, in view of the Circular also, the respondent was entitled for the compensation. The Railways failed to show any circumstances to establish that the claim is not admissible.
In view of the above, I do not find any error in the impugned order, which requires interference. In the result, the Appeal fails and is dismissed.
Order Date :- 14.2.2013 bgs/