Allahabad High Court
Union Of India vs Gyanendra Pratap Singh on 17 February, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6 (1) Case :- FIRST APPEAL FROM ORDER No. - 217 of 1999 Appellant :- Union of India Respondent :- Gyanendra Pratap Singh Counsel for Appellant :- Anil Kumar Srivastava,Mandeep Kumar Mishra,Pankaj Srivastava Counsel for Respondent :- S.C. Pandey,Ajit Singh,Saharsh Connected with (2) Case :- FIRST APPEAL FROM ORDER No. - 234 of 1999 Appellant :- Union of India Respondent :- Gyanendra Pratap Counsel for Appellant :- Anil Srivastava,Mandeep Kumar Mishra,Pankaj Srivastava,Ved Prakash Counsel for Respondent :- S.C. Pandey,Ajit Singh,Saharsh (3) Case :- FIRST APPEAL FROM ORDER No. - 232 of 1999 Appellant :- Union of India Respondent :- G.P.Singh Counsel for Appellant :- Anil Srivastava,Mandeep Kumar Mishra,Pankaj Srivastava,Ved Prakash Counsel for Respondent :- S.C.Pandey,Ajit Singh,Saharsh (4) Case :- FIRST APPEAL FROM ORDER No. - 218 of 1999 Appellant :- Union of India Respondent :- Gyanendra Pratap Singh Counsel for Appellant :- Anil Kumar Srivastava,Mandeep Kumar Mishra,Pankaj Srivastava,Ved Prakash Counsel for Respondent :- S.C. Pandey,Ajit Singh,Saharsh (5) Case :- FIRST APPEAL FROM ORDER No. - 233 of 1999 Appellant :- Union of India Respondent :- G.P.Singh Counsel for Appellant :- Anil Srivastava,Mandeep Kumar Mishra,Pankaj Srivastava,Ved Prakash Counsel for Respondent :- S.C.Pandey,Ajit Singh,Saharsh Hon'ble Jaspreet Singh,J.
Heard Shri Mandeep Kumar Mishra, learned counsel for the appellants.
None has put in appearance on behalf of the respondents, accordingly the appeals have been heard in their absence.
These are a batch of five appeals which involved similar questions of law and fact and accordingly are being decided by this common judgment.
The facts are being noted from FAFO No.217 of 1999.
The claimant-respondents instituted five claim petitions before the Railway Claims Tribunal at Lucknow Bench. In all of the five cases, the contention of the claimant-respondent was that on account of negligence of the railways and its employees, the consignment consisting of cement bags was damaged for which the cases for compensation and loss were instituted.
In the main case i.e. OC9600276, it was stated that the booking was made on 07.05.1993 from Maihar Cement siding to Fatehpur. A consignment of 8856 bags of cement each bag weighing 50 Kgs valued at Rs.93/- per bag was entrusted to the railways. Out of the aforesaid quantity, 5512 bags were found damaged because of rain. Upon an assessment made, it was found that 2539 bags were completely damaged whereas 1210 bags suffered 60% damage while 1040 bags suffered 40% damage and 723 bags suffered 20% damage as a result a claim of Rs.4,22,164/- was made in the leading case giving rise to FAFO No.217 of 1999 arising out of a case bearing No.OC9600276. It is in this fashion that the other cases were also filed claiming damageS on similar grounds, however, for different sums and all the aforesaid cases were connected and heard by the Railways Claims Tribunal.
The railways had also raised a common defence in all the cases and had primarily stated that the goods were unloaded at the siding by the claimants themselves. Since there was no likelihood of any rain as it was not the monsoon season yet the respondents had provided with the necessary tarpaulins to cover the cement bags. However, all of a sudden without any prediction, heavy rains came around evening and it is on account of the aforesaid the cement bags were damaged but the fact remains that since the delivery had already been affected and taken by the claimants themselves therefore the liability of the railways ceased, hence they cannot be held responsible for any loss.
Upon the pleadings of the parties, the tribunal framed five issues. However, while considering issue nos.3 and 4 it recorded a finding since the rains came at the time when the cement bags had been removed but since the respondents could not bring on record any gate-pass to show that the goods have been removed, therefore, the liability of the railways would continue. It also found that it could not be established by the railway administration that they have taken adequate protection to prevent consignment from being damaged consequently the claim petitions were allowed in part and the railway administration was directed to pay the compensation alongwith 12% interest per annum by means of award dated 30.03.1999. It is this award which has been assailed by the railway administration by filing the instant appeal under Section 23 of the Railway Claims Tribunal Act.
The submission of Shri Mandeep Mishra learned counsel for the appellant is that in terms of the provision of the Railways Act the moment the delivery is made to the consignee the liability of the railways as carrier as well as a bailee ceased. It has been submitted that though a categorical plea was raised before the tribunal that the consignment had reached the destination in sound condition and within time and there was no negligence alleged even by the claimants in respect thereto and the delivery was effected and the claimants had taken the delivery and had unloaded the consignment from the railway wagons on the siding.
It has also been submitted by Shri Mishra that though upon the delivery having been effected the liability of the railways ceased but nevertheless in compliance of its obligation it yet provided tarpaulins to the claimants in order to provide adequate protection to the consignment of cement bags. It has also been submitted that towards evening of 10.05.1993 the rains occurred and though the goods had already been delivered to the consignee. It was their duty to have removed the same from the railway premises.
It has been submitted that the plea taken before the tribunal below by the claimants was that since the goods were being removed and well within the free time as provided under the provisions and rules concerning the aforesaid consignment, therefore, it would be the responsibility of the railways if any damage occurred. It has been submitted by Shri Mishra that this is not a sound reasoning adopted by the tribunal; inasmuch as if the goods are not removed within the free time then the railways are entitled to charge the wharfage however the fact remains that the liability ceases the moment the delivery is effected.
It has further been submitted that the tribunal while arriving at its conclusion in respect of issue nos.3 and 4 has drawn an adverse inference against the railway administration that though it was pleaded by the railways that they had issued gate-passes yet they could not bring the same on record and therefore the liability has been fastened on the railways and this reasoning is also not quite correct.
Shri Mishra has submitted that it is not the case of the claimants that on account of non issuance of gate-passes they were not in a position to remove the goods from the railway premises. It has further been submitted that it is for the claimants to have established its own case and when it was neither pleaded by them, even if at all, the gate-passes were not produced it would not draw any adverse inference against the railway administration. Thus, it has been submitted that for the aforesaid reasons the judgments passed by the tribunal in all the connected appeals are erroneous.
In support of his contention, Shri Mishra has relied upon a decision of the Co-ordinate Bench passed in FAFO No.490 of 2003, Union of India Vs. U. P. Asbestos Ltd. decided on 29.04.2010 and another decision of a Co-ordinate Bench of this Court passed in FAFO No.118 of 1997, M/s. Raymond Cement Works Vs. Union of India decided on 07.02.2006.
On the strength of the aforesaid decisions, it has been submitted by Shri Mishra that the present case is also squarely covered. The liability of the railways in the aforesaid decisions has been held to have ceased the moment the delivery is made and in the present case as well, it is not disputed by the claimants that the delivery was effected hence the ground upon which the tribunal has allowed the claims are contrary to the ratio laid down in the aforesaid decisions and accordingly the awards passed in the respective claim petitions deserves to be set aside.
The Court has considered the submissions of the learned counsel for the appellant and also perused the record.
As far as the facts are concerned, there is not much dispute; inasmuch as it is not disputed by the claimants that the goods reached the point of destination within reasonable time and in sound condition. The record indicates that the booking was made on 07.05.1993 and the same had reached its destination on 10.05.1993 at 2.35 hours (early morning). The appellant i.e. railway administration had informed the respondents regarding placement of the rack at the railway siding at the destination station and after having taken the delivery, the respondents had also unloaded the cement bags from the railway wagons on to the platform.
The contention raised by the claimants before the tribunal was that since the aforesaid railways siding/platform did not have adequate infrastructure; inasmuch as there was muddy ground as well as there was no uniformity in the sense that it made seepage of water easy, neither there was any covered shed to place the aforesaid consignment. Thus, the entire consignment was unloaded and was placed on the northern and the southern side of the platform, in parts. The other plea taken by the claimant before the tribunal was that towards the evening the sky had clouded and its started to rain heavily. Since the railway administration did not take adequate precaution and that the goods were placed on the railway premises and the free time as provided under the rules had not expired, thus for the loss so occasioned it was the railway administration, who was responsible.
The railway administration, on the other hand, had denied its liability primarily on two counts (i) the delivery was effected and thereafter the liability of the railways ceases; (ii) though it was not the monsoon season and there was no prediction for rain but nevertheless the railways as a responsible carrier had provided the necessary tarpaulins to ensure that the damage to the cement bags is not done. However, on account of heavy rain coupled with breeze the tarpaulins flew which exposed the cement bags and as such whatever loss was occasioned was on account of the negligence of the claimants themselves for which the railways cannot be held responsible.
Upon considering the material available on record, it is not disputed that the consignment reached in time. It is also not disputed by the claimants that they were not given the delivery of the goods. The claimants also do not dispute that after having taken the delivery, they had unloaded the consignment from the railways-wagons and placed it on the railway platform. The claimants also do not dispute that the free time had yet not expired. In the aforesaid circumstances, the question which arises for determination is whether after having effected the delivery and the goods not having been removed from the railways premises during the free time whether the railway administration would be responsible.
This is the issue which was before the Co-ordinate Bench of this Court in the case of Union of India Vs. U.P. Asbestos Ltd. (supra) and the relevant portion reads as under.
"The question of damages of the goods within free time or beyond free time would have no relevancy for fixing responsibility upon the railway administration when it could not be treated as a bailee under Section 99 of the Railway Act. Since the goods had been delivered, the responsibility of Railway had seized. So far as the damages caused to the goods during the free time is concerned, I find that once the delivery of goods has been made, the only responsibility of the railway would be that if the goods remained at its premises and have not been removed by the consignee, the railway would be responsible to provide necessary tarpaulins for prevention from damages of goods from rain on demand made by the consignee."
The earlier Co-ordinate Bench decision of this Court in the case of M/s. Raymond Cement Works (supra) also considered this aspect of the matter at some length by considering the various provisions of the Railways Act and the relevant portion of the aforesaid decision reads as under:-
"Section 74 of the Railways Act, 1989 is extracted herebelow:-
74. Passing of property in the goods covered by railway receipt- The property in the consignment covered by a railway receipt shall pass to the consignee or the endorsee, as the case may be, on the delivery of such railway receipt to him and he shall have all the rights and liabilities of the consignor."
"From the above provision, it is apparently clear that the property of the consignment covered by any railway receipt of the date after enforcement of the Act, 1989, passed on to the consignee or the endorsee on delivery of such railway receipts to him and it is he who shall have all the rights and liabilities of the consignor. The plain reading of the provision makes it amply clear that the amount railway receipt is delivered to such consignee or endorsee he shall have all the rights and liabilities of the consignor. Therefore, rights and liabilities of the consignor in respect of goods covered by railway receipt pass on the consignee or endorsee, as the case may be, the moment receipt is delivered to him."
"...Learned counsel for the appellant contended that railway administration is responsible for any loss or damage occurred during 'in transit' period. He urged that since the period during which goods got damaged, was 'in transit' period, the liability of railway administration did not cease. In my opinion, the argument of learned counsel is totally mis-placed. As it would appear from the plain reading of the different provisions of the Railways Act, 1989, after delivery has been taken and a major part of it has already been removed leaving behind a part of remaining consignment to the removed later, the liability of the railway administration will not b attracted. The railway administration is responsible for the loss till delivery is not taken during 'in transit' period but once the delivery has taken by owner, it is total responsibility of the consignee/endorsee to take proper steps to remove the goods at the earliest or take care for its protection. However, owner can leave the goods on siding without any levy of charge by the railway administration during 'in transit' period but if goods are not removed by the owner within 'in transit' period as required under Rule 2(41) of the Act, 1989, charge is to be levied on the goods for not removing them from the railway premises after the expiry of free time. The word 'free time' has been used in the definition of 'in transit' and according to same the transit terminates on the expiry of the free time allowed, for the removal of the goods from the railway premises. Therefore, in cases where the delivery of the goods has been taken and the same has been unloaded from rolling stock if goods are not removed within the free time the owner is liable to pay charge for occupying the said place beyond free time. Therefore, in cases where delivery of the goods has been taken and the same has been unloaded from the rolling stock, the owner can use the railway premises without paying any charge till expiry of free time at his own risk. Learned counsel for the respondent rightly pointed out that the liability of the railway administration as bailee came to an end, the moment delivery of the goods is taken and, therefore, liability of the railway administration also came to an end. Under Section 99 of the Act, 1989, even after the termination of the responsibility of the railway as bailee, the railway administration will have right to charge demurrage/wharfage for not unloading from railway wagons or removing the goods from railway premises 'in transit' period."
In view of the legal position as settled by this Court in the aforesaid decisions, it is not open to submit that once the delivery was effected the railways would be responsible. So, the only issue which now needs to be considered in the present case is whether in the aforesaid circumstances, the railways could be treated who have committed any negligence entitling the claimants to receive any compensation.
The material which has been brought on record especially the Northern Railway Gazette No.10 and the Indian Railway Commercial Manual Volume-II indicates that despite there being no monsoon yet adequate protection must be given by the railways in respect of items which are perishable and can be damaged by water or wetness.
In the present case at hand, the record would indicate that the railways administration specifically raised a plea that despite the claimants having not asked for any tarpaulins yet the same was provided by the railways. This fact has not been denied by the claimants. It is also not disputed that the month of May as per the Railway Manual is not the monsoon month. Thus in the given situation where it was not the monsoon season coupled with the fact that despite the claimants having not asked for the tarpaulins in writing yet the railway administration had provided the same and the rain occurred towards the evening while the claimants were unloading and taking away their consignment, could not be treated to be the negligence of the railways.
The ground raised and relied upon by the tribunal while awarding the compensation that the respondents in their written statement had taken a plea that the delivery had been effected and gate-passes were issued but since the gate-passes could not have been brought on record, therefore, the tribunal has held that the railways were responsible. This Court finds that it is claimants who had, to establish its own case on its own merits. Though a plea was raised in the written statement that the gate-passes have been issued but the fact remains that this has not been controverted by the claimants by filing any rejoinder or even while filing its evidence. The simple plea raised by the claimants was that since the goods have not been removed from the railway premises and the free time had not expired, therefore, the negligence of the railways is made out as discussed above is not correct.
In light of the proposition which has already been noticed herein above first, it would be clear that the reasoning adopted by the tribunal is not sound. As far as the first part of the reasoning is concerned regarding the delivery and free time that has already been considered and noticed in light of two Co-ordinate Bench decisions of this Court. The other ground taken by the tribunal that the gate-passes were not brought on record also does not sound to reason as the claimants had not disputed this position. It has not been their case that because of the non-issuance of the gate-passes, the claimants could not remove their consignment from the railway premises. Thus in absence of any proper contro-version or the dispute having been raised by the claimants on this count it was not appropriate for the tribunal to have taken this as a ground to allow the claim petitions and saddle the responsibility on the railways whereas already discussed above, the after the delivery was made, the liability of the railways ceased.
For all the foregoing reasons, this Court is satisfied that the decision/award passed by the Railway Claims Tribunal dated 30.03.1999 does not take note of the correct proposition and the reasoning is also not sound thus it is accordingly liable to be set aside.
For the reasons as mentioned above, all the appeals are allowed. The award passed in the respective claim petitions shall stands set aside. In the facts and circumstance, there shall be no orders as to costs. The record of the tribunal shall be remitted to the tribunal concerned within two weeks from today.
17th Feb. 2020 ank/-