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Judgment
The facts leading to the civil miscellaneous appeal are as under:
The appellant who is the endorsed consignee/purchaser of 245 bags of wheat (120 + 125) sent from Hardol to Katpadi under railway receipts
Exs.B-1 and B-2. On arrival of the goods at the destination, it was found that a portion of the consignment had been damaged in respect of which
the respondent, the destination railway, issued joint survey report Ex.A.-1 stating that 120 bags kept for OD were found wet, damaged,
discolored, disfigured, fungus attacked and emitting bad smell and the damage was assessed at Rs.15,744. It is not necessary to refer to the umber
of bags and the percentage of assessment as the total amount claimed has already been given. The goods were sent on 24.8.1990 from Hardol.
The goods reached the destination on 13.12.1990 as seen from the D message, Ex.B-3, issued by the Chief Goods Supervisor, Katpadi.
According to the appellant, the damage was caused due to the negligence and misconduct on the part of the railway servants when the
consignment was in transit and in their custody and the respondent was liable to compensate the loss as insurer in as much as they had not taken
reasonable foresight and care in the transport of the consignment, having carried the consignment in a non-water tight wagon, which was unfit for
transport of essential commodities and having taken enormous time for the transit of the consignment. The appellant further contended that the
respondent railway having accepted the negligence by making part payment was liable to reimburse the loss in full.
The defence was one of denial that the goods were entrusted in sound condition for carriage at the forwarding station. The railway staff at the
booking station had issued the railway receipts with the following remarks:
Wagon WT. Bags Old. 6 bags dunnage used.
The appellant was bound by the said remarks in as much as it was claiming title by railway receipts thus issued, that the remarks above would
absolve the railways from their liability; that the railways had exercised due care, caution and foresight, that there was no negligence or misconduct
on their part or any of their servants, that the damage was attributable to the loading of already damaged bags and non-provision of standard size
dunnage by the appellant at the forwarding station.
The Tribunal found that the bags were not already damaged when loaded by the consignor at the forwarding station, that there was nothing to
indicate that the dunnage used was not standard size, that in the railway receipts Exs.B-1 and B-2 it was stated that 6 bags dunnage was used and
there was no comment about the dunnage in the D message, Ex.B-3, that the railways did not use reasonable foresight and car in the carriage of
goods. Having found that the Tribunal qualified it by the saying that the appellant had contributed to the loss in as much as the Wheat was packed
in old bags which burst in transit and also there was delay on the part of the appellant in taking delivery of the consignment. The Tribunal ultimately
found that the appellant was also partially responsible for the damage and apportioned the compensation between the appellant and the respondent
railways in the ratio of 25 : 75. In as much as the Tribunal made the appellant also liable to an extent of 25%, the present civil miscellaneous appeal
has been filed.
Mr. Rajamohan, learned counsel for the appellant, submitted that the respondent railways had taken four months time to carry the consignment
from the forwarding station to the destination, that at the time the goods were booked, there was no indication that there was any defect in the bags
except for saying that a few bags were old, that the goods were loaded in a water tight wagon and sufficient dunnage had also been provided and it
was inconceivable and there could have been wetness on account of any default on the side of the appellant. The learned counsel further submitted
that the tribunal having found that there was enormous delay in transshipment, was in error in holding that the appellant also had contributed to the
loss. The learned counsel also submitted that the wagon had not been put to examination after the consignment reached the destination for the
purpose of finding out whether there was after leakage. The tests contemplated were not followed. The delay on the part of the respondent
railways had not at all been explained. The learned counsel further pointed out that there was no delay on the part of the appellant in taking delivery
in as much as on the very day of arrival of the consignment, the R.R. had been surrendered. There was delay in the survey and even in the D
message, Ex-B-3, there was no indication about the soaking of the consignment in water.
Mr.V.R. Gopalan, learned counsel for the respondent, submitted that the R.R. receipt showed that there was defect in the bags, that they were
old bags and they burst in transit and that the apportionment by the Tribunal was fair and reasonable.
The goods were despatched on 24.8.1990. They reached the destination only on 13.12.1990. On 13.12.1990 itself the appellant had
surrendered the R.R. On 13.12.1990 there was a D message sent to the respondent by the staff at Katpadi, which does not mention about the
consignment being wet. The only thing that is mentioned is that the consignment was in a heap and some of the bags had given way, with the result
the staff was not in a position to weigh the consignment. There is no mention that the commodity was either wet or damaged. Even according to the
Tribunal, Ex.B-3 D message only talks about the number of bags and the percentage of the loss. The Tribunal finds that in the absence of such
comment in the D message, Ex.B-3, the possibility of the contents being kept for weighment and open delivery to ascertain shortage and its
becoming wet and damaged during the period cannot be ruled out. The Tribunal further comments that the delay in taking delivery may be a
contributory factor in increasing the damage. This, having regard to the facts of the case, is not at all justified. The R.R. surrendered on the same
day. There was no reference to any bags being wet on the day. The delay in taking delivery was on account of the fact that survey was not done
immediately. Between the date of the consignment reaching the destination and the date of survey, it was the duty of the railways to keep the
consignment safe. The Tribunal also gave the benefit of doubt to the consignor and held that the bags were not damaged at the time of the loading,
but it chose to further find that the damage to the contents might have been aggravated by their being packed in old bags which burst in transit and
the contents became heap. As already noticed, for the consignment to reach it took four months. Except for the bags being in a heap, which could
have been on account of repeated shunting in various places, it cannot be said that the damage was aggravated by the contents being packed in old
bags. The railways have not established that the damage had occurred due to inherent defect of the goods despite reasonable foresight and care.
The damage could have been only in transit. The delay was only on the part of the respondent. The loss had occurred due to their negligence. The
apportionment by the Tribunal at 25 : 75 is not at all justified.
It has been held in Oriental Insurance Co. Ltd. and another Vs. Union of India and another, by R. Balasubramanian, J. that
unless the railway proved that the goods were defectively packed and that the damages to the goods was a consequence of defective packing
only, there could not be any apportionment.
The railways had also not established that the packing was defective or that any of the requirements under their packing rules had not been
complied with. If there was defect in packing, it would have been noted in the relevant records. In these circumstances, the appellant is entitled to
succeed. The civil miscellaneous appeal will stand allowed. There will, however, be nor order as to costs.