IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR TUESDAY, THE 8TH JANUARY 2008 / 18TH POUSHA 1929 MFA.No. 134 of 2002() --------------------- D.56/2000 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH. .................... APPELLANT: APPLICANT -------------------- M.S.SREEKUMAR, AGED 39 YEARS, S/O.M.K.SHEKHARA KURUP, KALARIKKAL HOUSE, P.O.MANAKULANGARA, KODAKARA (VIA), THRISSUR DISTRICT, PIN-680 684. BY ADV. SRI.H.B.SHENOY, SRI ASHOK B. SHENOY & SRI ABU MATHEW RESPONDENT: RESPONDENT ----------------------- UNION OF INDIA, REPRESETNED BY THE GENERAL MANAGER(COMMERCIAL) SOUTHERN RAILWAY, PARK TOWN, CHENNAI. BY ADV. SRI.VARGHESE P.THOMAS, SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 8.1.2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR ,J. ------------------------------------------------- M.F.A.No.134 of 2002 ------------------------------------------------- Dated, this the 8th day of January, 2008 JUDGMENT Applicant in D.No.56/2000 on the file of the Railway Claims Tribunal, Ernakulam Bench is the appellant. The applicant booked two gunny bags parcel containing ready made hosiery items weighing 65 kgs valued at Rs.17,258.70 at Tellicherry Railway Station for consignment to Irinjalakuda Railway Station under Parcel Way Bill No.762954 dated 18.8.1997. The goods were not delivered in time. The appellant sent a notice on 29.9.1997 to the Railway Administration. In reply to that letter the respondent sought a copy of the Parcel Way Bill. That was also furnished. Thereafter the respondent informed the appellant's counsel that the consignment reached at Irinjalakuda Railway Station on 26.9.1997 and asked the appellant to get delivery. According to the appellant due to the delay in delivery there was deterioration of value of the goods and he sustained loss on account of the fall of price of goods. The case came up for admission. On that day the appellant was absent. Counsel for the Railways opposed the application. The Tribunal took a view that the matter ex-facie attracts bar under Section 102(d) of the Railways Act. It also found that the delay of three months and six days happened on account of the fault of the appellant. Tribunal took a view that the applicant declined to take delivery of the goods on the ground that there is fluctuation in the price and hence the claim is barred under Section 102(d) of the MFA No.134/2002 -: 2 :- Act. 2. Learned counsel for the appellant contended that the claim was not on account of the fall of the price in the market but for recovery of damages on account of deterioration of value of the goods. It is argued that the word 'damage' was considered by a Division Bench of this Court in Union of India v. Universal Traders Corporation (1983 KLT 146) and the principle laid down in that decision squarely applies to the facts of this case. It is also argued that in Union of India v. Parameswaran Pillai(1986 KLT 43) another Division of this Court held that the fall in the price of the goods due to delayed delivery does not fall under Clause (d) of Section 78. It is a direct damage for which the Railway Administration is liable under Section 73 of the Indian Railways Act. Counsel for the appellant relying on Section 95 of the Railways Act argued that the entire burden is on the Railway to plead and prove their case. It is also argued that the provisions under Section 102(d) can have no application in this case. 3. A reading of the order shows that the order was passed without hearing the appellant and his counsel. The Tribunal did not even consider the burden of proof in this matter. Since the Tribunal has not considered any of the points arising for consideration, the impugned order is liable to be interfered with. In the result, appeal is allowed. The order passed on22.6.2001 dismissing the claim is hereby set aside. Tribunal is directed to take D.No.56/2000 back to file and dispose of the same afresh in accordance with law, after affording an MFA No.134/2002 -: 3 :- opportunity to both sides to file counter, amend the pleadings, adduce fresh evidence, etc. Parties shall appear before the Tribunal on 8.2.2008. K. PADMANABHAN NAIR, JUDGE. cks MFA No.134/2002 -: 4 :- K.PADMANABHAN NAIR, J. M.F.A.No.134 of 2002 JUDGMENT 8th January, 2008.