IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 MFA.No. 394 of 2003() --------------------- OA.120/1990 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT: APPLICANT: -------------------------------------- INDIAN OIL CORPORATION LTD., CHENNAI. BY ADV. SRI.JOSE JOSEPH RESPONDENT: RESPONDENT: --------------------------------------------- UNION OF INDIA, REPRESENTED BY GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. ADV. SRI.VARGHESE P.THOMAS, SC, RAILWAYS FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss J.B.KOSHY & K.P.BALACHANDRAN, JJ. -------------------------------------- M.F.A.No.394 OF 2003 ------------------------------------- Dated 17th September, 2008 JUDGMENT Koshy,J . The appellant booked two tank wagons with CR No.CR 43663 & WR 41048 as per Railway receipt No.A 912950/340 dated 24.9.1987 for transportation of 26500 litres and 27190 litres of motor spirit respectively, from Cochin Refineries siding at Irumpanam to Quilon. It is the case of the appellant that the tank wagons which were certified fit for loading and run were filled with motor spirit of the declared quantity and their valves were properly closed and sealed. Railway accepted the consignment for delivery and issued the receipt after checking all aspects. During transit, the tank wagon No. CR 43663 caught fire at Changanacherry Railway Station on 25.9.1987 due to the negligence of the Railway. The entire quantity of motor spirit contained in tank wagon No.CR 43663 was destroyed and there was a short delivery of 2335 litres of motor spirit in tank wagon No.WR 41048. Since the Railway rejected the claim, the appellant approached the Railway Claims Tribunal for non-delivery of motor spirit worth Rs.1,81,078/= and short delivery of motor spirit worth Rs.17,307/= apart from the return of freight charges. According to the Railway, the accident occurred due to the negligence of MFA.394/2003 2 the appellant themselves as they did not properly close the valves and there was leakage. After consideration of the evidence, both documentary and oral, the Tribunal came to the conclusion that the appellant was negligent. Hence, the claim was rejected in toto against which this appeal was filed. 2. Apart from the railway receipt (open delivery certificate), seven other documents were also produced on behalf of the appellant. They were proved by examining the Deputy Manager of the Company. Railway produced copy of the departmental enquiry proceedings (Ext.R1) and also examined six witnesses. Since the question of negligence is involved in this matter, we may first refer to the relevant provisions in the Act. We quote below sections 93 and 97 of the Railways Act, 1989: “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 MFA.394/2003 3 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 endorsee 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 causes, 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. 97. Goods carried at owner's risk rate.- Notwithstanding anything contained in Section 93, a railway administration shall not be responsible for any loss, destruction, damage, deterioration or non-delivery in transit, of any consignment carried at owner's risk rate, from whatever cause arising, except upon proof, that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on its part or on the part of any of its servants: Provided that- (a) where the whole of such consignment or the whole of any package forming part of such consignment is not delivered to the consignee or the endorsee and such non-delivery is not proved by the railway administration to have been due to fire or to any accident to the train; or (b) where in respect of any such consignment or of any package forming MFA.394/2003 4 part of such consignment which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of that consignment or package had been pilfered in transit, the railway administration shall be bound to disclose to the consignor, the consignee or the endorsee how the consignment or the package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or of any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor, the consignee or the endorsee.” It is well known principle that even when the consignment is put at owner's risk, Railway administration is bound to take care it as if it is its own goods. It has come out in evidence that while accepting the consignment, Railway is bound to see that the consignment is delivered in good condition. It is true that while entrusting the consignment, the consignor also should see that all proper precautions are taken to avoid any leakage etc. The enquiry was conducted by three senior officers of Railway on the technical side. It would reveal that the immediate cause of fire was because of a non- flame proof lamp brought near the petrol tank wagon by a Railway employee. At that time, it was found that there was leakage. Ext.R1 shows that when the wagons left Ernakulam to Kottayam, at Kottayam also there was no leakage. It is somewhere after it left Kottayam MFA.394/2003 5 Railway Station that the leakage started. 3. PW1, Deputy Manager of the appellant, stated that before issue of railway receipt by the Railway, their staff are required to check that the product is loaded up to correct level, that bottom valve and sealing is done correctly and there is no leakage anywhere. In case leakage is found out, the railway staff declare the wagon sick and return it to CRL (Cochin Refineries Ltd.) to retrieve the product. DW1 was a senior Section Engineer of Railways. He went to the spot after getting report of the fire incident at 6.30 in the morning. At that time, the master valve and bottom valve of the wagon were seen in open condition. He also stated that the dummy flange with card board packing was available on the bottom valve. He further stated that on the top and bottom valves, the sealing wire was intact, but, the seal was melted. So, DW1 has seen the wagons after the fire incident and by that time the seal of the valves were melted due to the impact of the fire. He also stated as follows: “From my experience, the possibility of leaking a tank wagon catching fire, is by taking a naked lamp in the vicinity of the wagon or due to any bearing failures on the axle causing the wagon to develop hot axle and emit flame from the axles.” 4. DW2, a retired Station Master, deposed that he had no direct knowledge about the incident. DW3 stated that he was working MFA.394/2003 6 as a Train Goods Guard on 24.9.1987. In the affidavit he has stated as follows: “I was working as a Train Goods Guard at Quilon on 24.9.1987 and I was the guard in the goods train which started from Erumpanam bound Quilon. When the train started from Erumpanam, and before it started I had throughly checked up the formation of the train and the break-jamming of each compartment was inspected and also the leakage. The sealing of the bottom valve of the tanker wagon was usually done by the consignor and their employees. When the train reached Changanacherry, the station master had stopped the train though the train had no stop at Changanacherry. The stoppage was due to the message received by the SM/Changanacherry from SM/Chingavanam.” He also stated that immediately after the stoppage of the train at Changanacherry, he forwarded towards the engine and informed the driver. After his inspection and noticing leakage, the wagon caught fire. He further stated that records in this case maintained by him were lost. It is also stated that the petroleum products caught fire only after he detected the leakage. DW4 was the Senior Divisional Mechanical Engineer, Trivandrum Railway Division. He proved Ext.R1 enquiry report. Following is the relevant portion of his deposition: “Question : Do you know when a sick memo is issued to Indian Oil Corporation/Kochi Refinery? MFA.394/2003 7 Answer: In the event of notice from the Oil Co. that the valve cannot be closed, sick memo is issued. Question: Is there a procedure of checking the wagons by the Railway staff before issuing a clear Railway Receipt? Answer: Wagons are checked by the Railways before offering them for loading. After loading the oil, the fitness of the wagon is examined by the Railways. The witness added that the running condition of the wagon is also checked. In the event of a clear Railway Receipt being issued, will it be the duty of the Railways to ensure that the contents are delivered at the destination point? (Question) Answer: Yes.” DW5 was a retired Senior Divisional Safety Officer. He also reached the spot after the incident. He stated that the lading clerks are expected to check the seals, before Railway Receipt is issued. He also stated that there is no possibility of any leakage if the valves are closed properly. He further deposed that Ext.R1 report was accepted by the superior officers. DW6 was a Divisional Security Commissioner of the Railways who was a member of the enquiry committee which gave Ext.R1 report. Ext.R1 clearly shows that there was no leak of petroleum products, when it left the CRL till it reached Kottayam. So, the leak started only after the train left Kottayam before it reached Changanacherry. Therefore, it can be seen that the leak occurred after the train left Kottayam and the fire occurred after the leak was found out by DW2. The fire occurred due to the carelessness of a Railway employee who went there with a non-flame proof lamp instead of using a torch light and, therefore, in this case, it MFA.394/2003 8 is clearly proved that the fire took place only because of the negligence of the Railway officials. In any event, Railway did not take adequate care as if it is its own goods and, therefore, we are of the view that Railway is responsible for the loss of goods contained in wagon No.CR 43663, the value of which is Rs.1,81,078/=. There is no dispute with regard to the value. With regard to short delivery of goods in wagon No.41048, we are of the opinion that there is no evidence to show that the shortage occurred due to the carelessness of the Railways. In the above circumstances, the Railway is bound to pay the cost of fuel in tank wagon No.CR 43663 which caught fire amounting to Rs.1,79,032/= plus freight charges of Rs.2046/=, totaling Rs.1,81,078/=, with 7.5% interest from the date of application, i.e., from 17.9.1990 till its payment. The appeal is allowed to the above extent with proportionate costs. J.B.KOSHY JUDGE K.P.BALACHANDRAN JUDGE tks