1 fa905-96-j IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa FIRST APPEAL NO.905 OF 1996 Union of India, ] represented by the General Manager ] .. Appellant of Central Railways, C.S.T., ] (Orig. Respondent) Bombay – 400 001. ] V/s. Padmashri Dr. Vithalrao Vikhe Patil ] Sahakari Sakhar Karkhana Limited, ] .. Respondent Pravaranagar, District – Ahmednagar ] (Orig. Applicant) Maharashtra. ] ..... Mr. A. N. Samant for the appellant. None for the respondent. ..... CORAM : A. S. OKA, J. DATE : MARCH 21, 2011. ORAL JUDGMENT :- Heard the learned counsel appearing for the appellant. None appears for the respondent. The challenge in the Appeal is to the Judgment and order dated 13th March, 1996 passed by the Railway 2 fa905-96-j Claims Tribunal on an application made by the respondent. The appellant has been directed to pay a sum of Rs.85,238/- with costs and interest at the rate of 12 % per annum from the date of filing of the application till the realization. 2. A consignment was entrusted by the respondent to the appellant (Railways) on 4th December, 1991. The consignment was of 45 bales of 'A' Twill new gunny bags (18000 bags). The consignment reached the destination on 3rd January, 1992. Before the delivery could be taken, on 4th January, 1992, the consignment was damaged in fire. Therefore, a claim for damages on account of the damage to the consignment was made by the respondent. 3. The claim was contested the appellant by contending that the claim of the respondent was fully satisfied by the insurer. However, it was not denied that the consignment was destroyed in fire. It was contended that notice under Section 80 of the Code of Civil Procedure, 1908 was not served to the appellant. The Tribunal negatived the contentions raised by the appellant and proceeded to pass the impugned order. 3 fa905-96-j 4. The first submission of the appellant is that the respondent has received the entire claim from the insurer and, therefore, the claim was not maintainable. The second contention is that notice under Section 80 of the Code of Civil Procedure, 1908 was not served. The third contention is that interest at the rate of 12% per annum granted by the Tribunal was excessive. 5. I have carefully considered the submissions. As far as the first contention is concerned, a law is well settled. Even assuming that a letter of subrogation was issued by the respondent to the insurer, it will not affect the rights of the respondent against the Railways. Therefore, the contention that in view of the alleged payment by the insurer, the respondent has no locus to file the claim, has been rightly rejected by the Railway Tribunal. 6. From the perusal of the impugned judgment, it appears that the issue regarding failure to serve notice under Section 80 of the said Code has not been agitated before the Tribunal. Apart from the fact that the failure to raise such a contention may amount to waiver 4 fa905-96-j of notice under Section 80, the said contention cannot be allowed to be raised in the Appeal for the first time when it was not raised at the time of final hearing before the Railway Tribunal. The learned counsel appearing for the appellant states that the entire compensation amount has been deposited in this Court and the same has been invested in fixed deposit. He submitted that the interest at the rate of 12% per annum is excessive. Considering the facts of the case and especially the fact that the respondent has received an amount from the insurance company, the interest could not have exceeded 6% per annum. The learned counsel for the appellant submitted that while calculating interest on compensation the amount, the interest accrued on the fixed deposit will have to be considered. However, that is a matter to be decided in execution by the Tribunal. 7. Hence, the Appeal succeeds in part and, I pass the following order : :: O R D E R :: i. The impugned Judgment and Order dated 5 fa905-96-j 13th June, 1996 is modified to the extent that interest on compensation amount shall be at the rate of 6% per annum instead of 12% per annum from the date of filing of the claim application. ii. Rest of the impugned judgment and order is confirmed. iii. As far as withdrawal and/or disbursement of the amount deposited in this Court with interest accrued is concerned, Registrar Judicial will pass appropriate order for disbursement/withdrawal as per this Judgment after hearing the parties. vi. Appeal is partly allowed on the above terms with no order as to costs. JUDGE