IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.179 of 2008 JAI PRAKASH HISSARIA, son of late Ram Nath Hissaria Resident of Main Road, Begusarai, P.S.Begusarai District Begusarai-------------Applicant/Appellant Versus THE UNION OF INDIA through the General Manager, North East Railway, Gorakhpur—Respondent/Respondent with MA No.180 of 2008 JAI PRAKASH HISSARIA Versus THE UNION OF INDIA THRU. G.M with MA No.181 of 2008 JAI PRAKASH HISSARIA Versus THE UNION OF INDIA THRU. G.M with MA No.182 of 2008 JAI PRAKASH HISSARIA Versus THE UNION OF INDIA THRU. G.M with MA No.183 of 2008 JAI PRAKASH HISSARIA Versus THE UNION OF INDIA THRU. G.M. with MA No.184 of 2008 JAI PRAKASH HISSARIA Versus THE UNION OF INDIA THRU. G.M ----------- For the appellant :Mr.Krishna Mohan Murari,Advocate For the respondent:Mr.A.Amanullah,Advocate ---- 5. 15.2.2010 All these Miscellaneous Appeals have been filed against different orders passed by the Railway Claims Tribunal, Bench at Patna with respect to the claims of the present applicant- appellant and the only prayer made in the appeals is for a direction upon the respondent Railways to grant interest to the appellant at the rate of 18% per annum on the claim amount. Accordingly, they 2 have been heard together and are being disposed of at the stage of admission itself with the consent of learned counsels for the parties. The facts common to all the cases is that consignment of different number of bags of cement contained in BCX wagons were entrusted for carriage by railway from ACC siding, Sindri to Karpurigram against different railway receipts booked at Railway Risk Rate in the year 1997 and on arrival at the destination the consignments were unloaded on the same day and removed from railway premises within permissible free time except for some bags which had to be left behind on closure of goodshed working hours. Out of the left behind bags of cement a number of them were partially damaged on getting wet because of rains, due to negligence of the railway staff. On demand railways granted open and assessment delivery on 23.8.1997 and due to excessive and unreasonable delay on that account the consignments suffered further deterioration/damage. The appellant ultimately made the claims for damages before the Railway Claims Tribunal. The Railways contested the claims before the Tribunal and by the impugned orders it was found that the 3 respondent Railways had failed to discharge its liability under the statutory provisions and was held liable for the damages caused to the consignment due to negligence and lack of care and thus liable to compensate the applicant-appellant for the damages so caused. The further point of dispute ultimately between the parties was with respect to the amount of compensation payable which the applicant-appellant claimed at the rate of Rs.140/- per bag whereas the respondent Railways took the stand that at the relevant time and period the prevailing market price of cement was Rs.70/- per bag. The Tribunal found that the applicant has not produced original Beejak in support of his claim whereas the Railways filed a copy of order of RCT dated 16.4.2002 pertaining to booking of 11.8.1996 in support of the contention. Finally it was recorded by the Tribunal that during argument learned counsels for the parties mutually agreed to a rate of Rs.110/- per bag which was considered just and fair taking into account the entire facts and circumstances of the case. Accordingly, the Railway Claims Tribunal directed the Railways to pay to the applicant the damages for different number of bags of cement pertaining to each of the cases at the rate of Rs.110/- per bag holding all 4 the issues as settled accordingly. The respondent was directed in different orders to pay the amount of damages along with proportionate cost either within three months or two months failing which the respondent was to be liable to pay interest at the rate of 6% per annum till its realization. Learned counsel for the appellant submits that the applicant-appellant had made a claim of award of damages together with cost and interest pendente lite at the rate of 18% per annum from the respondent Railway whereas the orders in question are completely silent on the point of award of interest. It is submitted by learned counsel that although the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 are both silent on the question of grant of interest but it has been held by a catena of decisions of the Supreme Court and the High Courts that interest is to be awarded on any claim for compensation in terms of the provisions of Section 3 of the Interest Act and Section 34 of the Code of Civil Procedure. It is urged by learned counsel that in all such cases of money claims interest is to be granted at least from the date of application since the applicant is deprived of the use of money for the said period whereas the respondent is a gainer on that count. 5 It is further contended by learned counsel that there was no written consent of the parties and thus the claim of interest made in the application cannot be held to have been given up. In the said circumstances, the Tribunal ought to have allowed interest from the date of application. In support of the aforesaid proposition learned counsel relies upon a decision of the Supreme Court in the case of Thazhathe Purayil Sarabi & Ors. Vs. Union of India & Anr. : AIR 2009 SC 3098, in paragraphs 19 & 23 of which it has been laid down as follows : “19. Accordingly, we are unable to sustain the order of the Railway Claims Tribunal directing payment of interest on default of the payment of the principal sum within a period of 45 days. As we have indicated hereinbefore, when there is no specific provision for grant of interest on any amount due, the Court and even Tribunals have been held to be entitled to award interest in their discretion, under the provisions of Section 3 of the Interest Act and Section 34 of the Civil Procedure Code. 23. In the instant case, the claim for compensation accrued on 13th November, 1998, when Kunhi Moosa, the husband of the Appellant No.1, died on account of being thrown out of the moving train. The claim before the Railway Claims Tribunal, Ernakulam, (O.A.No. 68/1999) was filed immediately thereafter in 1999. There was no delay on the part of the claimants/appellants in making the claim, which was ultimately granted for the maximum amount of Rs. 4 lakhs on 26th March, 2007. Even if, the appellants may not be entitled to claim interest from 6 the date of the accident, we are of the view that the claim to interest on the awarded sum has to be allowed from the date of the application till the date of recovery, sine the appellant cannot be faulted for the delay of approximately 8 years in the making of the Award by the Railway Claims Tribunal. Had the Tribunal not delayed the matter for so long, the appellants would have been entitled to the beneficial interest of the amount awarded from a much earlier date and we see no reason why they should be deprived of such benefit. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period which the same could have been made available to the claimants.” Learned counsel for the Railways, on the other hand, submits that the impugned orders had fixed a just and fair amount of compensation on the basis of mutual agreement of the parties taking the rate of Rs.110/- per bag of cement although specific evidence had been produced on behalf of the Railways that the prevailing market rate of cement for the period in question was Rs.70/- per bag whereas the applicant had not produced the original Beejak in support of his claim. The rate of Rs.110/- per bag was thus fixed on the basis of the consent of the parties and it took into account all other relevant matters including the denial to the applicant of use of the money during the period in question. It is thus submitted by learned counsel that in 7 view of the mutual agreement between the parties there was no occasion for the Tribunal to award any further amount of interest over the already enhanced rate of Rs.110/- per bag granted in favour of the applicant-appellant. From the impugned orders it is evident that learned counsels for both the parties had mutually agreed that just and fair compensation would be arrived at by fixing rate of compensation for each bag of cement at the rate of Rs.110/- per bag taking into account the entire circumstances of the case although there was evidence to show that the rate of Rs.70/- per bag put forward on behalf of the respondent was supported by evidence of contemporary date when the damage was caused to the cement bags whereas there was nothing in support of the claim of Rs.140/- per bag made on behalf of the applicant/appellant. Once the order has been recorded on the basis of mutual agreement of the parties at a rate much higher than what was contended on behalf of the respondent Railways in view of the evidence produced by them, it would be presumed that the same had been fixed taking into account all matters including the 8 question of denial of the use of money for a period of nearly 10 years to the applicant. The contention of learned counsel for the appellant that there was no written consent in the matter has only to be noticed to be rejected in the face of clear recording of the mutual agreement of learned counsels of both the parties in the impugned orders under appeal. No such affidavit was filed immediately before the Tribunal taking a plea that the counsel was not authorized to give any such mutual agreed rate and no such ground has been taken even in the memorandum of appeals nor the same is supported by any affidavit that the applicant-appellant had not accepted the mutual agreement and it was without his consent. Further contention of learned counsel for the appellant that the award of interest was not given up is also unacceptable in view of the much higher rate of Rs.110/- per bag being fixed as the damages to be allowed to the appellant, in the face of the state of evidence of the parties on the record. In view of the fact that the orders under appeal are consent orders on the quantum of damages no benefit can be derived by the 9 appellant from the judgment of the Apex Court in Thazhathe Purayil Sarabi’s case (supra). All the appeals are, accordingly, dismissed. (Ramesh Kumar Datta,J.) Spal/