THE HON’BLE SRI JUSTICE K.C.BHANU C.M.A.No. 1131 of 2008 (On being mentioned) JUDGMENT: A mistake has occurred in the earlier Judgment dated 26-09-2011 in dealing with the appeal after hearing both sides. 2. Earlier Judgment shows that the matter relates to grant of interest on the compensation amount from the date of application till the date of award. But in fact, the issue involved in this appeal is not the same. Today, on being mentioned, the earlier judgment dated 26- 09-2011, is recalled and after hearing the counsel for both sides, the following fresh Judgment is passed: 3. This appeal, at the instance of M/s. Cement Corporation of India Limited, represented by its Zonal Manager, is directed against the order dated 02-12-2005 in O.A.No.3 of 2000, on the file of the Railway Claims Tribunal, Secunderabad Bench at Secunderabad, (for brevity ‘the Tribunal’). 4. Brief facts that are necessary for disposal of this appeal are that on 17-04-1997, the appellant booked the consignment of 33,665 cement bags in 29 wagons under RR Nos.089601, 089602, 089603, 089605 and 089607 from their plant at Tandur to New Goods Complex, Sanathnagar. The said RRs were pre paid at railway risk rate. The consignment was unloaded from the wagons by the appellant in good condition on 18-04-1997 at 19.45 hours itself and staked in sound condition in goods shed, which was not fully covered with its four sides and on the intervening night, there was heavy rain, due to which 8,857 cement bags pertaining to 23 wagons were damaged. But however, the railways denied their liability to pay the compensation. Therefore, the appellant filed this application claiming compensation of Rs.4,70,850/- with interest at 18% per annum on the amount of compensation claimed. 5. The respondent-railways filed written statement while admitting the issuance of RRs and booking of consignment from Tandur to Sanathnagar, stated that a) RR was issued on “said to contain” basis, b) wagons selected by sender, c) loading not supervised by the railway staff, d) loading and seal at factory siding, e) 18” space not left near the doors, f) 8” space not left around the wagons, g) Train load Inv. 1 to 7 and h) booked under ‘L’ condition i.e. loading and unloading by consignor and consignee respectively. They contended that the wagons were carried on to the destination without any transit delay and the same were staked in sound condition by the consignee himself after he himself unloaded the same. Therefore, if any damage caused, until it was removed by the consignee, does not fasten any liability on the railways, hence, prays to dismiss the application. 6. Based on the above pleadings, the following issues were framed by the Tribunal: 1. Whether the consignment was in transit in terms of definition of under Section 2 clause 21 (B) of Railways Act when the cement bags were damaged by rain? 2. Whether the respondent is liable for damages on account of negligence? 3. To what relief? 7. After considering the oral and documentary evidence, the Tribunal dismissed the application. Aggrieved by the said order, the appellant has filed this appeal. 8. Heard the learned counsel for the appellant and the learned standing counsel for the respondent-railways and perused the record. 9. Learned counsel for the appellant contended that the consignment was handed over to the railways, therefore, the respondent-railways is liable to pay the damages caused to the consignment when the goods are within the custody of railway administration. 10. On the other hand, the learned standing counsel for the respondent-railways contended that since the goods were unloaded from the wagon by the appellant, it is his responsibility to take all necessary precautions so that no damage is caused to the goods and those precautions have not been taken by the appellant, and the claims Tribunal rightly dismissed the O.A. There are no grounds to interfere with the same. 11. The factual matrix is not in dispute. The appellant booked the consignment with respondent-railways from Tandur to Sanathnagar. The consignment contained 33,665 cement bags in 29 wagons under five railway receipts. The railway receipts were pre paid at railway risk rate. The consignment in full rake arrived at 5 a.m. on 18-04-1997. The rake was placed for unloading by the appellant at 17.30 hours on the said day. 12. The evidence of P.W.1 clearly goes to show that the goods in the wagons were got unloaded by the appellant himself and were staked in the sound condition in the goods shed platform on 18-04- 1997. Therefore, it is the duty and responsibility of the appellant to take the stocks from out of the railway platform. That had not been done so. The railways cannot be held responsible for the damage caused to the consignment because when the goods were got unloaded by the appellant himself from the wagons, it is its duty to take care of the goods. It is not the case of appellant that the damage to the stock was caused during transit. The Tribunal rightly passed the order and the appellant has not taken any preventive measures so as not to damage the consignment in question. If there is any negligence on the part of the railway administration in causing damage to consignment during transit period, certainly, the railway administration is liable to pay the compensation. Negligence means a breach of duty caused by the omission to do something which a reasonable man guided by those considerations, which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. The appellant has taken care of in removing and in unloading the cement bags, it is his duty to protect the cement bags after unloading. Simply because they were unloaded and kept in the goods shed, it cannot be said that it is the responsibility of the railways to protect the goods till they were got moved from the goods shed. Therefore, the care and caution that may be taken by the appellant had not been taken in protecting his own goods after unloading the same from the wagons. Therefore, the impugned order does not warrant any interference by this Court and the appeal is liable to be dismissed. 13. In the result, the Civil Miscellaneous Appeal is dismissed. There shall be no order as to costs. ____________________ 22nd December 2011 kvr