IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 MFA.No. 70 of 2005() ----------------------------- OA.121/1998 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM .................... APPELLANT/RESPONDENT IN R.C.T. ---------------------------------------------------- UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, CHENNAI. BY ADV. MR.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT/APPLICANT IN R.C.T. --------------------------------------------------- THE MYSORE FERTILIZER COMPANY LTD., PARLI ROAD, MELAMURI, PALAKKAD – 678 006 REPRESENTED BY ITS REGIONAL MANAGER. BY ADV. MR.N.L.KRISHNAMOORTHY MR.K.LAKSHMINARAYANAN SMT.SATHYA SHREEPRIYA THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA.No. 70 of 2005 ORDER ON I.A. NO.1422/2005 IN M.F.A. NO.70/2005 DISMISSED 16/09/2009. SD/- M.N.KRISHNAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs. M.N. KRISHNAN, J. = = = = = = = = = = = = = = M.F.A. NO. 70 OF 2005 = = = = = = = = = = = = = = = Dated this the 16th day of September, 2009. J U D G M E N T This appeal is preferred against the judgment of the Railway Claims Tribunal, Ernakulam in O.A.121/98. The short facts necessary for the disposal of the case are briefly stated as follows. The applicant company entrusted a consignment containing 560 bags of bonemeal with the respondent, Railway for transportation from Jalandhar Cantt. for delivery at Palghat junction. The consignment reached the destination on 6.9.97. It was found that out of the 560 bags 202 bags were completely cut, torn and the contents became wet and damaged. The damage assessed by the respondent was 15%. The Railway on the other hand would contend that the damage was only 15% and in spite of repeated demands they did not clear the goods. The Tribunal after considering the entire materials awarded a sum of Rs.49,068/- with 9% interest per annum from the date of registration till payment. It is aggrieved by that order the present appeal is preferred. M..F.A. 70 OF 2005 -:2:- 2. The learned counsel for the appellant very strongly contends before me that at any rate the applicant company was liable to pay the wharfage fixed by the Railway authorities and therefore the claimant is not entitled to any amount. The claim of wharfage and demand of wharfage are independent matters which has to be separately dealt with and in the absence of any prayer of set off or counter claim I think the Tribunal was not justified in considering that question one way or the other. Therefore I leave the issue of wharfage open making it very clear that in case of an award the Railway is not expected to withhold the amount contending that wharfage may be realised from the applicant/company. 3. Now coming to the facts of the case. 560 bags of bonemeal were booked. It was entrusted on 21.3.97 and it reached Palghat only on 6.9.97, i.e. after a passage of 5 months and 15 days time. It has also come out in evidence that the wagon was changed and it was put in another wagon which might have caused the delay as well as damages to M..F.A. 70 OF 2005 -:3:- the articles. When the bonemeal reached the destination at Palghat it was found that 202 bags were damaged. The general survey report also did show that 202 bags were bad, as gunny torn and contents got wet and appeared as caked and discoloured. The above condition of the consignment was on account of the carelessness on the part of the Railway administration. The Railway, one of the biggest establishment in the country which is transporting lots and lots and wagons and wagons of luggage from the southern tip to the northern most peak, being the biggest establishment in the country, is expected to take and bestow care and attention when consignment is entrusted to them for proper delivery. It has to be remembered that when articles like bonemeal are entrusted which is used as a manure for different agricultural process one has to bear in mind that the person who had entrusted the contents would be really acting on the orders given to it by the farmers of the locality. Here almost the season was over when the bonemeal reached the destination. It has to be stated that M..F.A. 70 OF 2005 -:4:- 202 bags of bonemeal was in a bad condition at that time. Even during that there was a joined request made by the railway authorities along with the claimant and the railway authorities fixing the damage at 15% and therefore a further request was again made which also resulted in the fixing of same percentage and therefore they did not take the delivery of the goods at all and it has resulted in the litigation. 4. I make it again very clear that this Court is not expressing any opinion on merit with respect to the levy of wharfage and entitlement of the railways to get the freight charges for the reason that it is not necessary to consider the same. Now another contention raised by the learned counsel for the railways is to annul the proportionate reduction of the freight charges which is already paid. It is argued that since the value of the bag is given, then the question of other charges does not arise. It has to be remembered that the value of the bonemeal per bag is given, suppose it is a commodity which is not available in the local market and has to be brought from other places then necessarily one has to M..F.A. 70 OF 2005 -:5:- pay the freight charges for getting the same. No materials are placed before the Tribunal to establish that. What is mentioned in the order is bonemeal was not available for redelivery. So taking into consideration that aspect I am not inclined to interfere with the order of reimbursing the proportionate freight charges. Therefore on a consideration of the entire materials I hold that this Court is not interfering with the decision rendered on the damages sustained on 202 bags of bonemeal plus the proportionate reimbursement of freight charges. Therefore the appeal lacks merit and the same is dismissed. M.N. KRISHNAN, JUDGE. ul/-