HONOURABLE SRI JUSTICE C.V. RAMULU CIVIL MISCELLANEOUS APPEAL No.1042 OF 2005 JUDGMENT: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act 1987, is directed against an order made in O.A.A. No.124 of 1998 dated 09-08-2005 on the file of the learned Railway Claims Tribunal, Secunderabad Bench at Secunderabad, whereunder the clam application filed by the respondent herein, under Section 16 of the Indian Railways Act 1989 (for short “Railways Act”), claiming compensation of Rs.3,19,710/-, the value of the material short delivered by the Railways, was allowed as prayed for along with interest at the rate of 12% per annum. 2. Appellants are the South Central Railway and respondent is the applicant. 3. For the sake of convenience, the parties herein are referred to as arrayed in the O.A.A. before the Tribunal. 4. It appears, though 50 boxes of BC Marine Premium were shipped from Korea, arrived at Chennai Port on 10-03-1997 and after it was cleared by the Assistant Commissioner of Customs, the same was transported from Chennai to Visakhapatnam, consigned to Assistant Commissioner of Customs, Visakhapatnam vide RR No.G591257 dated 29-05-1997 for ultimate delivery to the applicant at Visakhapatnam, on arrival at Visakhapatnam, 44 boxes of BC Marine premium each containing 2 rolls, were short delivered. The short delivery has been accepted by the Railways as per the open delivery report dated 29-08-1997 and the said short delivery is due to negligence on the part of the railways. Thus, applicant claimed Rs.3,19,710/- as compensation, which includes custom duty of Rs.1,32,468/- levied at 12% + C.F. charges of Rs.40,000/-. Applicant also claimed interest at 24% per annum from 29-08-1997 till the date of payment. 5. The railways filed a counter disputing title of the applicant and stating that the claim notice issued by the applicant is barred by limitation. It is also pleaded that consignment was defectively packed and the claim is exaggerative. 6. On the basis of the pleadings, the following issues were settled by the Tribunal for trial: “ 1) Whether the subject consignment suffered shortage while in transit as alleged ? 2) Whether the Railway administration is liable for the alleged short delivery ? 3) Whether valid claim notice under Sec.106 of I.R. Act has been served on the Respondent Railway administration and is it barred by limitation ? 4) What is the value of the goods short delivered ? 5) Whether the Applicant is entitled to interest as claimed / 6) To what relief ? ” 7. Applicant examined its Managing Partner as AW.1 and also marked documents Exs.A-1 to A-7. Railways examined its Chief Parcel Supervisor, Visakhapatnam as RW.1 and marked documents Exs.R-1 to R-3. 8. On all the issues, findings were recorded by the Tribunal in favour of the applicant and the claim was allowed as prayed for. Aggrieved of the same, the present appeal is filed. 9. Now, Sri B.H.R. Chowdary, learned counsel for the Railways – appellant, strenuously contended that since RR was issued under the obligation of “OR” (Owners Risk) as contemplated under Section 97 of the Railways Act, railways is not responsible for any shortage that has resulted while delivering the goods. He further contended that absolutely there was no evidence to show that value of the goods was as claimed by the applicant and that it was noted on the RR that it was a defective package, therefore the question of allowing the claim, as claimed for, does not arise. 10. None appears for the applicant in spite of service of notice. 11. It may be necessary to notice the findings recorded by the Tribunal under issue Nos.4 and 5, which read as under: “ ISSUE NO.4 The Applicant has sought compensation of Rs.3,77,310/- including custom duty and C&F charges. During trial they have filed the commercial invoice, Ex.A2 showing the value of the consignment at U.S. $ 4450 for 50 boxes of suit consignment. No other value has been indicated during trial, nor the Respondent railways have disputed the quantum of claim by the Applicant. In the absence of any other value to decide the quantum of compensation for the shortage at the time of delivery, an equitable decision would be to decide the amount taking the value indicated in the Commercial Invoice Ex.A2. and the custom duty shown by the Applicant. The Applicant has also included C & F charges of Rs.40,000/- in the total claim of Rs.3,19,710/-. In view of the fact that the shortage has been established, the compensation claimed is admissible. As far as the quantum of compensation, 44 boxes out of 50 boxes shown under commercial invoice, Ex.A2, have been found short. The approximate value of these work out to Rs.1,47,250/-. In as much as the Custom Duty and the C & F charges have to be paid on the original value of the whole consignment, the amount of Rs.1,32,468/- claimed towards custom duty and C&F charges are also admissible in addition to the basic value of the consignment short delivered. Therefore, the Applicant is entitled for the amount of compensation as claimed, except interest. ISSUE No.5 The Applicant has claimed interest @ 24% p.a. from 29.6.1997 the day on which the application was filed, till the date of payment, which is considered exorbitant. Considering the cost of borrowing before 2001-2002, it would be reasonable to allow interest at 12% from 29.6.1997 to 31.3.2000, whereafter the rate of 9% p.a. would be an equitable rate. This issue is decided accordingly.” 12. From the above, it is clear that Ex.A-2 is the commercial invoice showing the value of the consignment as US $ 4450 for 50 boxes of the consignment. The railways have admitted the shortage of 44 boxes out of 50 while delivering the same to the applicant. Therefore, custom duty and C & F charges were included. Therefore, the contention of the learned counsel for the railways that value of the goods is not known and there is no proof to show the same and that the applicant has not mentioned the value of the goods, is without any substance. Everything is on record. Exs.A-1 to A-7 have categorically demonstrated the claim of the applicant in toto. In fact, the railways has not cross-examined AW.1 to elicit anything otherwise than what he had stated. 13. Further contention of the learned counsel for the railways is that the applicant is not entitled to any interest under the Railways Act. I am not inclined to accept this contention nor I am inclined to reduce the rate of interest awarded by the Tribunal. 14. For the aforesaid reasons, I am of the opinion that the appeal is devoid of merits and is liable to be dismissed. 15. Accordingly, the Civil Miscellaneous Appeal is dismissed. No order as to costs. _____________________ C.V. RAMULU, J August 19, 2010. PV