IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 03.03.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.480 of 2003 M/s. Ambika Fashion Pvt. Limited 56, Godown Street Chennai – 600 001 ... Appellant Versus Union of India owning Southern Railway represented by the General Manager Southern Railway Chennai – 600 003 ... Respondent Prayer:- This appeal is preferred against the order dated 12.12.2002 the file of the Railway Claims Tribunal, Chennai Bench, allowing in pa awarding a sum of Rs.6,600/- to the appellant as compensation. For Appellant : No Appearance For Respondent : Mr. T.S. Raja Mohan - - - J U D G M E N T The above appeal has been filed by the appellant against the ord dated 12.12.2002 made in Case No.9700285 of 1997 on the file of t Railway Claims Tribunal, Chennai Bench, allowing in part by awarding a s of Rs.6,600/- to the appellant as compensation. 2. Having not been satisfied with the said award, the appeal has be filed. 3.The short facts of the case, are, as follows:- (i) A consignment of art silk sarees weighing approximately 118 kg was entrusted to the Southern Railway for carriage and the same was book in the break van of Navjeevan Express, Train No.6045, on 24.01.1997 as p R.R.No.315996 from Surat to Madras Central. The Railway Receipt w booked for the declared value of Rs.1,70,000/- and freight charges https://hcservices.ecourts.gov.in/hcservices/ Rs.920/- was paid to the respondents. The applicant was shocked to no that two bales of art silk sarees out of six bales were missin Immediately, the applicant issued a notice dated 31.01.1997 complaini about the loss of two bales. Since the claim was not settled, t applicant filed the Case No.9700285 of 1997 claiming compensation Rs.62,907/- under various heads together with interest at the rate of 1 per annum from 24.01.1997 till recovery with costs. (ii) The respondent has resisted the above claim. In his rep statement, the respondent while admitting the booking of the consignmen has denied the service of valid notice under Section 106 of the Railwa Act. The applicant has not paid any percentage charge on value at t time of booking nor restricted under Section 103 of the Railways Act. T applicant is not entitled for any indirect or consequential loss und Section 102(d) of the Railways Act. The Railway is not liable to refu the proportionate freight charges and interest at the rate of 18% p annum. In view of the above, the respondent prays to dismiss t application. (iii) Based on the above contentions of the parties, the followi issues were framed by the Railway Claims Tribunal, for determination:- “1. Whether there was valid claim under Section 106 of Railways Act, 1989? 2. Whether the railways are absolved of its liability for any indirect or consequential loss under Section 102(d) of the Railways Act, 1989? 3. Whether the Railways used reasonable foresight and care in the carriage of the goods? 4. Whether the applicant is entitled to any compensation and if so, whether it is liable to be restricted under Section 103 of the Railways Act, 1989 read with Rule, 3 Sub Rule (iii) of the Railways (Extent of Monetary Liability and Prescription of Percentage Charge) Rules, 1990? 5. What reliefs the applicant is entitled to?” (iv) Under Ex.A.3, the applicant has intimated the Parcel Offic regarding the shortage. This is deemed to be a valid Claim Notice und Section 106(2) of the Railways Act, 1989. Hence, the first question answered in the positive. (v) Under Section 102(d) of the Railways Act, 1989, a railw administration shall not be responsible for the loss, destruction, damag deterioration or non-delivery of any consignment for any indirect consequential loss or damage or for loss of particular market. Hence, t second question is answered in affirmative. (vi) The Joint Survey Report as in Ex.B-4 clearly admits non-delive of 132 kgs. and to that extent, the Railway is liable. The third questi https://hcservices.ecourts.gov.in/hcservices/ is answered accordingly. (vii) The liability of the Railway Administration is restricted und Section 103 of the Railways Act for non-delivery of the consignment unle the value of such consignment is declared and the percentage charges pa as per Section 103 (2). In Exs.B-1 and B-2, the value of the consignme has been declared. Though, it has been endorsed on the Railway Receip Ex.B-2 that the value has been declared as Rs.1,70,000/- and endorseme made that the percentage charge has been paid, actually only Rs.920/- h been collected which is only the freight charges. The Presenting Offic has now submitted a letter from the Rates Section showing that t percentage charges leviable for the said consignment under Parcel Way Bi No.315996, dated 24.11.1997 is Rs.1,502/-. (viii) In the Joint Survey Report, Ex.B-4, the shortage has be admitted as 132 kgs. Hence, the liability of the railways is restrict under Section 103 of the Railways Act at the rate of Rs.50/- per k Therefore, the applicant is entitled to a compensation of Rs.6,600/-. (ix) The fifth question is answered that the respondent shall pay sum of Rs.6,600/- to the applicant together with interest at the rate 6% per annum from the date of application till recovery. Parties to be their own costs. 4. Learned counsel appearing for the appellant argued that t consignment was declared as Rs.1,70,000/- and freight charges of Rs.920 was paid to the Railway. The learned counsel further argued that t consignment of Art Silk Sarees had been purchased from Simple Silk Mill Surat, as six bales of textiles. The same was booked with the Railwa and Railway Receipt No.315996, dated 24.01.1997 was issued acknowledgment. Out of six bales, four were delivered, two bales were n delivered. The said goods was booked on 24.01.1997, in the break van Navjeevan Express, Train No.6045, as per Railway Receipt No.315996, fr Surat to Madras Cental. 5. The learned counsel further argued that the total value of the s bales was a sum of Rs.1,70,000/-. The shortage of two bales, containi Art Silk Sarees, weighing 118 Kgs. was lost in transit. The value of t goods lost is Rs.52,365/-. In order to prove the weight of the good number of bales and kind of goods, the applicant had produced invoice a bills, Railway Receipt and gate pass and these were marked as exhibits to P6. After establishing the case, the Railway Claims Tribunal h allowed in part, stating that the applicant is entitled to receive a s of Rs.6,600/- for non-delivery of two bales, weighing about 132 kgs. F every Kilogram cost, during transit, the Railway is liable to pay on Rs.50/- as per Section 103 of the Railways Act, 1989 and that t applicant is not entitled to any indirect or consequential loss or dama or for loss of particular market under Section 102(d) of the Railways Ac 1989. The learned counsel further argued that the Railway h categorically admitted that two bales of Art Silk Sarees were n delivered. Sales tax for the entire goods loaded on the train had alrea been paid. This clearly proves that the applicant is a bonafide mercha https://hcservices.ecourts.gov.in/hcservices/ and his purchase and selling of goods are subject to taxation of t Government. So, the applicant's claim is a bonafide one. 6. Learned counsel for the Railway argued that as per Section 103 the Railways Act, 1989, the Railway is liable to pay only Rs.50/- for t shortage of 1 Kg. The same was well considered by the Railway Clai Tribunal for granting compensation. As such there is no discrepancy the order passed by the Railways. 7. On considering the facts and circumstances of the case a arguments advanced by the learned counsel on either side and on perusi of the impugned order of the Railway Claims Tribunal, this Court is of t considered view that as per Exs.P1, P2, P3, P4, P5 and P6, which a invoices and bills for purchasing the goods and Ex.P5 is the Railw Receipt, it is clearly proved that the applicant had booked six bales textiles from Surat to Madras Central on 24.01.1997 as per Railway Recei No.315996. As such, the Railway is liable to deliver six bales textiles at Madras. Instead of that, the Railway has delivered only fo bales of the textile sarees. The shortage of two bales has been admitt by the Railway. As such the value of the goods is to be calculated a paid to the applicant as per valid invoice and bills. If this followed, the applicant will not be prejudiced. If the Section 103 of t Railways Act, 1989, is applied in the instant case, the applicant, who h already paid the goods value to the vendor and the corresponding sales t to the Government will suffer pecuniary loss in his business transactio Such a person should be adequately compensated for the loss as per t facts of the case. 8. Therefore, the applicant is entitled to receive his claim amou of a sum of Rs.62,907/- with interest at the rate of 6% per annum from t date of application till the date of recovery of amount, as this is fou to be fair and equitable. 9. Therefore, this Court directs the respondent/Southern Railway deposit the compensation amount as mentioned above, after deducting t part award amount of the Railway Claims Tribunal, into the credit of Ca No.9700285 of 1997, on the file of the Railway Claims Tribunal, Chenn Bench, within a period of six weeks from the date of receipt of th order. 10. In the result, the above Civil Miscellaneous Appeal is allowe Consequently, the order dated 12.12.2002, made in Case No.9700285 of 199 on the file of the Railway Claims Tribunal, Chennai Bench, is modifie Accordingly ordered. There is no order as to costs. smn https://hcservices.ecourts.gov.in/hcservices/ Sd/- Asst. Registrar //True Copy// Sub Asst.Registrar To 1. The Railway Claims Tribunal Chennai +one cc to Mr.R.Madana Gopal, Advocate SR.No.15617 +one cc to T.S.Raja Mohan, Advocate SR.No.16160 C.M.A.NO.480 OF 20 SSK(CO) SG(19.5.11) 03.03.20 https://hcservices.ecourts.gov.in/hcservices/