1 fa452 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.452 OF 1998 Union of India represented by the General Manager of Central Railway, Mumbai C.S.T. ...Appellant vs. M/s.Maharashtra State Electricity Board. ...Respondent Mr.A.N.Samant for the appellant Ms A.R.S.Baxi for the respondent CORAM : A.S.OKA,J. DATE : APRIL 19,2011 ORAL JUDGMENT: 1 Heard the learned counsel for the appellant and the learned counsel for the respondent. The challenge in this appeal is to the Judgment and order of the Railway Claims Tribunal dated 23 rd January 1996 passed in a claim made by the respondent. 2 According to the case of the respondent, an order was placed with M/s.Crompton Greaves Ltd. for supply of 150 MVA transformers with accessories. M/s. Crompton Greaves Ltd. dispatched the goods packed in 21 cases by Railway from Bhandup to Dhule. The Consignment was delivered at Dhule on 17 th October 1987. At the time of delivery, it was found that two cases were found in open condition with damage to two L.V.Bushings and one H.V.Bushing. The articles were in broken condition. On finding that there was a damage, the delivery was not taken by the respondent. A claim was lodged by the respondent with the appellant by a notice dated 20 th 2 fa452 November 1987. The appellant appointed a surveyor who assessed the damage and submitted a report. The demand made by the respondent was of a sum of Rs.3,07,188/- with interest. The claim was contested by the appellant. It was contended that the consignment consisted of only 5 cases and 16 loose items. It was contended that consignment loaded was packed with wooden support in open wagon selected by the consignor. It was contended that packing was not done properly by the consignor. It was contended that the loading was not supervised by the railway staff. It was admitted that at the destination, in two cases broken planks were noticed. It was admitted by the appellant that delivery was given of damaged material along with damage certificate dated 25 th September 1987. The damage recorded in the damage certificate was as regards 2 LV Bushings and 1 HV Bushing. The Tribunal found that the value of the damaged material was Rs.2,67,120/-. The Tribunal observed that according to the Surveyor, the value of the damage was equal to the repairing charges which will be to the extent of approximately 50% of the invoice value of the material. The Tribunal observed that though there was certificate on record that the damaged material cannot be repaired, the respondent agreed to the assessment of the surveyor by signing the Assessment report and therefore, it was held that the respondent was entitled to compensation to the extent of 50% of the invoice value of the damaged material. Therefore, 50% of Rs.2,67,120/- i.e a sum of Rs.1,33,560/- was granted by the Tribunal together with the interest of 12% p.a from the date of filing the claim application. 3 The learned counsel for the appellant submitted that there was no notice issued under section 78-B of the Indian Railways Act, 1890 (hereinafter referred to as the 3 fa452 said Act). He submitted that there was no basis for grant of compensation. Relying upon the decision of this Court in case of Maharashtra State Electricity Board Vs. Union of India (2003 1 Mh.L.J. 165), he submitted that interest granted is excessive. The learned counsel for the respondent supported the impugned Judgment and Award. 4 After having perused the impugned Judgment and after considering the submissions, I find that the respondent had placed on record an office copy of the notice dated 20th November 1987 which was duly acknowledged by the appellant on 26 th November 1987. The date of booking was 22 nd September 1987 and therefore, it was rightly held that the notice was given within a period of six months from the date of booking. The Tribunal rightly found that the notice under section 78-B of the said Act was served within stipulated time. 5 It must be noted that even the damage certificate records that the two L.V.Bushings and one H.V. Bushing were damaged. The Tribunal held that the respondent had agreed to the assessment of the Surveyor by signing Assessment Report. Though invoice value was found to be Rs.2,67,120/- in view of the opinion of the Surveyor that the value of the damage was equal to repairing charges which will would be to the extent of 50% of the invoice value of damaged articles, the compensation of Rs. 1,33,560/- has been granted. As the said compensation is based on the assessment made by the Surveyor of the appellant, no fault can be found with the quantum of compensation. 6 In the case of Maharashtra State Electricity Board vs. Union of India (supra), this Court was dealing with the claim filed in the year 1991. Considering the then 4 fa452 prevailing rates of interest of nationalised banks, this Court held that the interest payable by the Railways will be at the rate of 9% p.a. In the present case, the claim is filed in the year 1990. Therefore, in terms of the decision of this Court, interest will have to be brought down to 9% p.a. 7 Hence, I pass the following order : i) Impugned Award is modified only to the extent that the interest will be payable at the rate of 9% p.a instead of 12% p.a. ii)Appeal is allowed only to the aforesaid extent. iii)If the entire interest at the rate of 12% p.a has been withdrawn by the respondent, the excess amount received by the respondent shall be deposited by the respondent with the Tribunal within a period of twelve weeks from today. iv)There will be no order as to costs. JUDGE