1 F.A.NOS.269 & 270/1992. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. FIRST APPEAL NO.269 OF 1992. The Jalgaon Jilha Sahakari, Doodh Utpadak Sangh Limited, Jalgaon, Erandol Naka, At & Post.Jalgaon, Dist.- Jalgaon. Through its Managing Director Shri Subhash Namdeo Sonawane, residing as above. ...Appellant. (Ori.Plaintiff.) VERSUS 1. The Union of India, Representing the Central Railway, Through General Manager, Central Railway, Bombay VT. 2. The State of Maharashtra, Through the District Collector, Jalgaon, Dist.Jalgaon. ...Respondents. (Ori.Defendants ) WITH FIRST APPEAL NO.270 OF 1992. The Jalgaon Jilha Sahakari, Doodh Utpadak Sangh Limited, Jalgaon, Erandol Naka, At & Post.Jalgaon, Dist.- Jalgaon. Through its Managing Director Shri Subhash Namdeo Sonawane, residing as above. ...Appellant. (Ori.Plaintiff.) 2 F.A.NOS.269 & 270/1992. VERSUS 1. The Union of India, Representing the Central Railway, Through General Manager, Central Railway, Bombay VT. 2. The State of Maharashtra, Through the District Collector, Jalgaon, Dist.Jalgaon. ...Respondents. ( Ori.Defendants ) ... Mr.R.L.Kute,Advocate, h/f Mr.R.N.Dhorde, Advocate for the applicants in both the appeals. Mr.Manish N.Navandar, Advocate, for respondent No.1 in both the appeals. Mr.N.R.Shaikh, AGP for respondent No.2 in both the appeals. ... CORAM: A.V.NIRGUDE,J. Date : 25th August, 2009. ORAL JUDGMENT: 1. Both these appeals can be decided by this common judgment. The parties are common and the causes of action in the suits are some what similar. 2. The appellant is a Co-operative Society formed by Milk Producers of Jalgaon. The 3 F.A.NOS.269 & 270/1992. appellant Society regularly transports milk from Jalgaon to Greater Bombay Milk Scheme. It is common ground that the appellant normally loaded a railway tanker with pasteurized milk connected to a particular parcel train by about 1400 hours from Jalgaon. This train generally reaches Byculla at about 4 or 5 a. m on the next day i.e. within a period of about 14/15 hours. 3. In First Appeal No.269/1992, it is the case of the appellant that on 14.10.1985, 40,000 liter pasteurized buffalo milk was loaded in a tanker and was dispatched by the parcel train from Jalgaon at 14 hours. But the tanker was detained en route and it ultimately reached Byculla station at about 24.30 hours on 16.10.1985. The transit period thus got elongated for 57.5 hour. Due to such detention, the milk got damaged, it became unfit for human consumption. The appellant asserted that the loss of Rs.1,84,000/- should be made good by the respondent Railway Administration. The appellant also claimed that in case the Court does not allow their claim as against the Railway Administration, the Government of Maharashtra and the Greater Bombay Milk Scheme should be made liable for the damages because they took delivery of the milk in the tanker without any protest. 4 F.A.NOS.269 & 270/1992. 4. In First Appeal No.270/1992, the case of the appellant was as under: . On 25th of June, 1985, the appellant loaded similar quantity of pasteurized buffalo milk in a tanker which was connected to the parcel train which left Jalgaon at 1400 hours. The train got delayed in route and reached Byculla station only at 2.30 hours on 26.06.1985 after about 62 hours in transit. The appellant again claimed Rs. 1,84,000/- for damages on account of the milk got damaged and curdled. 5. In both these cases, the respondent No.1 representing the Central Railway Administration took up a stand that in First Appeal No.269/1992 the Railway traffic beyond Igatpuri towards Byculla was seriously affected by derailment of 1 Dn Calcutta mail and so the Parcel train carrying the milk tanker was detained en route. They stated that the detention was 'unavoidable' and so the Railway Administration was not responsible for damage to the milk. It is also contended that the milk got damaged due to some inherent defect in the milk itself. 6. In the First Appeal No.270/1992, the defence of the respondent No.1 Railway Administration was that the train carrying the milk container was held up between Kasara and Kalyan Railway Station 5 F.A.NOS.269 & 270/1992. due to very heavy rains in Mumbai region. Due to such heavy rains, there was serious dislocation of traffic. In this case also they asserted that the milk got curdled due to some inherent and latent defect. The Railway Administration also pointed out that similar consignment of milk booked at about same time from Dhule reached at the same time at Byculla, and despite delay, the milk in such consignment was delivered in good condition without any complaint. So, the appellant's consignments had inherent defect. . The defence of Respondent No.2 the State of Maharashtra representing the Greater Bombay Milk Scheme: . They admitted that that both the consignments of milk were found sour and unfit for human consumption. They stated that they conducted tests of the milk at Worli and then the consignments were rejected. They stated that they paid Rs.0.50 per liter for these consignments as against the normal rate. The respondent No.2 also reiterated that the milk consignments reaching at the same time from Dhule was received in good condition. 7. After taking into account the rival contentions, the learned Railway Claims Tribunal, Nagpur Bench, framed certain issues and held that the damage to the milk was caused due to 6 F.A.NOS.269 & 270/1992. inherent defect and that the delay in transit in both the cases was beyond the control of the Railway Administration. It further held that it could not decide due to lack of jurisdiction as to whether the respondent No.2 would be liable for damages. 8. After hearing both the sides, following points arise for my consideration: (i) Whether the appellants proved that they sustained loss on account of curdling of milk due to delay in delivery of the same ? (ii) Whether the respondents prove that the delay in transportation of the milk was due to the act of god ? (iii) Whether they further prove that the due to inherent defect, qualify or vice of the milk caused curdling of the milk ? (iv) Whether they further prove that they used reasonable foresight and care in the carriage of the milk? 9. There is practically no challenge to the fact that the milk got curdled by the time it reached finally to it's destination after about 60 hours. There is ample oral as well as documentary evidence to prove that the milk was loaded in a Special Container/tanker at Jalgaon Station at appropriate time i.e. in the noon/ afternoon in 7 F.A.NOS.269 & 270/1992. both the cases. It has also come on record that at the time of loading of the milk it's temperature was noted and it was within the acceptable limits. After about 60 hours when it reached Bhyculla Railway Station, the Greater Bombay Milk Scheme (GBMS) Officers took it's delivery. They tested the milk sample in their Laboratory and found that it was curdled and had become unfit for human consumption. The appellant recorded depositions of witnesses. They were cross-examined not only by the appellant and the respondent no.2 but even by the learned members of the Tribunal. The facts mentioned above described despite cross-examination have gone unchallenged on record. The witnesses of the appellant also proved the fact that the quantities of the milk mentioned in the claim were loaded in the tankers. They further stated that the Greater Bombay Milk (GBMS) offered and paid a paltry sum of Rs.0.50 per liter as the price of the defective milk as against expected price over Rs.4/- per liter. The fact that the milk reached it's destination instead of within 15 hours, but took almost 58 to 60 hours in both these cases is also not in dispute. I have, therefore, no difficulty in recording my findings that the appellants could successfully proved that they sustained the loss of the amount claimed due to curdling of the milk. 8 F.A.NOS.269 & 270/1992. 10. The learned Advocate appearing for the respondent Shri Navandar fairly conceded that in First Appeal No.270/1992 the Railway Administration can not plead the defence "vis major" (act of god ). He further conceded that the delay was occasioned due to derailment of a train which was moving towards Mumbai ahead of the train in which the milk was being transported. He said, this defence would be applicable only in First Appeal No.269/1992. Before I discuss this point, I must reproduce Section 93 of the Railways Act, 1989, which is para materia to Section 73 of the Old Act of 1890.It reads as under: "Sec.93. General responsibility of a railway administration as carrier of goods.- Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage or deterioration in transit, or non- delivery of any consignment, arising from any cause except the following, namely:-- (a) act of God; (b) act of war; (c) act of public enemies; (d) arrest, restraint or seizure under legal process; 9 F.A.NOS.269 & 270/1992. (e) orders or restrictions imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorised by it in this behalf; (f) act or omission or negligence of the consignor or the consignee or the endorsee or the agent or servant of the consignor or the consignee or the endorsee; (g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods; (h) latent defects; (i)fire, explosion or any unforeseen risk: Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid causes, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the railway administration further proves that it has used reasonable foresight and care in the carriage of the goods. " 11. It is the case of the respondent No.1 Railway Administration in appeal No.269/92 that the train in question got delayed due to heavy rains. But 10 F.A.NOS.269 & 270/1992. to prove this aspect of their defence they practically did not lead any oral evidence. 12. It appears from the record of the Lower Cort that the learned tribunal on receipt of the pleadings of the parties, framed certain issues and then allowed the parties to adduce evidence through the affidavits of their witnesses. Accordingly, the appellants filed affidavits of their Managing Director Shri Subhash Sonawane, Shri Madhukar Patil, Shri Amrut Pawar, Shri Prafulla and Shri Balkrishna Kanade. From the side of the respondent/Railway Administration, the affidavit of Shri P.N.Kanfade, Chief Law Assistant, Central Railway, Bombay was brought on record. But out of six witnesses named above, only two were cross-examined namely Subhash Sonawane and Balkrishna Kanade. The Railway Administration's witness Shri P.N.Kanfade was not subjected to cross-examination at all. 13. The question is to what extent the oral evidence adduced by the parties should be read in evidence. I am aware that Section 18 of the Railways Claims Tribunal Act, 1987, substantially simplify the procedure that is adopted by the Claims Tribunal. Section 18 of the Railways Claims Tribunal Act, 1987, reads as under: "18. Procedure and powers of Claims Tribunal.--(1) The Claims Tribunal shall not be bound by the procedure 11 F.A.NOS.269 & 270/1992. laid down by the Code of Civil Procedure, 1908, (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Claims Tribunal shall have powers to regulate its own procedure including the fixing of places and Limes of its inquiry. (2) The Claims Tribunal shall decide every application as expeditiously as possible and ordinarily every application shall be decided on a perusal of documents, written representations and affidavits and after hearing such oral arguments as may be advanced. (3) The Claims Tribunal shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while vying a suit, in respect of the following matters, namely :- (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; ( c) receiving evidence on affidavits; (d) subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or document or copy of such record or document from any office; (e) issuing commissions for the examination of witnesses or documents: (f) reviewing its decisions; (g) dismissing an application for default or deciding it ex parte, (h) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (i) any other matter which may be prescribed." 12 F.A.NOS.269 & 270/1992. 14. What is pertinent to be noted in this provision is that though the Claims Tribunal is not bound by the procedure laid down by the Civil Procedure Code, 1908, but should be guided by the principles of natural justice etc. The provisions of Section 18 of the said Act,1987 further allowed the Claims Tribunal to receive evidence on affidavits and so it, in these two cases, allowed the affidavits on record of as many as six witnesses named above. But quite curiously, it allowed the respondents to cross-examine the main two witnesses of the appellants. They were thoroughly cross-examined. The Claims Tribunal while delivering the judgment used extensively certain "admissions" during the cross-examination given by the appellant’s witness No.1 in their discussion. But after recording of the cross examination of the witnesses of the appellants was over in March,1991 and though the judgment was delivered in June, 1991, during intervening three months period, the learned Members of the Claims Tribunal did not think it fit to ask the witness of the Railway Administration Shri Kanfade, who had furnished his affidavit on record to face cross-examination. This was necessary to even the balance of procedural aspect of the trial. 15. Shri Navandar, learned Advocate for 13 F.A.NOS.269 & 270/1992. respondent No.1, tried to suggest that the appellant’s did not demand such opportunity. He said, there is nothing on record to show that the appellants requested the Tribunal to call Shri Kanfade to witness-box for cross-examination. I am afraid, after allowing the respondents to thoroughly cross-examine two important witnesses of the appellant, it was the duty of the learned Members of the Tribunal to direct Shri Kanfade to stand the cross-examination. If they did not adopt this common sense approach, they have failed in their duty to implement the provisions of Section 18 of the said Act 1987 in their true spirit. I am, therefore, not inclined to read the affidavit of Shri Kanfade in support of the respondent Nos.1’s case. 16. In addition to Shri Kanfade’s affidavit, the respondent No.1 placed on record certain documents which according to the learned Advocate appearing for the respondent No.1 did not require formal proof. I am inclined to accept this suggestion for the documents are sort of public documents. 17. Exh.D-2 is a certificate issued by the District Collector of Thane, showing as to how much rain fall the entire Thane District received on 25th, 26th and 27th of June, 1985. Exh.D-1 is the Railway Administration Certificate showing as 14 F.A.NOS.269 & 270/1992. to how many trains were canceled on 25th June, 1985 on account of heavy rains. 18. These two documents would certainly be on probability that on 25th, 26th and 27th of June, 1985, it might have rained heavily in Ghat Section between Igatpuri and Kalyan. It is also understood and can be appreciated that due to such heavy rains the traffic between Nasik to Mumbai got disturbed; so much so that the Railway Authorities were constrained to cancel number of trains in this section. But, it is not the case of the respondent No.1 that due to heavy rains no train traveled between Nasik to Mumbai on 25th and 26th of June, 1985. It appears that the Railway Traffic got slowed down. Number of trains were canceled and number of others were detained at various places. Even the train in question was admittedly detained in route. In such situation, it was necessary for the respondent No.1 to record evidence of the concerned Railway Officer who would have explained the details of predicaments and also as to what steps they took to tackle the difficulties. He could have further stated as to despite of heavy rains the Railway Administration had "used reasonable foresight and care in conducting the traffic and carriage of goods". 19. I have already quoted Section 93 of the said 15 F.A.NOS.269 & 270/1992. Act, above, which castes heavy burden on the Railway Administration to prove that they had one of the clauses as defence available in the event of any loss, destruction etc. of any consignment transported by railway. It further enjoins the Railway to prove that despite of having proved one of the defences mentioned in clauses (a) to (i) of S.93, they had used reasonable foresight and care in carriage of goods. In other words, the onus of proving these two aspects of the defence was primarily on the Railway Administration/Respondent No.1 and they have failed to discharge the same mainly because they failed to adduce adequate evidence. 20. I am therefore, not inclined to accept the argument of Shri Navander that in First Appeal No.269/1992, the respondent No.1 has viable defence of act of god. 21. Let me now turn to the other case. The attempt of the respondent to take up the defence based on clause (g) and (h) of Section 93 the Railways Act, 1989, in the other case is rather adventurous. As said above, the respondent No.1, did not adduce any oral evidence. Secondly, they did not rely on their own documents in support of this defence. Shri Navandar, mainly placed reliance on the "admissions" given by the appellant's witness Shri Sonawane. Before I turn 16 F.A.NOS.269 & 270/1992. to the details of the evidence of Shri Sonawane, I must mention that Shri Navandar tried to contend that the milk which was loaded at Jalgaon in the tankers in both the cases was of defective quality and so it's curdling and destruction was a natural deterioration. 22. Let me now deal with the details. Shri Sonawane mentioned in his deposition that in both the cases when the milk was loaded in tankers, the samples of the same were taken and tested for quality. He stated that the tests showed that the milk contained 0.13 acidity and it had 6.5 Degree Centigrade temperature. He said that this report is available on record. He then said that when the milk reached at destination at Mumbai, the Officers of GBMS took it's sample and checked it's temperature and acidity. He admitted in the cross- examination that the temperature of the milk recorded at Bhaikhala Station was 13.00 Degree Centigrade. Even other witness Balkrishna Kanade, who worked as a Chemist of GBMS admitted in cross- examination that the temperature of the milk at the time of taking of delivery at Bhyculla Station was 12.00 Degree Centigrade. He added further that the percentage of acidity in good milk is 0.12 to 0.13 but he said it gets curdled if the percentage goes above 0.16. He said, the milk in question showed acidity of 0.51 when it reached its destination, which was way above the 17 F.A.NOS.269 & 270/1992. acceptable level. During the cross-examination of these two witnesses, it has come on record that if the milk's temperature is maintained below 08.00 Degree Centigrade, it does not get spoiled for about 60 hours. The witnesses also admitted that if milk is loaded at a temperature of 5.5 to 6.5 Degree Centigrade in a tanker it's temperature does not increase by more than 1 Degree Centigrade per 12 to 15 hours. Shri Navandar, on the basis of this information collected from the witnesses argued that assuming the milk in question was loaded in the takers at about mid day on the date of loading and it remained in insulated tanker for about 60 hours it's temperature would not go 8 Degree Centigrade. He said, if in reality, it reached up to 13 Degree Centigrade, then the milk was of low quality. This argument is purely a guess work. There is nothing on record in the form of an experts opinion that the milk sample having inherent defect would in similar conditions get heated up more quickly than the milk of good quality. 23. Shri Navandar also tried to take advantage of following circumstance. The respondent No.1 in the written statement stated that in both the cases other milk supplier, a milk society of Dhule District had also loaded it's milk in similar insulated tankers on those days in the same trains. The delivery of milk in those tankers also 18 F.A.NOS.269 & 270/1992. got delayed. The GBMS Authorities in both the cases received the milk of the society of Dhule and made no complaint about it. The respondent No. 2, the State of Maharashtra also asserted this fact in their written statement. But, unfortunately both the respondents led no evidence to prove this assertion made in the written statement. So this aspect is not useful for the respondent No.1. 24. The question still remains as to how within 60 hours the temperature of the milk in question rose to 12 to 13 Degree Centigrade although the milk was kept in the insulated tanker. It has come on record that this tanker has structure like vacuum flask. It has also come on record during the deposition of Shri Sonawane that there is certain mechanism in the tanker to maintain temperature of the contents. In both these cases, the temperature of the milk rose by about 6 degree in 60 hours. On an average, it rose by 1 degree in every 10 hours. Shri Sonawane, stated that in ideal condition the temperature of the milk would rise by 1 degree in 12 to 15 hours. Going by that standard in the present cases the speed of rising of the temperature was rather fast. But, none of the parties threw light on the question as to why the speed of the rising of the temperature was high. Whether it was due to defective maintenance of the insulated tankers? This question has not 19 F.A.NOS.269 & 270/1992. been asked by any one, but there is fleeting reference in the cross-examination of Shri Sonawane about it. He stated that it was the respondent No.1 Railway Authority, who maintained the tankers in question. It was, therefore, necessary for the respondent No.1 to positively prove that the tankers in question were properly maintained by them, the milk in question at the time of loading had higher temperature than 6.5 degree centigrade or it was of defective quality and so it's temperature rose faster than good quality milk. In absence of such proof, the respondent No.1 has failed in proving this point. 25. The answer to the 4th point is resoundingly negative. As mentioned above, the respondent No.1 did not take pains to record evidence of their own witnesses. The perfunctory affidavit of the Assistant Chief Law Officer, Central Railway, who is admittedly not an Officer, who looked after the "operations", could not have proved the factual aspect of the defence raised by the respondent No.1. I think the respondent No.1 should have recorded evidence of their one of the Officers, who was responsible for operating the traffic on the relevant dates. He could have then explained as to what difficulties the administration had experienced on that day and in what manner and by taking what kind of steps, the administration took care in carriage of goods. 20 F.A.NOS.269 & 270/1992. Since the respondent No.1 failed to discharge it's burden, the claims of the appellants should succeed. The appeals are allowed. The impugned Judgments and Awards are set aside. The claims of the appellants shall stand allowed. (A.V.NIRGUDE,J.)