Madhya Pradesh Vidhyut Mandal vs Union of India

D.M. Dharmadhikari, J.

This appeal has been preferred u/s 23 of the Railway Claims Tribunal Act, 1987 against the order dated 6.9.1995 of the Railway Claims Tribunal, Bhopal whereby the claim preferred by the Appellant- Madhya Pradesh Electricity Board (for short ''the Board'' has been partly rejected towards damages sustained by them due to the alleged negligence of the staff of the Railway.

The facts not in dispute are that an electric transformer was consigned to the railway for carriage to Datiya on 8.2.1986.

At Datia Station, when the transformer was being unloaded with the help of crane supplied by the Railway, the iron rope fitted to the crane for lifting the transformer brckedown. As a result the transformer fell on the railway track and was damaged. The damaged transformer was jointly inspected by the representatives of the Railway as the carrier, the Board as the consignor and owner of the goods, and BHEL which had supplied the transformer. In the joint inspection made on 19.3.86, according to the Board on external examination of the transformer, the damage was provisionally assessed at Rs. 6000/- for which a claim Ex.D/6 dated 24.6.86 was lodged with the railways by a notice u/s 77/78-B of the Railways Act, 1890.

The transformer was then transported and sent to BHEL (manufacturer) at Bhopal which after opening the transformer found interior damages and for repairs charged a total sum of Rs. 1,94,920/-. Thereafter, the Board revised its claim for damages from Rs. 6000/- to Rs. 1.85/- lacs. Since the railways did not satisfy the claim towards damages the Board filed a civil suit in the court of District Judge, Datia. During pendency of the civil suit Railway Claims Tribunal was constituted under Railway Claims Tribunal Act and u/s 24 of the said Act the civil suit stood transferred to the tribunal for trial and decision.

The Railway contested the claim by filing a written statement in which a plea is taken that the consignment having not been unloaded within 7 days of the termination of the transit the railway is not responsible for any damage caused in unloading made by the consignor. Reliance is placed on Section 77 (1) of the Railways Act, 1890 (hereinafter referred as the ''Old Act''),

The tribunal rejected the plea raised by the railway and held that since no evidence has been led by the railway to prove that the wagon containing the consignment reached destination on 20.2.86 and the consignment was not unloaded within seven days of the termination of transit, the railway administration was liable. The tribunal held that the consignment was damaged due to the negligence and misconduct of the railway. So far as the quantum of damage is concerned, the tribunal only awarded a sum of Rs. 6000/- on the basis of the report of the joint inspection team and rejected the remaining claim of the Board towards the repair charges paid to the BHEL and transportation charges for sending the transformer from the destination to Bhopal and back to its proposed destination. The additional claim set up by the Board was rejected on the ground that it was not duly proved.

Shri M.L. Jaiswal, learned Counsel appearing for the Board in this appeal submits that the claim towards damages laid by the Board was based on documents which were never questioned by the railway and there was absolutely no justification for the tribunal to reject their additional claim on the alleged ground of want of proof.

Shri S.P. Sinha, learned Counsel appearing for the railways in this appeal baised several legal & factual pleas which will be dealt in seriatim.

The first ground urged on behalf of the Respondent-Railways is that the unloading was done by the Board at its own risk with the help of crane hired by them from the railways. The iron rope used in the crane was not supplied by the railways but was supplied by the employee of the Board who was present at the railway station. The iron rope supplied by the Board gave way in the process of lifting the transformer from the wagon and it fell down. The damage to the transformer cannot be said to be negligence of the staff of the railways.

So far as the want of due care and negligence on the part of Railways, is concerned, we may mention at the outset that the plea of supply of iron rope used in the crane by the employee of the Board, was not raised in the written statement and was taken for the first time in the course of evidence by filing an affidavit of one Ved Prakash Tiwari who claims to have been present as guard on the date of unloading of the wagon on 28.2.86. Since the above plea of supply of weak iron rope by the staff of the Board was not taken at the earliest opportunity in any of the correspondence or joint inspection note prepared by the inspection team, it appears to be clearly an after-thought and has to be rejected.

There is also great substance in the submission made on behalf of the Board that the tribunal has reached a finding of negligence on the part of the railway staff and has awarded damages to the extent of Rs. 6000/-. The finding of negligence against the Railways and the award of damage of Rs. 6000/- have not been challenged by the railway by way of an independent appeal or cross objection in this appeal preferred at the instance of the Board. Provisions of Order 41 Rule 22 Code of CPC are not applicable to the proceedings before the tribunal and to the appeal arising from the order of the tribunal in view of the fact that only certain specified provisions of Code of CPC u/s 20 of the Procedural Rule are applicable. But even on general principles it is not open to the railway to question the findings of negligence against them, when no appeal or cross objection has been preferred by it.

The next ground urged on behalf of the railways is that as is evident from the claim (Ex.D/6) lodged by the Board itself u/s 77 of the Act and the damage certificate issued by the railways (Ex.D/7), the wagon with consignment had reached destination on 20.2.1986. The wagon with consignment was unloaded on 28.2.1986, that is after expiry of seven days period from the date of arrival of the wagon and, therefore, u/s 77 (2) of the old Act, the railway cannot be held liable.

This Court has already held above that the finding of negligence reached against the railway by the tribunal is based on evidence and is unassailable at the instance of the railway in this appeal, in the absence of any counter appeal or cross objection. The story of iron rope for the crane being supplied by the staff of the Board has been found to be unreliable and an after thought. It has, therefore, to be held that the staff of the railway while unloading the wagon, with the use of the crane acted negligently resulting in fall of the transformer and consequent damage to it.

In order to decide the legal question whether even in such eventuality of damage caused to the goods while unloading of the wagon, the railway is responsible or not it would be necessary to notice the provisions of Section 77 on which reliance has been placed on behalf of the Railway. Section 77 (1) makes the railway administration liable as a bailee for damage to the goods carried within a "period of seven days afterthe termination of transit" provided in case of goods carried at owner''s risk, the negligence or misconduct on the part of railway administration or its servant is proved. u/s 77 Sub-section 2 the railway administration is not responsible for damage after expiry of the period of seven days after termination of transit''. The provisions of Section 77 sub Section (1) and (2) read as under -

Section 77 Responsibility of a railway administration after termination of transit - (1) A railway administration shall be responsible as a bailee under Ss. 151, 152 and 161 of the Indian Contract Act, 1872 (9 of 1872), for the loss, destruction, damage, deterioration or non-delivery of goods carried by railway within a period of seven days after the termination of transit:

Provided that where the goods are carried at owner''s risk rate the railway administration shall not be responsible for such loss, destruction, damage, deterioration or non-delivery except on proof of negligence or misconduct on the part of the railway administration or of any of its servants''.

(2) The railway administration shall not be responsible in any case for the loss, destruction, damage, deterioration or non-delivery of goods carried by railway, arising after the expiry of the period of seven days after the termination of transit.

There is a serious dispute between the parties as to when did the wagon reach the destination -on 20.2.86 as claimed by the railways or on 28.2.86 as claimed by the Board. Accepting the case of the railways, based on Board''s own notice Ex.D/6 and the damage certificate Ex.D/7 that the wagon arrived on 20.2.86 the termination of transit would be deemed to be complete by computing the period of seven days from the date of expiry of the free time allowed'' for unloading the wagon. In this respect, it is necessary to take into consideration the provisions of sub Section 5 of Section 77 and Rules 128, 133 and 144 of the General Rules for Acceptance, Carriage and Delivery of Goods contained in the goods tariff No. 34 -Part I of the Railways Act which are contained in Appendix 5 of the book on Indian Railwas Act, Fourth Edition by P. Harirao at page 997. The relevant rules are at page 1006 to 1009. The meaning of termination of transit'' and how it is to be computed is prescribed in Sub Section 5 (a) and (b) of Section 77 which read as under -

(5) For the purpose of this Chapter -

(a) Unless otherwise previously determined, transit terminates on the expiry of the free time allowed (after the arrival of animals or goods at destination) for their unloading from railway wagons without payment of demurrage, and where such unloading has been completed within the free time so allowed, transit terminates on the expiry of the free time allowed for the removal of the animals or goods from railway premises without payment of wharfage;

(b) "demurrage" and "wharfage" have the meanings respectively assigned to them in Clause (d) and Clause (h) of Section 46-C.

The relevant Rules are quoted here under -

Conditions under which goods are loaded and unloaded by the Railway -(1) All goods other than those provided for in the exceptions named in Clause (2) below and such other goods as may, from time to time, be notified, are loaded and unloaded by the Railway.

(2) Exceptions - Loading and unloading of goods by consignors and consignees, respectively, are required to be done in the following cases-

(a) Goods consigned loose or in bulk.

(b) Offensive goods.

(c) Goods chargeable -

(i) at rates on the basis of wagon-load classifications provided in Chapter VIII.

(ii) at station-to-station rates to which ''L'' condition is attached.

(d) Motor vehicles, N.O.C. Aeroplanes, Boats, N.O.C. etc., where a minimum weight for charge per article has been fixed in Chapter VIII at 10 quintals and over.

(e) Heavy machinery, long timber or other heavy articles, weighing one tonne and over per piece, unless otherwise provided.

(f) Goods traffic booked to and from siding, the loading and unloading of which is performed by owners by special arrangement or agreement.

Responsibility of owners in loading and unloading -In ail cases where the owners of goods are required to do the loading and unloading as the case may be, the risks attending these operations shall be borne by the owners.

(Underlining by the Court)

From the above quoted sub Clause (a) of Sub Section 5, it is to be noticed that transit terminates on the expiry of the free time allowed (after the arrival of goods at the destination) for their unloading from railway wagons without payment of demurrage. As mentioned in Sub Clause (b) of Sub Section 5 of Section 77, the word ''demurrage'' is defined in Section 46-C (d) which read as under:

demurrage means the charge levied after the expiry of the free time allowed for loading or unloading a wagon.

Accepting the case of the Railway that the wagon arrived on 20.2.1986, it has neither pleaded nor proved as to what was the ''free time allowed'' for unloading and whether for failure to unload within the free time allowed, any demurrage was charged from the consignor. In the absence of plea and proof of free time allowed and liability towards any demurrage, the plea of railway administration cannot be accepted that on arrival of the wagon, after giving allowance for the free time for unloading, the transit had terminated on the date of unloading within the meaning of Sub-section (1) and Sub-section (2) of Section 77. On a similar omission in not raising a plea on ''termination of transit'' and failure of the railway to prove the free time allowed for unloading, the stand of the railway was negatived in case of Punjab National Bank Vs. Beniprasad Maheshwari and Others, . See the following observation of the Division Bench in the case (Supra):

Section 77 of the Act deals with the responsibility of a railway administration after termination of transit. The period of time after the terimination is divided into two distinct periods of time (1) within 7 days and (2) after seven days of the termination of transit. Sub-section (1) of Section 77 of the Act lays down that for loss, etc. of the goods within 7 days the liability of the railway would be that of a bailee; but for goods carried at owner''s risk rate it shall be liable only on proof of negligence or misconduct. Sub-section (2) of Section 77 of the Act lays down that the railway administration shall not be liable for loss etc. after the expiry of 7 days after termination of transit. Thus, this Section 77 which is also in Chapter VII alters or varies the absolute liability of the railway u/s 73 of the Act. In this view of the matter, if the railway, Defendant No. 3 wanted to take advantage of Section 77 of the Act, it was obligatory on it to have pleaded as to what was the free period allowed when the goods had actually reached and were actually delivered.

In the instant case assuming that the wagon arrived with the consignment on 20.2.86 there was some free time allowed for unloading. The wagon was unloaded on 28.2.86 within 8 days. In the absence of plea and proof of extent of free time allowed and liability of demurrage, it cannot be held that the period of 7 days had expired after the ''termination of transit'' which is to be computed in accordance with sub Clause (a) of Sub Section 5 of Section 77 of the Old Act.

As is sought to be contended on behalf of the railway, applicability of Sub-section 5 (a) & (b) Cannot be restricted to the cases where charge is levied for "demurrage" or "Wharfage". Sub-Section 5 opens out with the expression "for the purposes of this Chapter" meaning thereby Chapter VII with all sections under it including Section 77 with all its Sub-sections. The expression "termination of transit" has to be construed for determining its period in accordance with Sub-section 5 of Section 77, regardless of the fact whether demurrage is actually charged or not.

It is necessary also to consider another argument advanced on behalf of the railway to deny its liability. It is contended that after arrival of the wagon, the unloading was to be done at the risk of the owner and any damage caused in the course there was not the responsibility of the railway. It is also pointed out that the crane was hired by the Board for which it had paid the hire charges.

It has not been expressly pleaded and proved by the Railway before the tribunal below that unloading was solely the responsibility of the consignor. Rule 128 containing General Rules in Goods Tariff No. 34 Part-I places the responsibility of unloading on the railway.

The ''Exceptions'' in Sub-rule 2 (e) of Rule 128 (quoted above) amongst other articles mentions ''heavy machinery''. The exception Clause 2 (e) is under Rule 128 with Heading. "Exceptions - Loading and unloading of goods by consignors and consignees, respectively are required to be done in the following cases."

The burden to prove that in the instant case, the loading and unloading was the responsibility of the consignor and the consignee because the consignment was of the description mentioned in one of the exceptions i.e. Clause (e) in Sub-rule 2 of Rule 128, was on the Railways. The Railway failed to plead or prove that the transformer booked for carriage through the Railways was a heavy machinery of the weight as described in exception (e) of Sub Rule 2 of Rule 128 and, therefore, it had no responsibility of unloading. In the absence of such a plea and proof, in accordance with main sub Rule 1 of Rule 128, the responsibility of unloading in this case has to be held to be of the Railway -may be that the Board was charged for the use of the railway crane. It is not the case of the Railways that the railway staff was not employed in unloading. If the unloading was the responsibility of the railway under Sub Rule 1 of Rule 128 and due to the negligence of its staff in using the weak iron rope in the crane, the transformer fell down on the track, the railway administration cannot avoid its liability towards damage as a ''carrier'' under Sub. sec 1 of Section 77 of the old Act.

The next'' submission made on behalf of the Railway is that the suit instituted in the Civil Court was bad for non-service of notice u/s 80 of the Code of CPC and, therefore, the tribunal ought to have rejected the whole claim which stood transferred to it for trial from the civil court. It is contended that as the suit in the civil court could not have been instituted without service of a notice u/s 80 of C.P.C, it was not a validly instituted suit and the tribunal ought to have rejected it on that ground alone.

This legal ground does not appear to have been raised at any stage of the proceedings before the tribunal. We find on record that a notice u/s 77 read with Section 78-B of the Railways Act was served on railway before institution of the suit, which substantially complies with the requirement of Section 80 of C.P.C.

In our considered opinion, the pending claim in the civil court which has been trasferred to the tribunal for adjudication cannot be dismissed on the sole ground of non-service of notice u/s 80 of the Code of Civil Procedure. The provisions contained in Section 24 of the Railways Claims Tribunal Act in the above respect need to be noted

Section 24 Transfer of pending cases -(1) Every suit, claim or other legal proceeding (other than an appeal) pending before any Court, Claims Commissioner other authority immediately before the appointed day, being a suit, claim or proceeding the cause of action whereon it is based is such that it would have been, if it had arisen afterthe appointed day, within the jurisdiction of the Claims Tribunal, shall stand transferred on that day to the Claims Tribunal.

(2) Where any suit, claim or other legal proceeding stands transferred from any Court, Claims Commissioner or other authority to the Claims Tribunal under Sub-section (1) -

(a) the Court, Claims Commissioner or other authority shall, as soon as may be after such transfer, froward the records of such suit, claim or other legal proceeding to the Claims Tribunal;

(b) the Claims Tribunal may, on receipt of such records, proceed to deal with such suit. Claim or other legal proceeding, so far as may be, in the same manner as an application from the stage which was reached before such transfer or from any earlier stage or de novo as the Claims Tribunal may deem fit.

Admittedly, this was a claim on a cause of action which ''if it had arisen after the appointed date would have fallen within the jurisdiction of the Claims Tribunal''. We find no substance in the argument advanced on behalf of the railway that since the damage was caused to the transformer in the course of its unloading after expiry of seven days of the termination of transit, the suit was not for a claim under Chapter VII but was based only on Tort. We have already held above that the goods were damaged in the course of unloading and there is no proof that the unloading was done after seven days of termination of transit with due allowance to the free time prescribed for unloading. It was, therefore, a claim falling in Chapter VII of the Act for damage done within 7 days after the termination of transit and, therefore, Claims Tribunal had jurisdiction in the case. Sub-clause (b) of Sub-Section 2 of Section 24 empowers the Claims Tribunal to deal with the proceedings transferred "in the same manner as an application from the stage which was reached before such transfer or from any earlier stage or de novo as the Claims Tribunal may deem fit".

The effect of sub Clause (b) of Sub-Section 2 of Section 24 is that the legal proceedings transferred to the tribunal have to be dealt with in the same manner as an application before the tribunal under the Act and the (Railway Claims Tribunal Procedure) Rules, 1989. If the proceedings of suit in the civil court are to be dealt with and tried ''as an application under the provisions of the Tribunal Act and the rules'', the provisions of Section 80 of Code of CPC cannot be pressed into service by the opposite party to seek rejection of the claim. Under Rule 20 of the Procedural Rules'' framed under Railway Claims Tribunal Act, only certain specified provisions of Code of CPC are made applicable to the Tribunal which does not inlcude Section 80 C.P.C.

The contention advanced on behalf of the railways, therefore, is rejected that the Claims Tribunal had no jurisdiction in the matter of the claim for damage caused in the course of unloading of the consignment and that the claim suffered from the alleged defect of non-service of notice u/s 80 of C.P.C.

Lastly, we come to the question of quantum of damages. The Claims Tribunal has allowed the claim only to the extent of Rs. 6000/- as assessed in joint inspection by the Inspection Team. The additional claim towards repairs and transportation to Bhopal, BHEL and back, has been rejected solely on the ground, as observed by it that: "the persons who have received the payment of repairs or transportation charges have not been produced". In rejecting the major portion of the claim set-up by the Board, the tribunal lost-sight of the legal position as provided in Section 18 (1) of the Railway Claims Tribunal Act, that the tribunal is not bound by the procedure laid down by Code of CPC and it is to be guided by the principles of natural justice. It has, subject to the provisions of the Act and the Rules, all powers to regulate its own procedure. Under the procedure, Rules framed under the Act, Rule 14 allows the parties to tender affidavit evidence and it is only when the tribunal considers it necessary, it may order cross examination of any deponent.

The Board in accordance with the procedure prescribed before the tribunal had filed document Ex.P/19 showing payment of Rs. 1,94,920/- to the BHEL Bhopal for repairs of the transformer plus other expenses. It has also filed an affidavit of its Executive Engineer (Stores) Gwalior, Shri Purushottam Das Agarwal to prove payment of repair charges. The break-up of claims mentioned in the affidavit are as under:

Cost of repairs by BHEL

1,94,920.00

Transport

30,000.00

Incidental charges

22,492.00

2,47,412.00

Plus interest at the rate of 12% P. A. till the date of filing of the suit.

41,125.00

2,88,537.00

The Railway did not contest the quantum of claim pressed on behalf of the Board and led no evidence in rebuttal by counter affidavit nor sought any opportunity to cross examine the deponent, who was Executive Engineer (stores) of the Board. The total claim worked out to Rs. 2,88,537/-. It appears that there was some calculation mistake in showing a total of Rs. 2,84,537/-which was the claim lodged in the civil Court with payment of Court fees on it.

In our considered opinion, the payment of repair charges for the transformer paid to BHEL were duly proved by producing the actual receipt and the affidavit of the officer of the Board. The incidental charges incurred for transportation have been given in document Ex.P/21 which is a letter with details of expenses sent by its Gwalior Office to the Board. The railway has not questioned the fact that the damaged transformer was transported in a trailer of the Board from Jabalpur to Datia and from Datia to BHEL Bhopal. After repairs it was again transported in the trailer requistioned from Jabalpur Head Office to Jhansi and from there upto Sewda sub-station. The above quantum had remained unchallenged before the tribunal. There was no justification for the tribunal to have rejected the said claim. The transportation was done in the trailer of the Board with the staff engaged by the Board and, therefore, no document or voucher could have been produced by the Board. There was no insistence on its production by the opposite party. Provisions of Evidence Act cannot be strictly applied to a claim laid before the tribunal which has to decide the case guided by principles of natural justice.

Sofar as the incidental charges in the sum of Rs. 22,492 are concerned, there is a bare affidavit of Executive Engineer (Stores) Shri P.D. Agarwal who had no personal knowledge. There is no other documentary evidence to substantiate the same. In our opinion, therefore, the Board can legitimately claim only a sum of Rs. 1,94,920/- towards repair charges and rupees 30,000/-towards transportation. The claim of rupees 22,492/-towards incidental charges cannot be allowed for want of evidence. On the above claim, the Board will be entitled to 12% interest per annum from the date of claim until payment.

Consequently, we allow this appeal to the extent of Rs. 1,94,920/- for repairs + 30,000/- towards transport, total Rs. 2,24,920/- with 12% p.a. interest pendentelite and future until payment.

The Board shall also be entitled to the costs of this appeal. Counsel fee as per certificate, if pre-certified.