- (1.) THIS Civil Miscellaneous Appeal has been filed challenging the order dated 28. 12. 1998 passed in O. A. No: I/1078 of 1990 on the file of the Railway Claims Tribunal, Chennai Bench. The facts of this appeal are that a consignment of 171 bundles were booked from Shilong Out Agencies to the Salt Cataurs under R. R. No: 697667 dated 20. 06. 1988. After a delay of 42 days, the said consignment has reached the destination point. When the goods were unloaded, it was found that 70 bundles are being received in a good condition and 86 bundles were damaged by water and 15 bundles were missing. The appellant has received the 70 bundles. With regard to the 86 bundles, which has been damaged by water and found to be unfit for any use, the appellant sought for open delivery for assessment of the damage. Hence, on 02. 08. 1988 after verification and finding that 70 bundles were in sound condition, the claimant took delivery of the 70 bundles. Since the other 86 bundles were completely damaged and unfit for any use, the appellant did not take delivery of the same and sought for assessment of damages. Since the respondent has not assessed the damage properly, the appellant refused to take delivery of the same. Subsequently, the respondent had conducted an auction with regard to these 86 bundles on 05. 12. 1988. In the auction for the 86 bundles, the respondent was able to fetch a sum of Rs. 4,748/ -. Since the appellant has suffered a loss to the tune of Rs. 1,12,817/-, with regard to the damaged bundles and loss of 15 bundles, he had filed a claim petition before the Railway Claims Tribunal, Chennai, claiming a sum of Rs. 1,12,817/ -.
(2.) THE claim petition was taken up on file in O. A. No: I/1078-90. Originally, the matter was heard by the Judicial Member as well as the Member (Technical) and an order has been passed on 01. 05. 1998 whereby the Judicial Member has given a judgment that the appellant is entitled for a sum of Rs. 1,08,272/- as compensation whereas the Member (Technical) has differed from the view of the Judicial Member on certain issues and gave a finding that the appellant is not entitled for any compensation since he has refused to take delivery of the 86 bundles. Hence the matter was referred to the Hon'ble Chairman of the Railway Claims Tribunal, Delhi, who appointed Member (Technical) of the Secunderabad Bench, as the third member for deciding the issue. The third member, after providing an opportunity for both the appellant as well as the respondent, passed an order on 14. 12. 1998 totally negativing relief to the appellant. Challenging the same, the above C. M. A. has been filed.
(3.) LEARNED counsel for the appellant has made the following submissions: 1]. As per the learned counsel normally when there is a difference of opinion between the Judicial Member and the Member (Technical), the matter would be referred to a Judicial Member and not a Member (Technical ). 2]. Because of the negligence in not following the safeguard methods by the respondent railway, 86 bundles were damaged due to which they cannot be put to any use at all. Besides, 15 bundles were missing. Since this is due to the carelessness and negligence on the part of the railway, it has to pay damages as claimed by the claimant. That apart, the learned counsel for the appellant has argued that auction has taken place under Sections 54 and 55 of the old Act wherein it was clearly stated that before conducting an auction, the appellant should have been provided with a notice. But whereas no notice has been issued as contemplated under Sections 54 and 55 of the Act and as such, the order passed by the Tribunal is totally erroneous and the same has to be interfered with. ;