I.A.ANSARI, J. - (1.) This is an appeal preferred under Section 23 of the Railway Claims Tribunal Act, 1987, against the judgment and order, dated 31/7/1998, passed, in Application No. 329/96, by learned Railway Claims Tribunal, Guwahati Bench, Guwahati, dismissing the claim application of the appellant.
(2.) The case of the appellant may, in brief, be stated thus: One Shri Kushal Bose booked, on 2/12/1994, at Tinsukia railway station, four boxes of tea seeds weighing 80 kgs for being delivered to the appellant at Siliguri Junction. The appellant made repeated enquiries from the concerned parcel clerk, at Siliguri, about the said consignment, the last such enquiry having been made on 31/12/1994, but even on this day, i.e., on 31/12/1994, the petitioner was informed that his consignment had not reached Siliguri Junction. As the items booked were perishable in nature, the claimant issued a notice, dated 17/3/1995, under Section 78B of the Indian Railways Act, read with Section 80, CPC, claiming an amount of Rs.25,473.00 as compensation for the loss incurred by him. The consignment, however, reached Siliguri Junction on 17.4.95 and, on being informed, on 21.8.95, on the basis of the letter, dated 26.7.95, issued by the General Manager, NF Railways, Maligaon, Guwahati, about the arrival of the said consignment, the appellant refused to take delivery of his said consignment on the ground that the same stood damaged and conveyed his refusal vide his letter, dated 9.12.95. The petitioner, then, instituted a claim case, on 27.5.96, seeking payment of the said sum of Rs.25,473.00 as damages on the ground that due to act of negligence on the part of the respondents, the petitioner had suffered loss to the tune of the amount claimed. The appellant's claim case was registered as Application No. 329/96 aforementioned.
(3.) Resisting the above claim, the respondent filed its written objection, wherein it was contended, inter alia, that there was no cause of action for instituting the claim., the case of the respondent being, briefly stated, thus: The respondent served a notice on the appellant requesting him to take delivery of the goods from the destination, but the appellant did not turn up to take delivery of the goods. As a result thereof, the consignment is still lying undelivered at Siliguri Junction. The claimant is, thus, liable to pay for wharfage charge incurred for the consignment lying undelivered. The tea seeds were not perishable goods, and consignment was booked at owner's risk and the respondent is not responsible for any loss, destruction, damage and deterioration of undelivered goods, because there was no negligence or misconduct on the part of the respondent as a carrier.;