- (1.) This misc. appeal has been filed by the appellant-Railways under Section 21 of the Railways Claims Tribunal Act, 1987, aggrieved by the judgment and award dated 13.12.1996 of learned Railway Claims Tribunal, Jaipur, in Case No. TA-I/3/1995-M/s. Chunnilal Hari Dass Rathi v. Union of India & Ors. Upon a reference to the Third member under Section 21 of the Railway Claims Tribunal Act, 1987, the learned Tribunal allowed the claim of Rs. 65,007.80/- for the damage caused to the goods of the claimant i.e. sugar in two racks to be paid along with interest @ 12% per annum, which was sought to be transported in two railways wagons from Sabarmati to Marwar Pokaran within a normal transit period of ten days. The Railways, however, diverted the said route allegedly on account of congestion of the traffic at Palanpur and sent the said goods train through Bhildi-Bamsin route, which on account of flooding at Bamsin railway station, the goods train was detained for 22-23 days and on account of heavy rains, the goods got damaged and for such damage, the claim was filed by the claimant to tune of Rs. 70,000/-, which was ultimately decreed to the extent of Rs. 65,007.80. The reasons assigned by the learned Tribunal while allowing the said claim, are quoted herein below for ready reference:-- "11. The spinal question to best first decided is whether the railway administration could deviate the route from the original one which was agreed to between the parties and incorporated in the RRs Section 76-A of the Indian Railways Act, 1890 lays down that where due to a cause beyond the control of railway administration or due to congestion in the yard or other operational reasons, animals or goods delivered to the railway administration to be carried by railway are carried over a route, other than the route, by which they are booked or the usual or customary route, the railway administration shall not be deemed to have committed a breach of contract of carriage by reason only of the deviation of route. This provision unambiguously shows that the railway administration could divert the route of a goods train if the same is required due to cause beyond the control of the railway administration or due to the congestion in the yard or due to any operational reasons. One of the three conditions, therefore, is required to be fulfilled before the route can be diverted by the railway administration: i) that such a cause is beyond the control of the railway administration; ii) due to congestion in the yard; and iii) on account of other operational reasons." If anyone of the conditions is fulfilled for the deviation in question, the railway administration shall be precluded from the charge of committing a breach of contract for carriage by a different route. Admittedly, the deviation of the route took place at Palanpur railway station. No evidence, however, was produced by the railway administration from the Palanpur railway station or from the control room that the deviation of the route necessitated on account of one of reasons mentioned above. Even though it was pleaded in the written statement that the deviation was necessitated on account of congestion in the yard, but no evidence of such a congestion has been produced on the file to justify the deviation of the route. Ostensibly the evidence was very much available with the railway administration, either with the control room or at the Palanpur railway station, but the same was not brought fourth for the reasons best known to it. The only adverse presumption, that can be draw is that either there is no evidence regarding the deviation because of congestion in the yard or if there was any, the same, if produced, would have gone against the interest of the railway administration. I, therefore, hold that the railway administration committed the breach of contract of carriage by deviating the route without assigning any reasons. The next important question to be decided is that even if the route was deviated and the consignments in question were flooded at Bamsin railway station by the act of God, whether sufficient care was taken to divert the consignments from the station to some other safer place or any other railway station Admittedly, the engine attached with the train carrying the consignments in question was duly detached and taken away by the driver and the guard to some other place (not disclosed in the evidence) and the consignments were allowed to remain at Bamsin railway station. Under Section 73 (now Section 93) of the Railways Act, 1989, it is provided that a railway administration shall be responsible for the loss, destruction, damage, deterioration or non-delivery, in transit, of animals or goods delivered to the administration to be carried by railway, arising from any cause except the following: a) act of God, b) act of war, c) act of public enemies, d) arrest, restraint or seizure under legal process, e) orders or restrictions imposed by the Central Government or a State Government or by any officer or authority subordinate to the Central Government or a State Government authorized in this behalf, f) act or omission or negligence of the consignor or consignee, 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. However, a proviso has been added to the aforesaid exception that the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the administration further proves that it has used reasonable foresight and care in the carriage of the animals or goods. 12. Even if it is admitted that flood water surrounded the consignments at Bamsin railway station, it was still the responsibility of the railway administration to have protected the consignments in question with due care and caution. It has come in the evidence that the driver of the train, with which the consignments in question were being carried, did remove the engine from the spot, but left the consignments there to stand the fury of the floods. What efforts were taken to take care of the consignments, there is little or no evidence produced by the railway administration to justify the invocation of the proviso mentioned above. The Hon'ble Court Orissa High Court in case ofUnion of India representing Railways v. M/s. Endupudi Narsimham and Sons and another, 1964 AIR(Ori) 34 held that if the goods are taken across a different route and the loss is incurred by the consignor, the carrier (railways) is responsible when the contract is to relieve the railway from liability for loss, damage, misconveyance, mis delivery, delay or detention of or to such goods during transit, the exemption is only from liability during the transit and when once the goods are diverted from that route, the protection ends. The Hon'ble Allahabad High Court in case Firm Mahesh Glass Works v. Governor General in Council, 1950 AIR(All) 543 ruled that if a carrier deviates from the usual route and the goods are lost even by inevitable accident, he is liable; for under such circumstances the loss is traced back through all the intermediate causes to the first departure from duty. 13. The railways have not produced either the driver or the guard of the train to justify as to where the engine of the train was taken away. The Station Master of the Bamsin Railway Station, Shri Narain Lal Pareek has appeared as DW-2 and he disclosed that the goods train, with which the consignments in question were being carried, was stabled at Bamsin in order to give way to an express Jodhpur-Ahmedabad train. He showed ignorance as to where the engine after removal from the goods train was taken away. Throughout his entire statement, he did not state a single word as to what care and caution was taken to protect the consignments in question from the floods. In these circumstances, I am of the confirmed opinion that the railway administration has failed to justify if they can claim the protection or immunity provided under Section 93 ibid. The Hon'ble Supreme Court in case of Union of India v. The Steel Stock Holders Syndicate, Poona, 1976 AIR(SC) 879 has ruled that where the Railways Act provides for a particular mode or a form in which the contract has to be entered into, that does not mean that the provisions of the Contract Act stands superseded. In this case, the consignor and the railway administration entered into an agreement by issuing the RRs that the consignments in question were to be carried to Pokaran via Sabarmati-Marwar and that being so, the railways were not entitled to deviate the route convenient to them without complying with the provisions of Section 76A of the Indian Railways Act, 1890 (Now Section 69 of the Railways Act, 1989). 14. Furthermore, there is no evidence regarding the intensity of the flood which surrounded the railway station Bamsin. Only DW-2 was produced by the railway administration to tell about the flood and its fury, but no documentary evidence was produced of that time and date that the flood was so furious that no efforts could have been made to protect the consignments in question. The bare statement of DW-2 made after a long period of more than four years is of no consequence and the railway administration at least should have produced documentary proof regarding the nature of the flood as to when it came at the spot and when it receded and how much damage was caused to the consignments and the other wagons attached with the said goods train. In the absence of any direct cogent and documentary evidence, I hold that the railway administration is liable for the loss in question and it is not entitled to have the protection either of Section 73 or Section 76A of the Indian Railways Act, 1890. In all fairness, therefore, I conclude under Issue No. 5 that no reasonable arrangements were made to take care of the goods train and it was due to the carelessness and misconduct of the railway administration that the consignments in question were damaged. Under Issue No. 7, it is held that the railways wrongly repudiated the claim of the plaintiff. No evidence having been produced under Issues No. 4 and 10, the same are decided against the railways. Under Issue No. 11, the railways are liable to pay for the damages caused to the consignments due to its carelessness. Issues No. 5 and 7 are decided in favour of the applicant, whereas Issues No. 4, 10 and 11 are decided against the respondent-railways. So far as Issue No. 3 is concerned, the delay in carrying the consignments to destination happened due to wrong deviation of the route and no evidence having been produced regarding the change of route on the grounds mentioned under Section 76-A ibid, I hold that the abnormal delay caused in getting the consignments arrived at Pokaran was due to the carelessness of the railway administration. This issue is also decided in favour of the applicant and against the railway administration. Issue No. 8 15. Even though the plaintiff has claimed compensation of Rs. 70,000/-, but the claim of interest prior to the suit or an amount of Rs. 3690/- for realisation of bills etc. from Jodhpur and also for physical, mental harassment, is not admissible as barred under Section 102(d) of the Railways Act, 1989. However, the applicant's claim for Rs. 65007.80 as the price of the damaged consignments is duly proved and it is entitled to receive the same with interest @ 12% per annum from the date of filing this claim application with proportionate costs. This issue is decided in favour of the applicant and against the respondent-railway administration. Issue No. 13 (Relief) 16. In view of my findings on the issues, the claim application is partly allowed and the applicant is held to get a compensation of Rs. 65,007.80 from the respondent-railway administration with proportionate costs and interest @ 12% per annum from the date of filing this claim application till the realization of the decretal amount. Dated: 13.12.1996 Sd/- (J.K. GOEL) MEMBER (JUDICIAL) RCT/CDG AT JAIPUR"
(2.) Mr. Anil Mehta, learned counsel for the appellants-Railways submitted that under Section 76-A of the Indian Railways Act, 1890, Railways have power to divert the route in case of emergency and for the reasons beyond the control of the railway administration or due to congestion in the yard or on account other operational reasons. He submitted that in the present case on account of congestion near Palanpur, the route was diverted and the goods train in question was sent through a shorter route of Bhildi-Bamsin where unfortunately due to flood and heavy rains, the said goods train was detained for about 22-23 days and on account of moisture and rains the damage was caused to the goods by the act of God, and therefore, the claim could not be awarded in favour of claimant and the present appeal deserves to be allowed.
(3.) Learned counsel for the appellants also relied upon the statement of DW-2, namely, Narain Lal Pareek, Station Master of the Railway Station- Bamsin, who in his cross-examination has stated that there was no Goods Shed at the Bamsin railway station and a Parcel Godwn was there. He has further stated that for about 50-60 hours, there was flood situation at the said railway station and the said goods in question has to be detained for 22-23 days there. But he was not aware as to whether the said goods in question were booked through Sabarmati-Marwar Pokaran route was diverted through Bhildi-Bamsim route. Mr. Mehta, therefore, submitted that under the powers conferred under Section 76-A of the Act, if the route had to be diverted on account of traffic congestion, of course, for which no evidence, oral or documentary, was produced before the learned Tribunal, claimant cannot be awarded the compensation.;