Niwas Surender Kumar & Co vs Union Of India & Anr
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 10.04.2026
Pronounced on : 17.07.2026
Uploaded on : 18.07.2026
+ FAO 340/2010
NIWAS SURENDER KUMAR & CO .....Appellants
Through: Mr. Kartik Shankar, Ms. R. Priya,
and Ms. Kanchan, Advocates.
versus
UNION OF INDIA & ANR .....Respondents
Through: Mr. Rajesh Gogna, Advocate for
UOI with Ms. Hiba B.M., Ms.
Rebina Rai, and Ms. Punita,
Advocates.
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. The present appeal has been filed against the judgment dated
04.05.2010 passed by the Railway Claims Tribunal, Principal Bench, Delhi
(hereinafter the “Tribunal”) in OC No. 42/2006. Vide the impugned
judgment, the claim application filed by the appellant against the Railways
seeking compensation of Rs.22,18,906/- on account of short-delivery and
damage to its consignment was dismissed.
2. Briefly stated, the appellant company booked a consignment
comprising 832 bags of turmeric and black pepper, valued at approximately
Rs.24 Lakhs, for transportation from Erode to Delhi-Kishanganj under
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Railway Receipt No. C-083222 dated 21.10.2005. During transit, the train
carrying the appellant’s consignment met with an accident on 28.10.2005.
The train was brought to a halt at about 8:30 a.m. between AXR and BTTR
railway stations after its driver noticed fallen trees on the track and water
overflowing over it. Following heavy rainfall on 27/28.10.2005, irrigation
tanks situated in the vicinity of the railway track were filled to capacity and
eventually breached, causing a large volume of water to flow through
bridge nos. 444 and 445. Unable to withstand the impact, the railway track
was displaced by approximately 10 metres, resulting in the capsizing of a
few wagons, including Wagon No. WCR-BCNA-HS-12634 carrying the
appellant’s consignment. The concerned goods were thereafter transshipped
to Wagon No. NRBCN-90841 and ultimately reached Delhi-Kishanganj on
19.11.2005 in a short-delivered, damaged, and deteriorated condition. The
said damage and short-delivery were brought to the notice of the Railway
Authorities before the goods were removed from the railway premises.
Thereafter, senior officials of the Railway Administration were deputed to
assess the loss on 23.11.2005. Upon such assessment, it was recorded that,
out of the 832 bags originally booked, only 410 bags were delivered in a
damaged condition, while the remaining 422 bags were completely short-
delivered. Consequently, an Assessment Report as well as a Shortage
Certificate came to be issued by the Railways. A summary of the
information contained in the same is produced hereunder: -
Details of the Goods
Details of the Goods
Delivered in Damaged
Details of the Goods
Dispatched
Short-Delivered
Condition
143 Bags of Turmeric (90 31 Bags of Turmeric (90 72 Bags of Turmeric (90
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Kgs each) Kgs each) – 78% Loss
Kgs each)
30 Bags of Turmeric (90
Kgs each) – 70% Loss
10 Bags of Turmeric (90
Kgs each) – 60% Loss
160 Bags of Turmeric (80
44 Bags of Turmeric (80
80 Bags of Turmeric (80
Kgs each)
Kgs each) – 90% Loss
Kgs each)
20 Bags of Turmeric (80
Kgs each) – 78% Loss
12 Bags of Turmeric (80
Kgs each) – 70% Loss
4 Bags of Turmeric (80
Kgs each) – 60% Loss
390 Bags of Turmeric (50
148 Bags of Turmeric (50
131 Bags of Turmeric (50
Kgs each)
Kgs each) – 78% Loss
Kgs each)
81 Bags of Turmeric (50
Kgs each) – 70% Loss
30 Bags of Turmeric (50
Kgs each) – 60% Loss
102 Bags of Black Pepper
Nil 102 Bags of Black Pepper
(70 Kgs each)
(70 Kgs each)
37 Bags of Black Pepper
Nil 37 Bags of Black Pepper
(75 Kgs each)
(75 Kgs each)
Total: 832 Bags Total: 410 Bags Total: 422 Bags
3. The appellant served an amended notice under Section 106 of the
Railways Act, 1989 (hereinafter the “Act”) upon the respondents on
25.11.2005, quantifying its claim at Rs.22,18,906/- by taking the value of
turmeric at Rs.38 per Kg and that of black pepper at Rs.75 per Kg. It was
specifically alleged therein that the bags had been badly affected by water,
the contents thereof had become discoloured and had consequently
devalued in quality and market value, and that the same had occurred due to
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the negligence of the Railways in failing to exercise reasonable care and
foresight in the carriage of the goods entrusted to it. The appellant claimed
that the consignment had been tendered for carriage in a perfectly sound
condition and booked at “Railway Risk”. The respondents, however,
repudiated the appellant’s claim. Aggrieved thereby, the appellant instituted
the underlying claim petition before the Tribunal seeking compensation of
Rs.22,18,906/- alongwith costs and interest @ 18% per annum from the
date of the notice till its realisation.
4. The respondents contested the claim by filing a written statement.
They summarily raised objections regarding the consignment having been
booked on a “said to contain” basis, the prescribed packing requirements
not having been complied with, and the wagon having been selected by the
consignor, with the consignment having been loaded directly from the truck
into the wagon without the supervision of the Railways’ staff, and
consequently claimed the protection of Sections 93(f), 98, and 65 of the
Act. The principal defence, however, was that the loss had occurred on
account of an “act of God” within the meaning of Section 93(a) of the Act.
It was pleaded that, owing to heavy rains, three irrigation tanks situated in
the vicinity of the railway track had breached, causing a heavy flow of
water which displaced the railway track and resulted in the capsizing of the
wagon carrying the appellant’s consignment. Accordingly, it was contended
that no liability could be fastened upon the Railways.
5. In the impugned judgment, the Tribunal noted that heavy rains and
subsequent floods resulting in the overflowing of tracks are not unusual
occurrences in this country, and that the Railways, as an organisation over
150 years old, is expected to possess the requisite expertise to handle such
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eventualities. It further noted that the flooding of the track was not directly
attributable to the incessant rains, but to the breach of three irrigation tanks
situated in the vicinity of the railway track. However, the Tribunal absolved
the Railways of all liability on the ground that the responsibility for the
upkeep and maintenance of the said tanks vested with the Irrigation
Department of the Andhra Pradesh Government, which had failed to
provide an advance warning to the concerned Railway Authorities regarding
the possibility of the said tanks getting breached due to heavy rains.
Consequently, the Tribunal dismissed the claim application, while granting
the appellant liberty to approach the competent Civil Court to seek redressal
against the Irrigation Department concerned.
6. Learned counsel for the appellant contends that as the Tribunal had
itself found that the accident was not directly attributable to incessant rains
but connected to a breach of the irrigation tanks in the vicinity of the
railway track, the respondents could not be absolved of liability under
Section 93(a) of the Act. He submits that the respondents failed to establish
that the accident was occasioned by an “act of God” or that the loss
occurred despite the exercise of reasonable foresight and care. It is argued
that the Railways’ own enquiry report discloses that the area concerned had
been receiving continuous rainfall for nearly 2 days prior to the accident,
yet no material has been placed on record to demonstrate that any
inspection of the vulnerable stretch, including the nearby irrigation tanks,
was undertaken before permitting the train to pass through the said portion.
Learned counsel further submits that the respondents also failed to produce
any material showing that they maintained appropriate coordination with
the Irrigation Department regarding the condition of the tanks situated in the
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vicinity of the railway track, despite being fully aware of their existence and
their potential impact upon the safety of railway operations during
prolonged rainfall. It is further submitted that the respondents also failed to
explain the precautions taken to preserve and protect the appellant’s
consignment after the accident in question.
7. Per contra , learned counsel appearing for the respondents supports
the impugned judgment and submits that the loss of goods during transit
occurred entirely on account of incessant rains and flash floods due to the
breach of the concerned water tanks, which constitute an “act of God” under
Section 93(a) of the Act. Learned counsel further submits that no
negligence is attributable to the Railways, as the responsibility for the
upkeep and maintenance of the tanks vested entirely with the Irrigation
Department of the Andhra Pradesh Government, which failed to provide
any advance warning.
8. I have heard the learned counsel for the parties and perused the
material placed on record. The controversy in the present appeal primarily
revolves around the scope of the statutory defence available to the Railways
under Section 93(a) of the Act.
9. As noted above, the Tribunal has recorded a specific finding that the
flooding of the railway track was not directly attributable to the rainfall
alone but was connected to the breach of three irrigation tanks situated in
the vicinity of the railway track. Having returned such a finding, the
Tribunal proceeded to dismiss the subject claim application on the sole
ground that the responsibility to maintain the said tanks vested with the
Irrigation Department of the Andhra Pradesh Government; granting the
appellant liberty to pursue a separate civil remedy against the said
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department. The question that fell for consideration before the Tribunal was
not whether the Irrigation Department could also be held to be liable in
separate proceedings, but whether the Railway Administration had
succeeded in establishing the defence available to it under Section 93 of the
Act.
10. The Tribunal has absolved Railways of any liability by wrongly
applying Section 93 of the Act as though a statutory immunity is granted to
the Railways against claims pertaining to loss or destruction of goods under
the said provision. Rather, quite to the contrary, according to this Court, the
way Section 93 is couched, it begins with an obligation that Railways, as a
carrier, is under an obligation to compensate for any destruction of goods
subject to very limited exceptions carved out. The proviso further narrows
down the play of exceptions by qualifying the same by rule of “reasonable
foresight” and duty of “care”. The proviso puts it beyond any shadow of
doubt that exception might be available to the Railways however, subject to
demonstrable discharge of duty of care and reasonable foresight, in the first
place, ensuring that all risks reasonably foreseeable have been removed.
This construct of Section 93, in a sense, fastens statutory strict liability on
Railways with obvious exceptions pertaining to events that are not
foreseeable.
11. The test of reasonable foreseeability has to be seen from the
perspective of an expert in the trade, who is expected to anticipate the risks
attached, beyond the abilities of a layman. Railways, with its long and deep
experience in operating a vast network under diverse geological and climate
conditions is expected to foresee risks emanating from such conditions. It is
incumbent upon Railways to foresee beyond what lies below the surface to
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pre-empt loss to property in the carriage of goods.
12. Exceptions in Section 93 cannot be a device available to the Railways
to lightly dilute the strict liability cast in the main body of the Section.
13. A gainful reference in this regard may be made to the decision of the
Division Bench of the High Court of Madras in K.R. Rajamanickam
1
Chettiar Vs. Union of India , wherein, while considering the scope of the
defence of an “act of God” under Section 73 of the Railways Act, 1890,
which is pari materia to Section 93 of the Act, the High Court held as
under:-
“…The effect of the amendment made to Ss. 73 and 74 of the
Indian Railways Act by Central Act No. 39 of 1961, which had come into
force by the time the consignment in question was booked has been
considered by one of us in A.R. Ahmed & Co. v. Union of India [A.I.R.
1972 Mad. 454. 85 L.W. 413], and this court with reference to that
amended section pointed out. “The point to be noticed is that S. 73 has
changed the character of the liability of the railways from that of a bailee
into that of an insurer. Therefore, a combined reading of the principal
provision along with the proviso makes it clear that once the goods are
carried by the railways, the administration cannot escape liability for loss,
destruction, damage, deterioration or non-delivery of the goods, unless it
is established that the railway administration has used reasonable
foresight and care in the carriage of the animals or goods in question.
Even if the loss, destruction, damage, deterioration or non-delivery results
from any one of the causes enumerated therein, still the railway
administration will be liable to the owner of the goods unless it proves that
it has used reasonable foresight and care in the carriage of the animals or
goods. In other words, so long as there is a failure to use reasonable care
and foresight on the part of the railways the railways cannot escape their
liability by pointing out that such loss, destruction, damage deterioration
or non delivery was the result of the causes enumerated in the section”.
We are of the opinion that the above extract correctly sets out the legal
position with reference to S. 73 as amended by Central Act 39 of 1961.
Consequently, even if the damage was found to be the result of one of the
causes enumerated in S. 73, still the respondent cannot escape liability
unless it proves that it has used reasonable foresight and care in the
carriage of the goods.”
1
1973 SCC OnLine Mad 148
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14. Similar principles have been consistently recognized while
considering the expression “act of God” in other jurisdictions as well. In the
2
landmark English decision of Nugent Vs. Smith , the expression “act of
God” has been defined as “ such a direct, and violent, and sudden, and
irresistible act of Nature as could not by any amount of ability have been
foreseen, or if foreseen, could not by any amount of human care and skill
have been resisted. ” Similarly, in The Queen Vs. The Commissioners of
3
Sewers for Essex , it was observed that the expression “act of God” is
confined to events which could neither reasonably have been foreseen nor
guarded against.
15. A reference may also be made to the landmark decision of the
Supreme Court of the United States in Gleeson Vs. Virginia Midland
4
Railroad Co. . In the said case, a landslide triggered by rainfall led to a train
accident, which resulted in deaths and serious injuries to the passengers,
whereafter the railway company sought exemption from liability on the
ground that the incident was an “act of God”. The United States Supreme
Court observed that once the occurrence of the accident is established, the
burden rests upon the carrier to demonstrate that its whole duty had been
performed and that the injury was unavoidable by human foresight.
16. It clearly follows that the mere occurrence of heavy rains or flooding
would not, by itself, absolve the respondents of liability. Even where the
respondents seek to invoke an excepted cause under Section 93 of the Act,
it remains necessary for them to establish that reasonable foresight and care
2
(1876) L.R. 1 C.P.D. 423. 434, 444.
3
(1885) L.B. 14 Q.B.D. 561, 574.
4
140 U.S. 435 (1891)
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were exercised, and the resultant loss was unavoidable despite such
precautions.
17. The Railways’ own accident enquiry report (Ex. R1) notes that the
area in and around BTTR Railway Station had been experiencing incessant
rainfall since 26.10.2005, whereas the accident occurred two days
thereafter, i.e. on the morning of 28.10.2005. The said report notes that the
concerned area had received about 20 cm of rain in the 48 hours leading up
to the morning of the accident. It further notes that, due to the rain, the three
irrigation tanks on the Up Stream of the Down Line of the track between
AXR and BTTR Railway Stations breached, resulting in a heavy rush of
water towards the track between KM-206/10-22 on the Down Line and
KM-206/9-23 on the Up Line, as a result of which extensive damage
occurred to the railway track and the bridges, causing 3 wagons, including
the one carrying the appellant’s consignment, to capsize.
18. There can be no dispute as to the fact that the existence and location
of the 3 irrigation tanks situated in the vicinity of the railway track were
well within the knowledge of the Railways, as trains routinely operated
through the said stretch. The prevailing weather conditions, too, were
neither sudden nor unforeseen. The Railway Administration was fully
aware that heavy rainfall had persisted for nearly 2 days before the accident
in question. In such circumstances, faced with continuous rainfall over
successive days and operating trains through a stretch containing multiple
irrigation tanks in the vicinity of the railway track, the Railway
Administration is expected to, at the very least, maintain enhanced vigilance
over the said area. Such vigilance would necessarily include appropriate
inspection of the concerned area by railway personnel, close monitoring of
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the condition of the track and bridges, and coordination with the department
responsible for maintaining the concerned irrigation tanks. No material
whatsoever has been placed on record by the respondents to demonstrate
that any such measures were undertaken by the Railway Administration.
19. On the contrary, the report reveals a reactive response, insomuch as
the driver of the train encountered fallen trees on the track in real time and
observed overflowing water, whereupon he halted the train before local
information regarding the breach of the tanks began to emerge, rather than
the exercise of reasonable care in the face of a clearly foreseeable risk.
20. No material has been produced to show that any enhanced inspection
of the vulnerable stretch was carried out despite continuous rainfall over the
preceding days or that any communication was established with the
Irrigation Department to check the condition of the nearby tanks before
permitting the movement of trains through the concerned stretch.
21. Equally, while the Railways’ enquiry report deals at length with the
measures undertaken by the Railway Administration after the accident in
question to restore the functioning of the affected railway lines, it is
completely silent on the measures adopted by the Administration after the
accident for the preservation, protection, and proper handling of the
appellant’s consignment.
22. At the risk of repetition, the Tribunal itself observed that heavy rains
and flooding are not uncommon occurrences in this country and that the
Railways, being an organisation with more than 150 years of operational
experience, is expected to possess the requisite expertise to deal with such
eventualities. Having recorded these findings, the Tribunal could not have
simultaneously concluded that the respondents stood absolved of liability
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merely because the Irrigation Department had failed to issue an advance
warning regarding the breach of the tanks. On the contrary, the very
expertise which the Tribunal attributed to the Railway Administration
demanded that it anticipate the risks ordinarily associated with prolonged
rainfall, especially in vulnerable stretches containing multiple water tanks
near the railway track, and take appropriate preventive measures before
permitting trains to pass through.
23. The Tribunal proceeded on the premise that, since the Irrigation
Department was responsible for maintaining the tanks, the respondents
automatically stood absolved of liability. Such an approach overlooks the
true scope of Section 93 of the Act. Even if the Irrigation Department was
negligent in maintaining the tanks or in failing to communicate the
possibility of their breach, such negligence cannot extinguish the
independent statutory liability of the Railways unless it is established that
reasonable foresight and care were exercised. That burden has not been
discharged in the present case.
24. It was a statutory duty of the Railways cast under Section 93 of the
Act to anticipate the risk from the overflowing water tanks, due to heavy
rainfall, close to the tracks. The Railway Administration is expected to
foresee all risks to the tracks due to rain, especially in a region with heavy
rainfall. The foreseeability is not confined to apparent and superficial risks
visible on the surface that could be anticipated even by a layman, but the
hidden risks that only an expert can foresee lying below the surface.
25. It’s about time that a national mass transporter like Railways is held
accountable to high professional standards expected of an organisation of
such large size and mass impact.
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26. Considering all the aforesaid, this Court is of the considered opinion
that neither has it been established that the damage to the consignment in
question was occasioned by an inevitable natural calamity that no amount of
foresight could have guarded against, which would fall within the ambit of
an “act of God” as contemplated under Section 93(a) of the Act, nor has the
Railways succeeded in proving the exercise of reasonable foresight and
care. This Court is, therefore, unable to sustain the findings returned by the
Tribunal on these points.
27. Before proceeding any further, it is apposite to note that, apart from
the respondents’ plea regarding “act of God” as under Section 93(a) of the
Act, the Tribunal had also framed issues regarding: (i) whether the claim
application had been signed, verified, and filed by a duly authorised person
on behalf of the applicant; (ii) whether the consignment had been booked on
a “said to contain” basis and whether proper packing conditions had been
complied with by the applicant, and, if not, what had been the effect
thereof; (iii) whether the respondents were entitled to the protection of
Sections 98 and 65 of the Act; and (iv) the amount of compensation, if any,
to which the applicant was entitled.
28. The Tribunal decided the issue relating to the proper institution of the
claim application in favour of the applicant/appellant, and the said finding
has not been assailed by the respondents. However, the remaining issues
were left undecided, as the Tribunal confined its consideration to the plea of
“act of God” and disposed of the claim on that basis alone.
29. Considering that the present lis has remained pending since 2006, this
Court deems it appropriate to proceed to determine the remaining issues
instead of remanding the matter to the Tribunal.
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30. Insofar as the issue relating to the alleged booking of the
consignment on a “said to contain” basis and the alleged non-compliance
with the prescribed packing conditions is concerned, the evidence led by the
parties may first be noted. On behalf of the appellant, its sole proprietor, Sh.
Surender Kumar , was examined as AW-1. He exhibited, inter alia , a
photocopy of the concerned Railway Receipt as Ex. AW-1/1 and
categorically deposed in his evidence by way of affidavit that the
consignment had been entrusted to the Railway Administration in a
perfectly sound condition for carriage. During his cross-examination, he
stated that he was present at the originating station at the time of loading of
the consignment, though he had not himself booked the consignment. He
specifically denied the suggestion that the Railway Receipt had been
prepared on a “said to contain” basis. He, however, admitted that the
Railway Receipt contained a remark to the effect that dunnage had not been
provided and that an 18-inch space had not been left in the wagon.
31. On behalf of the respondents, Sh. Jasbir Singh , CMI, R.C.T., Delhi ,
Northern Railway, was examined as RW-1. He exhibited the copy of the
Railways’ accident enquiry report as Ex. R-1 and stated that he had no
personal knowledge of the contents thereof. RW-1 was not cross-examined,
and no other witness was examined on behalf of the respondents.
32. No official connected with the booking, loading, or acceptance of the
consignment was examined by the respondents. Except for the bald
averments made in the written statement and the endorsement appearing on
the Railway Receipt, no material has come on record to explain the nature
of the said packing requirements, whether the same were mandatory in the
facts of the present case, or how the alleged non-compliance therewith
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contributed to the damage to the consignment. As already noted
hereinabove, the material on record establishes that the damage to the
appellant’s consignment occurred when the wagon carrying the same
capsized after the railway track suffered extensive damage owing to the
breach of the irrigation tanks. No material has been placed on record by the
respondents to establish any causal link between the alleged deficiencies in
packing and the damage to the appellant’s consignment. In the absence of
any such evidence, this Court is unable to hold that the respondents have
discharged the burden of establishing that the alleged booking of the
consignment on a “said to contain” basis or the alleged non-compliance
with the packing requirements absolves the Railway Administration of its
statutory liability.
33. The respondents have also claimed the protection of Sections 65 and
98 of the Act. However, apart from summarily taking the said pleas in the
written statement, no evidence has been led to substantiate the same and
establish how the said provisions stand attracted to the facts of the present
case. No witness has deposed as to the manner in which the requirements of
the said provisions stood satisfied in the facts of the present case. In these
circumstances, the respondents cannot be held to have discharged the
burden of establishing that they are entitled to the protection of the
aforesaid provisions.
34. This brings us to the question of the compensation payable to the
appellant. AW-1 deposed that the rates quoted by him for the turmeric and
black pepper in his affidavit, on the basis whereof the claim amount had
been computed, did not include any profit margin. Other than a mere denial
of the value of the consignment by the respondents in the written statement,
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the said testimony remains unshaken. Significantly, the respondents have
not led any evidence whatsoever disputing the valuation of the
consignment.
35. In the absence of any evidence to the contrary and considering the
totality of circumstances, this Court finds no reason to disbelieve the
valuation put forth by the appellant.
36. In view of the aforesaid discussion, the impugned judgment is set
aside and the respondents are directed to pay the claimed compensation
amount of Rs.22,18,906/- to the appellant along with simple interest at the
rate of 12% per annum from the date of the amended notice under Section
106 of the Act, i.e. 25.11.2005, till its realisation. The said amount shall be
released to the appellant within a period of four weeks from today.
37. The present appeal is disposed of in the above terms.
(MANOJ KUMAR OHRI)
JUDGE
JULY 17, 2026
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