2026 INSC 711 C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO…………. OF 2026

(Special Leave Petition (C) No.22748 of 2025)

M/S BAJAJ TRADING

COMPANY … APPELLANT(S)

VERSUS

UNION OF INDIA … RESPONDENT(S)

J U D G M E N T

Sanjay Karol, J.

1. Leave Granted.

2. The appellant is aggrieved by the concurrent rejection

of their claim by the Railway Claims Tribunal

1

, Guwahati

1

RCT

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 2

Bench

2

in terms of order dated 3

rd

September 2012 and the

Gauhati High Court

3

by judgment dated 17

th

December 2024.

3. The appellant had entrusted the shipment of 40,444

bags of salt from Chirai Junction (CHIB), Gujarat to

Dharmanagar(DMR), Assam on 10

th

November 2009.

However, when the consignment reached DMR, delivery

recorded only 38,702 bags i.e. a shortage of 1742 bags. The

respondent-Railway Authorities issued a shortage certificate

being Serial No.82/77/57 dated 19

th

March 2010.

Accordingly, a claim notice dated 6

th

April 2010 was filed at

the rate of Rs.200 per bag totalling to Rs.3,48,400/-.

“30. Applicant is relying on exhibit R2 series i.e., copies

of the transshipment tallies. Reference to the page having

no.64 of exhibit R2 shows that at the time of

transshipment, it was found that one wagon bearing no.

SCBCN 38595 had 1286 bags of salt, wagon bearing no.

SE 180044 had 1320 bags, wagon bearing no. SC 28331

had 1205 bags, wagon bearing no. NR 90289 had 1250

bags when it was loaded with 1217 bags as per Railway

Receipt and wagon bearing no. SR 43356 had 1240 bags

which was allegedly loaded with 1217 bags. Likewise,

page no.65 says that wagon bearing no. SE 131794, which

was loaded with 1277 bags had 1173 bags, wagon bearing

no. 9931188 which was allegedly loaded with 1277 bags

had 1342 bags. Page no.66 of exhibit R2 says that wagon

bearing no. ERBCN 113457 which was allegedly loaded

with 1277 bags had 1331 bags at the time of unloading.

The above shows that either there was improper loading

or there was criminal interference during transit whereby

articles loaded in the above referred wagons were changed

2

Claim Application No: OA-I-6/2011

3

MFA No.1/2013

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 3

to the other wagons. That is a situation which is difficult

to comprehend. Transshipment tally is a document ______

by an official during his official activities. It should be

treated with some respect. When given respect, it has to

be found that case of the applicant that there was loading

as contended by him and as stated in exhibit R1

forwarding note and exhibit R4 Railway Receipt, cannot

be accepted. In view of that finding, reference to exhibit

R3 delivery certificate is not necessary. As that finding is

not possible, it is not possible to conclude that there was

short delivery.”

4. A statutory appeal MFA No.1 of 2013 was filed before

the Gauhati High Court under Section 23 of Railway Claims

Tribunal Act, 1987

4

. It appears that the Court noticed four

aspects; (a) the goods were loaded directly from the truck/cart

to the wagon by the employees of the consignor; (b) such act

of loading was not supervised by any railway staff; (c)

sender’s weight was accepted; and (d) packing conditions

were not compliant, along with taking note of the fact that the

railway receipt had the ‘said to contain’ remark. As such, the

appeal was held to be bereft of merit, and accordingly stood

dismissed.

5. We have heard Mr. Gunjan Kumar, learned Advocate

on Record for the appellant and Ms. Archana Pathak Dave,

learned ASG for the respondents.

4

RCT Act

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 4

5.1 The sum and substance of the appellant’s case is

that even if the booking was made at owner’s risk, the

general obligation cast upon the Railway Authorities,

under Section 93 of Railways Act, 1989

5

could not be

done away with; the loading of the goods was to be

supervised by a Goods Clerk (violation of Rule 1512 of

Indian Railway Commercial Manual

6

) and failure on the

part of the respondent cannot be held against the

appellant; “said to contain” bookings are only available

for “private siding” and this was a case of “railway

siding” hence, once a quantity has been mentioned in the

receipt, siding cannot be used to deny the claim; Section

97 of the 1989 Act makes it clear that the Railway

Authorities, will be liable for negligence even if booking

is under “owner’s risk”.

5.2 The case of the respondent as can be understood

from record, inter alia is that the grant of Shortage

Certificate issued by the railway authorities is, by no

means, an admission in any form; reference is made to

Section 65(2) of the 1989 Act which stipulates that in the

absence of a Clerk of the Railway having checked the

goods, the burden of proof for the number/quantity of

consignment rests with the

5

1989 Act

6

IRCM

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 5

consignor/consignee/endorsee; neither Section 93 nor

Section 97 are of any use to the appellant since the

former does not talk about shortage and the latter limits

the liability upon the railways only in cases of negligence

or misconduct along with a few other exceptions.

6. Lord Parker of Waddington, J., in the matter of cargo

ex sailing ship “Parchim”

7

, 1917 observed:

“17. According to the authorities, it is beyond doubt that

the fact that the cargo was at the buyer's risk from the

moment it was placed on board points to the property

having been intended to pass at that time. The general

principle subsequently embodied in “The Sale of Goods

Act, 1893,” (Section 20) was, as early as 1873, laid down

by Lord Blackburn in Martineau v. Kitching [L.R. 7 Q.B.

453, 454.] where he says:—

“As a general rule, Res perit domino, the old

civil law maxim, is a maxim of our law; and

when you can show that the property passed

the risk of the loss, prima facie, is in the

person in whom the property is. If, on the

other hand, you go beyond that, and show that

the risk attached to one person or the other, it

is a very strong argument for showing that the

property was meant to be in him. But the two

are not inseparable. It may be very well that

the property shall be in the one and the risk in

the other.”

7. We may also observe that before the current legislation,

there was also the Carriers Act No.III of 1865 which was

similar to the Act of English Carriers Act, 1830. There was

7

SCC OnLine PC 69

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 6

also an Indian Railways Act of 1890. The general position of

law, prior to these legislations and even prior to Indian

Contract Act 1872 has been captured by the Privy Council in

Irrawaddy Flotilla Co., Ltd. v. Bugwandass

8

, in the following

words:

“..At the date of the Act of 1872, the law relating to

common carriers was partly written, partly unwritten, law.

The written law is untouched by the Act of 1872. The

unwritten law was hardly within the scope of an Act

intended to define and amend the law relating to contracts.

The obligation imposed by law on common carriers has

nothing to do with contract in its origin. It is a duty cast

upon common carriers by reason of their exercising a

public employment for reward. “A breach of this duty,”

says Dallas, C.J., Bretherton v. Wood

7

, “is a breach of the

law, and for this breach an action lies founded on the

common law which action wants not the aid of a contract

to support it.”….”

8. Before proceeding further, let us take note of the

relevant provisions of the 1989 Act:

“65. Railway receipt

…

(2) A railway receipt shall be prima facie evidence of the

weight and the number of packages stated therein:

Provided that in the case of a consignment in wagon-load

or train-load and the weight or the number of packages is

not checked by a railway servant authorised in this behalf,

and a statement to that effect is recorded in such railway

receipt by him, the burden of proving the weight or, as the

case may be, the number of packages stated therein, shall

lie on the consignor, the consignee or the endorsee.

…

8

1891 SCC OnLine PC 11

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 7

93. General responsibility of a railway administration as

carrier of goods.—Save as otherwise provided in this Act,

a railway administration shall be responsible for the loss,

destruction, damage or deterioration in transit, or non-

delivery of any consignment, arising from any cause

except the following, namely:—

(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 an officer or

authority subordinate to the Central Government or a State

Government authorised by it in this behalf;

(f) act or omission or negligence of the consignor or the

consignee or the endorsee or the agent or servant of the

consignor or the consignee or the endorsee;

(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:

Provided that even where such loss, destruction, damage,

deterioration or non-delivery is proved to have arisen from

any one or more of the aforesaid causes, the railway

administration shall not be relieved of its responsibility for

the loss, destruction, damage, deterioration or non-

delivery unless the railway administration further proves

that it has used reasonable foresight and care in the

carriage of the goods.

…

97. Goods carried at owner’s risk rate.—Notwithstanding

anything contained in section 93, a railway administration

shall not be responsible for any loss, destruction, damage,

deterioration or non delivery in transit, of any

consignment carried at owner’s risk rate, from whatever

cause arising, except upon proof, that such loss,

destruction, damage, deterioration or non-delivery was

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 8

due to negligence or misconduct on its part or on the part

of any of its servants:

Provided that,—

(a) where the whole of such consignment or the whole of

any package forming part of such consignment is not

delivered to the consignee or the endorsee and such non-

delivery is not proved by the railway administration to

have been due to fire or to any accident to the train; or

(b) where in respect of any such consignment or of any

package forming part of such consignment which had

been so covered or protected that the covering or

protection was not readily removable by hand, it is pointed

out to the railway administration on or before delivery that

any part of that consignment or package had been pilfered

in transit, the railway administration shall be bound to

disclose to the consignor, the consignee or the endorsee

how the consignment or the package was dealt with

throughout the time it was in its possession or control, but

if negligence or misconduct on the part of the railway

administration or of any of its servants cannot be fairly

inferred from such disclosure, the burden of proving such

negligence or misconduct shall lie on the consignor, the

consignee or the endorsee.

…

99. Responsibility of a railway administration after

termination of transit.—(1) A railway administration shall

be responsible as a bailee under sections 151, 152 and 161

of the Indian Contract Act, 1872 (9 of 1872), for the loss,

destruction, damage, deterioration or non-delivery of any

consignment up to a period of seven days after the

termination of transit:

Provided that where the consignment is at owner’s risk

rate, the railway administration shall not be responsible as

a bailee 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 any consignment arising after the expiry

of a period of seven days after the termination of transit.

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 9

(3) Notwithstanding anything contained in the foregoing

provisions of this section, a railway administration shall

not be responsible for the loss, destruction, damage,

deterioration or non-delivery of 40 perishable goods,

animals, explosives and such dangerous or other goods as

may be prescribed, after the termination of transit.

(4) Nothing in the foregoing provisions of this section

shall affect the liability of any person to pay any

demurrage or wharfage, as the case may be, for so long as

the consignment is not unloaded from the railway wagons

or removed from the railway premises.”

(Emphasis supplied)

9. Section 93 casts a responsibility upon the Railways for

loss, destruction, damage, deterioration, non-delivery of goods

arising from transit. While certain exceptions are listed, the

Section also places a responsibility on the Railways itself to

demonstrate that the exceptions are applicable and further to

prove that reasonable foresight and care had been employed in

the carriage of goods. Section 97 talks about the scenarios in

which goods are loaded onto the wagons at owner’s risk. It

absolves the Railways of liability except in cases of negligence

and misconduct of the railway employees being proved. A

burden of proof for negligence/misconduct lies on the person

making the allegations. Section 99 provides that the Railways

is responsible as a bailee for loss, destruction, damage,

deterioration or non-delivery up to seven days after

termination of transit and not thereafter. Exceptions to this

Rule are provided as in the case of perishable goods, animals,

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 10

explosives or prescribed goods, along with those situations

where goods are loaded at owner’s risk. In the case of the

latter, only negligence or misconduct makes them liable.

10. If the case of the appellant is to be accepted, and

responsibility is to be fastened on the respondent- Railway

authorities, the same would have to be located somewhere

within the ambit and scope of Sections 93 and 97. One of the

primary grounds for repelling responsibility by the Railway

authorities has been ‘said to contain’ which is provided in Rule

1811 of the Indian Railway Code for Traffic (Commercial)

Department as follows :

“1811. Issue of "Said to contain" Railway Receipts

If no Railway staff is provided at a siding or if the strength

of railway staff provided is not adequate to check the

weight or the number of packages loaded in a wagon, a

remark should be recorded in the Railway receipt, by

issuing a "said lo contain" Railway Receipt. In such cases,

the burden of providing the weight or as the case may be.

the number of packages stated in the Railway Receipt

shall lie on the consignor, consignee or the endorsee.”

The non-obstante clause under Section 97 also becomes

important.

10.1 In Mohd. Abdul Samad v. State of Telangana

9

,

B.V. Nagarathna J. observed as under:

“82. A non obstante clause is usually appended to a

section in the beginning with a view to give the enacting

9

(2025) 2 SCC 49

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 11

part of the section, in case of a conflict, an overriding

effect over the provision or the Act mentioned in the non

obstante clause. In other words, in spite of the provision

or the Act mentioned in the non obstante clause, the

enactment following it will have its full operation or that

the provisions embraced in the non obstante clause will

not be an impediment for the operation of the enactment.

Thus, a non obstante clause is a legislative device used

by a Parliament or legislature sometimes to give an

overriding effect to what has been specified in the

enacting part of a section in case of a conflict with what

is contained in the non obstante clause as stated above.

83. Further, a non obstante clause has to be distinguished

from the expression “subject to” where the latter would

convey the idea of a provision yielding place to another

provision or other provisions to which it is made subject

to. Also, the expression “notwithstanding anything in

any other law” in a section of an Act has to be contrasted

with the use of the expression “notwithstanding anything

contained in this Act”, which has to be construed to take

away the effect of any provision of that particular Act in

which the section occurs but it cannot take away the

effect of any other law. [Source : Principles of Statutory

Interpretation by Justice G.P. Singh, 15th Edn., Chapter

5.4, p. 284.]”

10.2 In A.G. Varadarajulu v. State of T.N

10

., a co-

ordinate Bench observed as follows with reference to the

interpretation of the non obstante clause as given by the

eleven-judge bench in Madhav Rao Jivaji Rao Scindia v.

Union of India

11

,

16. It is well settled that while dealing with a non

obstante clause under which the legislature wants to give

overriding effect to a section, the court must try to find

out the extent to which the legislature had intended to

10

(1998) 4 SCC 231

11

(1971) 1 SCC 85

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 12

give one provision overriding effect over another

provision. Such intention of the legislature in this behalf

is to be gathered from the enacting part of the section.

In Aswini Kumar Ghose v. Arabinda Bose [(1952) 2

SCC 237 : AIR 1952 SC 369 : 1953 SCR 1] Patanjali

Sastri, J. observed:

“The enacting part of a statute must, where it is

clear, be taken to control the non obstante

clause where both cannot be read

harmoniously;”

In Madhav Rao Scindia v. Union of India [(1971) 1 SCC

85] (SCC at p. 139) Hidayatullah, C.J. observed that the

non obstante clause is no doubt a very potent clause

intended to exclude every consideration arising from

other provisions of the same statute or other statute but

“for that reason alone we must determine the scope” of

that provision strictly. When the section containing the

said clause does not refer to any particular provisions

which it intends to override but refers to the provisions

of the statute generally, it is not permissible to hold that

it excludes the whole Act and stands all alone by itself.

“A search has, therefore, to be made with a view to

determining which provision answers the description

and which does not.”

10.3 In Chandavarkar Sita Ratna Rao v. Ashalata S.

Guram

12

, it was observed:

67. A clause beginning with the expression

“notwithstanding anything contained in this Act or in

some particular provision in the Act or in some particular

Act or in any law for the time being in force, or in any

contract” is more often than not appended to a section in

the beginning with a view to give the enacting part of the

section in case of conflict an overriding effect over the

provision of the Act or the contract mentioned in the non

obstante clause. It is equivalent to saying that in spite of

the provision of the Act or any other Act mentioned in

the non obstante clause or any contract or document

12

(1986) 4 SCC 447

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 13

mentioned the enactment following it will have its full

operation or that the provisions embraced in the non

obstante clause would not be an impediment for an

operation of the enactment. See in this connection the

observations of this Court in South India Corpn.

(P) Ltd. v. Secretary, Board of Revenue,

Trivandrum [AIR 1964 SC 207, 215 : (1964) 4 SCR

280].

11. In view of the above discussion, the non obstante clause

contained in Section 97 would exclude the general obligations

cast on the Railway by Section 93. Since, in the present case

the goods were booked at ‘owner’s risk’, if liability is to be

fastened on the authorities, it can only be done if negligence

or misconduct on its part or its employees.

12. Now, let us attempt to understand negligence. A

question may arise as to why only aspects of negligence are

taken into consideration. It is so because there are allegations

of the seal(s)being broken or the carriages being in open

condition on reaching the transshipment point. There aren’t

any specific allegations of misconduct by employees of

Railway wagons found to be open, would still not come to the

rescue of the appellants.

12.1 Concise Oxford English Dictionary

13

, the term

“negligence” is defined and explained as under:

13

Tenth Edition

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 14

“negligence ▪ n. failure to take proper care over

something. Law - breach of a duty of care which results

in damage.”

“neglect ▪ v. fail to give proper care or attention to. fail

to do something. ▪ n. the state or process of neglecting or

being neglected. failure to do something.”

12.2 Black’s Law Dictionary

14

defines “negligence”

as under:

“the omission to do something which a reasonable man,

guided by those ordinary considerations which

ordinarily regulate human affairs, would do, or the doing

of something which a reasonable and prudent man would

not do.”

12.3 P Ramanatha Aiyar’s Advanced Law Lexicon

15

defines “negligence” as:

“A coming short of the performance of duty

Failure to use the care that a reasonable and prudent

person would have used under the same or similar

circumstances.”

12.4 In Poonam Verma v. Ashwin Patel

16

, it was held:

“42. Negligence has many manifestations — it may be

active negligence, collateral negligence, comparative

negligence, concurrent negligence, continued

negligence, criminal negligence, gross negligence,

hazardous negligence, active and passive negligence,

wilful or reckless negligence or negligence per se, which

is defined in Black's Law Dictionary as under:

“Negligence per se.—Conduct, whether of

action or omission, which may be declared

14

https://www.latestlaws.com/wp-content/uploads/2015/04/Blacks-Law-

Dictionery.pdf

15

Third Edition

16

(1996) 4 SCC 332

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 15

and treated as negligence without any

argument or proof as to the particular

surrounding circumstances, either because it

is in violation of a statute or valid municipal

ordinance, or because it is so palpably

opposed to the dictates of common prudence

that it can be said without hesitation or doubt

that no careful person would have been

guilty of it. As a general rule, the violation of

a public duty, enjoined by law for the

protection of person or property, so

constitutes.””

12.5 In Rajkot Municipal Corpn. v. Manjulben

Jayantilal Nakum

17

, the concept of negligence was

explained in detail, as follows:-

“14. Negligence has been viewed in three ways. Firstly

involving a careless state of mind; secondly, a careless

conduct; and thirdly, a tort in itself. Every case giving

rise to tortious liability, consists of injury and damage

done due to negligence. Injury and damage may be

found due to breach of contract or tort. We are

concerned in this case with the injury and damage in

tort. Therefore, it is necessary to dwell, in depth, on

strict liability, absolute liability or special liability. In

the present case, the omission alleged is to take care of

periodical check-up of the condition of the trees. The

degree of liability depends upon the degree of mental

element. The elements of tort of negligence, therefore,

consist in (a) duty of care; (b) duty owed to the

plaintiff; and (c) it has been carelessly breached.

Negligence does not give rise to liability unless the law

fastens the duty of care in given circumstances. Duty is

an obligation recognised by law to avoid conduct

brought with unreasonable risk of damage to another.

17

(1997) 9 SCC 552

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 16

The question whether duty consists in a particular

situation involves determination as a question of law.

15. Negligence would include both acts and omissions

involving unreasonable risk of having done harm to

another. The breach of duty must cause damage. How

much of the damage to be compensated by the

defendant should be attributed to his wilful conduct and

how much to his wilful negligence or careless conduct

or remissness in performance of duty, are all relevant

facts to be considered in a given act or omission in

adjudging duty of care. The element of carelessness or

the breach of duty and whether that duty is towards the

plaintiff or the class of persons to which the plaintiff

belongs are important components in tort of

negligence. Negligence would, therefore, mean

careless conduct in commission or omission of an act,

whereby another to whom the plaintiff owed duty of

care has suffered damage. The duty of care is crucial in

understanding the nature and scope of tort of

negligence. The question in each case is whether the

defendant has been negligent in the performance of

duty or omission thereof. Determination of duty of care

also involves statutory action which requires detailed

examination…”

12.6 This Court in Jay Laxmi Salt Works (P) Ltd. v.

State of Gujarat

18

, observed:

“14. … Law of torts, however, is not confined and

cannot be strictly categorised. Where the State

undertakes common law duty its actions may give rise

to common law tort. Negligence in performance of

duty is only a step to determine if action of Government

resulting in loss or injury to common man should not

go uncompensated…”

18

(1994) 4 SCC 1

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 17

13. What we must now consider is whether, the Union of

India, through the concerned Railway, had a duty towards the

goods of the appellant. If only, the answer to this question is

in the affirmative, then can liability be fastened upon them

under Section 97 of the 1989 Act.

14. The proviso to Section 65(2) which we have

reproduced above provides that when the particulars of a

consignment being loaded are not verified by the Railway

employees, burden of proof in regard thereto shall apply on

the consignor, consignee or endorsee. For it to be established

that the Railway authorities were negligent, it has to be shown

that they had a duty of care. Had they, at any stage been

involved in the noting, counting or weighing of goods, thereby

being actively aware of the amount being transported by them,

then, it could be said that they had duty to ensure that the total

amount that they have counted or weighed, was the amount

they ought to safely transit to the end destination. This was

not the case.

15. The learned Single Judge has correctly observed that

the appellant has not provided any documents to show that a

particular number of bags were procured and processed and

then were being further sent for iodisation. In other words, the

burden of proof as per the proviso to Section 65(2) was not

C.A.No..of 2026 @ SLP(C)No.22748 of 2025 Page | 18

discharged. Once this burden had been discharged, only then

could we come to the question of there being any

negligence/misconduct on part of the Railways or its

employees if liability was to be fastened upon them despite

the fact that the same had been booked in the “owner’s risk”

category.

16. The appeal is dismissed. Pending application(s) if any

stands disposed of.

…………………………J.

(SANJAY KAROL)

………………………… .J.

(VIPUL M. PANCHOLI)

New Delhi;

July 16, 2026