This is an appeal under section 23 of the Railway Claims Tribunal Act, 1987 at the instance of NF Railway challenging the judgment and award dated 17.06.2010 whereby the learned Tribunal directed the railway authority to make payment of Rs. 3,22,016/- to the claimant along with interest at the rate of 5% per annum from the date of filing the claim petition till realisation failing which the amount would carry interest at the rate of 7% per annum till realisation.

2. The Railway claim case vide OA.I/GHY/413/2005 was registered on a claim petition submitted by the respondent herein wherein it was stated that 46,260 kattas each weighing 50 kg of wheat was booked from NRW and was destined to deliver at SCL under in-voice No. 1/167487 dated 24/25.10.2002. But as per Delivery Certificate issued on 19.11.2002, 4 kattas of 50 Kgs each i.e. 200 Kgs of wheat was found complete short and 1158 kattas was found in torn and loose condition for which 40052 kgs of wheat was found short. According to the claimant, there was total shortage of 40252 kgs of wheat and this is why the claimant prayed that an order be passed directing the NF Railway to make payment of compensation at the rate of Rs. 10/- per Kg. The claimant prayed that the compensation would be Rs. 4,02,520/- along with cost and interest etc.

3. On being notified, the NF Railway appeared and submitted written reply on 11.06.2010 denying the validity of claim and also challenging the service of notice under Section 106 of the Railways Act, 1989. According to the railway authority, the consignment was booked under ‘said to contain’ clause and loading was not supervised by the railway staffs. Under such circumstances, no compensation would be payable to the claimant.

4. The learned Tribunal put the parties to prove their respective cases after framing following 4 issues :-

1. Whether Notice U/s 106 was served by the applicant in time?

2. Whether the respondent has taken due care after the entrustment of the consignment to them and delivered the entire consignment intact at the destination?

3. Whether the applicant proves that they have received short delivery at destination and that they are entitled for the claim?

4. Relief and Order?

5. The claimant produced Delivery Certificate to show that there was shortage in delivery but the railway authority did not produce the seal and card labels from its side and did not produce any record whatsoever. Having heard the learned counsel for the parties and on perusal of the materials whatever made available to the court, the learned Tribunal arrived at the finding that in view of the short delivery certificate issued by the railway authority, short delivery of 40,252 Kgs of wheat stood established. Considering the previous judgment and order passed by the same Tribunal where each kilogram of wheat was valued at Rs. 8/-, the learned Tribunal applied the same principle in the present case and accordingly quantified the compensation to Rs. 3,22,016/- and directed the railway authority to make payment of the amount within a period of 3 months along with interest at the rate of 5% per annum failing which payment of interest at the rate of 7% till realisation was ordered. The learned Tribunal also allowed cost of Rs. 4,000/- and legal practitioner’s fee of Rs. 2,800/-. This judgment and order passed on 17.06.2010 has been called in question in the present appeal.

6. I have heard Mr. UK Goswami, learned counsel for the appellant and Mr. DCK Hazarika, learned counsel for the sole respondent. I have perused the lower court records.

7. Mr. DCK Hazarika, at the beginning of the hearing, has raised preliminary objection as to its maintainability. He submitted that the impugned judgment and order was passed on 17.06.2010 but the appeal was presented on 12.10.2010 before this court which is beyond the period of limitation prescribed under section 23(3) of the Railway Claims Tribunal Act, 1987. Mr. DCK Hazarika submits that the Railway Claims Tribunal Act, 1