Heard Mr. D.K. Dey, learned counsel for the appellant as well as Mr. H.P. Barman, learned counsel appearing for the respondent.

2. By filing this appeal under Section 23 of the Railway Claims Tribunal Act, 1987, the appellant has challenged the judgement and order dated 05.08.2010 passed by the learned Claims Tribunal, Guwahati Bench, Guwahati in Application No. 495/07(M-21/04).

3. At the outset it would be relevant to record that this appeal was admitted by order dated 27.05.2009 and since then the Registry of this Court has issuing continuous reminders for requisition the records of the claim case from the learned Railway Claims Tribunal, Guwahati Bench, Guwahati. As the record had not been received, this Court by taking a stern note of the non-compliance of the orders, by the order dated 20.01.2017, directed the Additional Registrar of the Railway Claims Tribunal, Guwahati Bench, Guwahati to appear personally before this Court and to show cause for non-compliance of the orders. The said authority had appeared before this Court and by filing an affidavit submitted that the records were destroyed either by termites/insects or it was destroyed by flood water. On this ground, this Court had caused an inspection to be made by appointing an Advocate as Commissioner for carrying out local inspection to know about the condition of the Railway Claims Tribunal, Guwahati Bench, Guwahati and the Commissioner’s report showed a very bad condition of the court building. Accordingly, this Court issued a notice to the General Manager, N.F. Railway on the matter and now an affidavit has been filed by the General Manager, N.F. Railway, indicating that steps are being taken for maintenance of the RCT building and as the building is more than 60 years old, they are replacing the building with new RCC framed building which was being proposed in PWP 2016-17, but the work was not approved. But the same work was again proposed in PWP 2017-18 and the amount sanctioned for new RCT building is Rs.81.00 lakh and the work is under progress with a target date of completion on 15.08.2018. This aspect is being separately dealt with. This narration has been given only for the purpose of showing that the trial court’s records are not available in this case and they are destroying.

4. The fact in the present case is a short one. The respondent herein booked a consignment of rice on the basis of a Railway Receipt (R/R) which was issued on “said to contain” basis. On receipt of the goods at the delivery station, as per the assessment delivery report, 9 bags of rice out of 777 bags were delivered in cut, torn and loose condition and weight was found to be 203 Kgs. instead of 675 Kgs. so the shortage was assessed at 997 Kgs. The respondent made a claim in respect of said shortage @ Rs.9 per Kg. The learned Railway Claims Tribunal assessed the value of the rice at Rs. 8 per Kg. and held that the claimant was entitled to Rs.9796/- as the value of consignment, plus a sum of Rs.347/- towards proportionate application fee and Rs.500/- as lump sum Advocate fees.

5. As per the judgment dated 05.02.2008, the learned Tribunal recorded the submission made by the learned counsel for the respondent herein that a sum of Rs.3250/- was paid during the pendency of the claim application. The learned Tribunal held it to be part payment and by applying the ratio of the judgment of the case of Union of India and another vs. M/s. Gangaram Bhagwandas, AIR 1977 MP 2015 allowed deduction of the said amount and therefore, the balance compensation of Rs.5573/- was ordered to be paid. This order is in challenge in the present appeal.

6. The learned counsel for the appellant has produced a letter purported to be a letter dated 31.08.2004, purportedly by which the payment of Rs.3250/- was given to the respondent. It is submitted that the payment of the amount being made before the claim application was filed on 11.10.2004, this payment could not be considered to be a part payment. But i