Point of Law: Notice under Section 106 was issued to the General Manager within the stipulated period of six months and as such there cannot be any violation of rule and the delay is inconsequential.

JUDGMENT :

RUMI KUMARI PHUKAN, J.

1. Heard Mrs. U. Chakraborty, learned standing counsel appearing for the appellant Railway as well as Ms. M. Sharma, learned counsel appearing for the private respondent.

2. The present appeal is directed against the judgment and order dated 20.09.2011, passed by the learned Railway Claims Tribunal, Guwahati Bench at Guwahati, in Claim Application No. OA-1232/2007 (Old)/OA-I/GHY/2007/1232 (new), whereby the respondent/appellant was directed to pay compensation of Rs. 4,87,773/- (Rupees four lakh eighty seven thousands seven hundred seventy three) only along with interest @ 6% per annum, from the date of order through Bank Account within 90 days, failing which the amount shall carry interest @ 12% per annum till realization, on account of alleged shortage in delivery of 54197 kg. wheat, intended to be unloaded at destination Dharamnagar (DMR) station.

3. According to the applicant, the consignment of 49388 bags of wheat was booked on 21.08.2005, under Invoice No. 1/RR No. 395447, from Firojpur City Jn. (FZP) to Dharamnagar (DMR) station but at destination 26497 kg and 554 bags were delivered short by the respondent to the applicant. Accordingly notice under Section 106 of the Railways Act was served by the applicant to the respondent. Thereafter the applicant filed the present claim petition, before the learned Railway Claims Tribunal, Guwahati Bench at Guwahati stating therein that the respondent Railway is fully responsible for the shortage and therefore, liable to compensate the applicant for the loss suffered by them.

4. The respondent Railway filed their written statement, raising objection against the claim of the applicant and prayed for dismissal of the application with cost.

5. The Railway Authority in their written statement denied the value of the consignment and took the stand that consignment was loaded on the truck directly to the railway wagon under remark made in the Railway Receipt as “said to content” and as the quantity and quality of the bags were not checked by the railway staff, so the claimant/respondent was required to furnish strict proof of entrustment, actual number of bags of wheat to the Railway Administration for carriage under Section 55 of the Railway Act.

6. Upon the pleadings of both the parties, the following issues were framed:

(1) Whether notice served u/s. 106 of the Railways Act, 1989 by the Applicant to the Respondent is in time and maintainable?

(2) Whether the Applicant is entitled for the compensation against shortage as alleged in their application?

(3) Relief and Order?

7. Both the parties filed various documents in support of their respective claim.

8. After going through the documents available before it and hearing arguments of learned counsel for both sides, the learned Railway Claims Tribunal, Guwahati decided all the issues in favour of the applicant and passed the impugned judgment and order, against which the present appeal is preferred by the appellant/respondent Railway.

9. The grounds taken by the appellant Railway in the present appeal, inter-alia is that the learned Tribunal committed serious errors of both law and fact, in passing the impugned judgment merely by taking into consideration the Exhibit A2 (copy of delivery certificate for shortage) in fixing the award to the tune of Rs. 4,87,773/-. The learned tribunal overlooked the fact that the consignment in question was booked by the sender/consignor at forwarding station (Firozpur) to Dharmanagar and the same was arrived at transshipment point, Lumding with seal rivet intact condition and as such the appellant/respondent is not liable for the alleged shortage.

10. I have heard the arguments advanced by learned counsel for both sides and perused the documents available in the record.

11. The learned counsel for the appellant, primarily argued on the point of delay in filing the claim petition after furnishing notice under Section 106 of Railway Act, 1986 and that claim of the respondent cannot rest