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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
Union of India, Represented by the General Manager - Petitioner
Versus
M/s. Motilal and Gouri Food Storage Pvt. Ltd. - Respondent
MFA No. 58 of 2012
Decided On : 04-08-2022
Railway Claim Tribunal Act, 1987 - Section 23, 65, 97, 106 - Appeal - Respondent herein as applicant booked a consignment from CGS (Changsari) to DMR (Dharma Nagar) vide Invoice of katta wheat. However, in destination 53,664 Kgs of wheat were delivered short by Respondent Railways to Applicant - Notice was issued under Section 106 by Applicant to Respondent Railway and thereupon claim application was filed before Railway Claims Tribunal, claiming an amount - Amount was calculated @ Rs.1200/- per quintal - Whether Applicant/Respondent herein was able to prove that they had delivered entire consignment to Applicant at destination - Whether Applicant/Respondent herein proved that they have received consignment short at destination, Tribunal below after taking into consideration provisions of Rule 1579 - Appeal was filed under Section 23 of Railway Claims Tribunal Act, 1987 challenging original judgment and order as well as order passed in review application. (Para 11)
Findings of the Court :
From a perusal of claim application, it shows that apart from application, Vakalatnama and Demand Draft, a copy of notice, a copy of shortage/damage certificate and copy of Acknowledgement letter was attached alongwith claim application - There is no other document which would have shown as to how many bags of katta wheat were loaded by Applicant - Even Railway Receipt, a copy of which is given to Applicant at time of loading was also not enclosed to claim proceedings. Railway Claims Tribunal while deciding application had relied upon Rule 1579 and Rule 1580 in IRCM Manual Volume-II of 1991 but for applying said Rules, it was then also necessary that Applicant who was consignee should prove that Railway Receipt and also shows that proviso to Section 65 was not applicable - Tribunal below did not at all take into consideration said aspect of matter entire decision of Tribunal below to hold that there was a shortage of 50364 Kgs was based upon some purported mutual agreement between parties.
Result : Appeal allowed.
JUDGMENT :
1. Heard Mrs. U. Chakraborty, the learned Special Senior counsel appointed by the Railways and Ms. M. Sharma, the learned counsel appearing on behalf of the Respondent.
2. This is an appeal under Section 23 of the Railway Claim Tribunal Act, 1987 challenging the order dated 13.09.2011 passed by the Railway Claims Tribunal at Guwahati Bench, Guwahati in Claim Application No. OA.I-15/2009 (Old), OA-I/GHY/2009/0015 (New) thereby allowing the claim of the Respondent/Applicant to the tune of Rs.5,39,398/- along with interest @ 6% per annum from the date of the order. Further to that it was also ordered that the Appellant shall make the payment within 90 days from the date of the said order failing which the amount shall carry interest @ 12% per annum till realization. The Railway Claims Tribunal further directed the Appellant herein to pay proportionate cost of the Application Fee of Rs.5163/- and Legal Practitioner’s Fee of Rs.3000/-.
3. The facts of the instant case in brief is that the Respondent herein as applicant booked a consignment on 25.08.2006 from CGS (Changsari) to DMR (Dharma Nagar) vide Invoice No.01/RR No.364245 of katta wheat. However, in the destination 53,664 Kgs of wheat were delivered short by the Respondent Railways to the Applicant. Notice was issued under Section 106 by the Applicant to the Respondent Railway and thereupon the claim application was filed before the Railway Claims Tribunal, Guwahati Bench claiming an amount of Rs.6,43,968/-. The said amount was calculated @ Rs.1200/- per quintal.
4. The Respondent Railways filed their written statement raising certain objections that the applicant had no cause of action and right to sue as the application was not verified by proper person having authority, that the application filed by Gautam Paul, M. Director without putting his signature in the verification column of the application was not maintainable. In paragraph No.5 of the written statement it was mentioned that the consignment was booked by sender at forwarding station under remarks in the Railway receipt “said to contain, wagon originally booked from GHS to CGS invoice No.1/401729 dated 19.08.2006 subsequently rebooked to DMR vide CCO/MLG’s No.C/63/L/2/DMR/08/P/06(R-B) dated 21/23.08.2006 with original load and seal of 19.08.2006 contents booked under two legs scheme first legs GHS to CGS and second legs Ex.RNY to MOGA. It was further mentioned in the Railway Receipt that the wagons not checked at CGS by Railway staff, no claim will be entertained against shortage and damage to the consignment, Re-weighment at enroute W/B at destination, OR, SWA”. Further to that it has been mentioned that the consignment was booked with the remarks in the Railway Receipt “said to contain, wagon not checked at CGS by Railway staff, no claim will be entertained against shortage and damage to the consignment”, for which the Respondent Railway were not liable for any compensation. It was mentioned that the subject consignment was booked and loaded at owner’s risk under Section 97 of the Railways Act, 1989 and as such the Railways were not liable to pay any compensation.
5. On the basis of the pleadings, as many as 5 issues were framed which were as under :
(ii) Whether the Applicant holds legal title for the claim as applied for ?
(iii) Whether the Respondent proves that they have delivered the entire consignment to the Applicant at the destination ?
(iv) Whether the Applicant proves that they have received the consignment short at the destination ?
(v) Relief or order ?
6. From the impugned judgment, it appears that the Applicant who is the Respondent herein exhibited various documents which were :
| Exhibit –A1 | Copy of Notice dated 10.02.2007 under Section 106 |
| Exhib | |
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