JUDGMENT :

1. Heard Mr. G. Goswami, learned standing counsel, N.F. Railway, appearing for the appellant as well as Ms. M. Sharma, learned counsel representing the respondent.

2. This is an appeal under section 23 of the Railway Claims Tribunal Act, 1987 challenging the Judgment and Order dated 10.7.2015 passed by the Railway Claims Tribunal, Guwahati Bench in Claim Application No. 1-167/2008.

3. A consignment of petroleum product was loaded in BTP tank wagon in safe, sound and secured condition under Railway Risk Rate. The goods were loaded under proper supervision and verification of quantity loaded by dip-measure by the railways and accordingly the freight charge was collected. The BTP tank wagon was sealed by the railways as per booking condition under the Railway Risk Rate. At the destination point, the petroleum product was short deliver. The respondent claimed that the consignment was unloaded from the original wagon while enroute to the destination point and thereafter loaded into another wagon. At the destination point, the seals of the tank were missing. The contents of the wagon were also leaking. In fact, other wagons containing petroleum products also did not have the seals and the contents of the said wagons were also leaking. After inspection and verification of loss, the railways issued short certificate. The respondent claimed compensation as the shortage was due to the negligence of the railways.

4. On the basis of the pleadings of the parties, the following issues were framed:

1. Whether the notice under section 106 of the Railway Act was served by the applicant to the respondent, is in time and maintainable?

2. Whether the application is bad for mis-joinder of causes of action? (O.A. No. 1364/2007)

3. Whether the contention of the respondent that the signatory has no authority to sign and verify the application is sustainable? (O.A. No. 1364/2007).

4. Whether the case of the respondent that it settled the claim of the applicant and adjusted the sum and paid, i.e., Rs. 74,973.00 towards recovery of railways dues is sustainable? (O.A. No 1364/2007).

5. Whether the contention of the applicant that the wagon reached without seal and card label is correct? (O.A. No. 1364/2007).

6. Whether the applicant is entitled for any compensation? If so, to what sum?

7. Relief and order?

5. I have considered the submissions advanced by the learned counsels of both sides and also gone through the materials available in the record.

6. In the instant case, the Railway Claims Tribunal directed the railways to pay compensation of Rs. 1,02,480 with interest thereon @ 6% per annum along with other ancillary expenses.

7. On being aggrieved by the aforesaid order of the Tribunal, the appellant filed this appeal.

8. The proviso to section 65(2) of the Railways Act provides that in case of wagon load or trained load consignments, if a specific statement by the railway authorities is not found in the railway receipt that he had checked and verified the weight or volume of the goods of the place of origin, the burden of proof to prove as to what was the weight would be on the consigner.

9. Here, in this case, the impugned judgment has not delivered upon the contents of the railway receipts. Therefore, it will be difficult to quantify the loss sustained by the respondent-company.

10. The Tribunal failed to frame any issue on the aforesaid point. Therefore, such a judgment is not sustainable in law.

11. In view of the aforesaid observations, the appeal is allowed and the impugned judgment is set aside. Accordingly, the case is remanded to the Tribunal for framing appropriate Issues. Thereafter, the Tribunal would decide the Issues afresh and shall pass a fresh judgment.

12. Accordingly, the appeal is disposed of.

13. The LCR shall be returned.