JUDGMENT :

1. Heard Ms. U. Chakraborty, the learned senior counsel appearing for the Railways-appellant. Also heard Ms. M. Sharma, the learned counsel appearing for the respondent. This is a common Judgment for these two cases.

2. The appeals are filed under section 23 of the Railways Act, 1987, against the judgment dated 20.4.2015, passed by the Railways Claims Tribunal at Guwahati in Claim Application No. OA III/GHY/2005/0618(New), (Old No. OA 618/2005) and the judgment dated 20.4.2015 passed by the Railways Claims Tribunal at Guwahati in Claim Application No. OA.III/GHY/2005/0629(New), (Old No. OA 0629/05).’

3. The short question that arises in these two appeals is as to whether section 74 of the Railways Act of 1989 debars the consignor to claim excess freight charge, which was paid at the time of booking.

4. This court in MFA No. 7/2005 has held as under:

“The question of payment of freight charges arises at the stage of initial booking of the consignment by the Railway Wagons and, therefore, it is threshold transaction. At that stage the property does not pass on to the consignee or the endorsee under section 74 of the Act. It is only when the goods are booked and Railway Receipt is delivered to the consignee or the endorsee that section 74 of the Act of 1989 will come into play. At the stage of booking the consignment, the title to the property remains with the consignor and the Railway authorities are obliged to realize the correct freight charge from the consignor. Therefore, if there is an error in realization of the freight, it would be open for the consignor to claim refund of the excess amount since it is the consignor who had paid the excess amount. There is nothing in the Railways Act, 1989 which prohibits the person who has paid the excess freight to claim refund of the same by following the due process of law.”

5. The learned counsel Ms. Chakraborty has submitted that the respondent, being the consignor, is not entitled to seek compensation on the ground that when Railways receipt is handed over to the consignee, it is the consignee who can seek compensation from the Railways. Ms. Chakraborty has, therefore, referred to section 108 of the Railways Act of 1989.

6. Per contra, Ms. Sharma submits that the freight charge is normally paid on the basis of distance between the loading point to the destination point and that is why Ms Sharma, has supported the judgments of the Tribunal.

7. In MFA No. 40/2015, the Railway received the freight charge for the distance of 2,226 kilometers @ Rs. 164.34 per quintal. The train actually travelled 2070 kilometers and, therefore, the Railways should have charged Rs. 156.73 per quintal.

8. In MFA No. 41/2015, the Railways collected freight charge for covering distance of 1,852 kilometers @ 147.13 per quintal, whereas the train actually travelled 1839 kilometers and the correct freight charge should have been Rs. 145.86. That is the reason why the Tribunal directed the Railways to pay certain amount to the consignor.

9. The freight charge is paid at a time of initial booking. The consignor pays the freight charge on the basis of the distance to be covered by the train. If the consignor pays more then what it should have paid, naturally the Railways has to return him the access money. This court is of the opinion that in this matter, section 74 of the Railways Act of 1989 has no relevance. Section 74 says that once the Railways receipt is handed over to the consignee, then the consignee attains all the rights and liabilities of the consignor in respect of the consignment. On the other hand, section 108 of the Railways Act of 1989, speaks about payment of compensation to the consignee in case of loss, destruction, damage, deterioration or non-delivery of goods entrusted to it for carriage. Therefore, section 108 of the Railways Act is also not relevant in this case.

10. Under the aforesaid circumstances and in view of the decision of this court in MFA 7/2005, it is hereby held that the consi