The burden of proof under Sec. 65 of the Railways Act, 1989 lies on the consignor, consignee, or endorsee to prove the number of packages stated in the Railway Receipt.

JUDGMENT :

Devashis Baruah, J.

Heard Mrs. U. Chakraborty, the learned Special Senior counsel appearing on behalf of the Railways and Ms. M. Sharma, the learned counsel appearing on behalf of the Respondent.

2. This is an appeal under Sec. 23 of the Railway Claims Tribunal Act, 1987 challenging the judgment and order dtd. 30/11/2011 passed by the Railway Claims Tribunal, Guwahati Bench, Guwahati, whereby an amount of Rs.6, 72, 720.00 along with Rs.7, 402.00 and Rs.2, 000.00 was awarded in favour of the claimant/ the respondent herein and there was a further direction to the Respondent Railways to pay the decreetal amount to the Applicant within 2 months from the date of the order failing which the amount shall carry simple interest @12% per annum till realization.

3. For the purpose of convenience the parties herein are referred to in the same status as they stood before the Railways claims Tribunal. It is the case of the claimant that there was a short delivery of 6046 Bags of salt out of a consignment containing 58, 170 Bags booked in safe, sound and secured condition from Halvad (HVD) to DIKOM under Invoice/R.R.Nos.01/212002762 and 02/212002763 dtd. 16/5/2010 and the said consignment was made over to the Railway Administration for its safe carriage and delivery to the consignee in good and sound condition. In support of the claim, the claimant has produced the receipt copy of the notice, photo copy of the R.R.s and the photo copy of Assessment Delivery Certificates (for shortage) issued by S.S./DKM/N.F. Railway.

4. The Respondent Railways filed their written statement wherein various preliminary objections were taken as regards the maintainability of the claim proceedings. Apart from that it was mentioned that the consignment was booked at the sender forwarding station under the remarks in the Railway Receipt "said to contain, train load condition complied with, loaded direct from truck/cart to wagon, loading not supervised the Railway staff, packing condition outer not complaint OR". It was also the stand taken that the subject consignment was booked at owners risk in terms with Sec. 97 of the Railways Act, 1989 and as such the Respondent was not liable for any compensation.

5. Further to that in Paragraph No.7 of the written statement it was mentioned that 5 wagons (Wagon No. (i) NRBCN-105049, (ii) SRBCN-45995, (iii) WRBCN-973493, (iv) WRBCN-5177 and (v) SRBCN-47259) of the subject consignment arrived at the destination, DIKOM with seal intact condition without any interference enroute. It was also submitted that 829 Bags were found short at the destination station from the aforesaid five sealed intact wagons and as such the Respondent is not liable for the alleged shortage. On the basis of the said pleadings, the Tribunal below framed six issues which were:

(i) Is the case maintainable ?

(ii) Was the Railway guilty of gross negligence in carriage of the disputed consignment ?

(iii) Was there any shortage and damage in the disputed consignment in transit ?

(iv) Did the Applicant suffer any loss or damage and if so, to what extent ?

(v) Is the Applicant entitled to recover the amount as claimed ?

(vi) To what other relief, if any, is the Applicant entitled ?

6. It appears on record that the claimant in support of his case had submitted the copies of the 2 R.R.s, copy of the survey report dtd. 20/5/2010, the original letter dtd. 25/5/2010 to CGS/Dikom, the original claim letter dtd. 3/7/2010 and service copy with three postal registration receipts in one page, two original Railway letter dtd. 9/7/2010, original DCM, Tinsukia letter dtd. 12/11/2010 with unloading particulars in two pages, chamber rate letter dtd. 1/7/2010, reminder letter dt. 22/11/2010.

7. On the other hand, the Railways had placed on record (i) the Railway Receipts in question, (ii) Damage and Deficiency Message, (iii) Unloading Tally Book and (iv) Forwarding Note.

8. The Tribunal took up all the six issues together and came to a finding that the Railways cannot disown t