IMPORTANT POINT
The burden of proof for negligence in non-delivery lies with the consignor when goods are transported at owner's risk rate.

JUDGMENT :

(Robin Phukan, J.)

Heard Mr. D. Rathi, learned counsel for the appellant and also heard Ms. M. Chatterjee, learned counsel for the respondent.

2. This miscellaneous first appeal, under Section 23 of the Railway Claims Tribunal Act, 1987 is directed against the judgment and order dated 03.09.2012, passed by the Railway Claims Tribunal, Guwahati Bench, in Original Application No.OA-I-6/2011.

3. The back ground facts leading to filing of the present appeal is briefly stated as under:-

“The appellant herein is a proprietary concern/partnership firm. On 10.11.2009 by Invoice No.2/Railway Receipt No.21200273, a consignment of 40,444 bags of salt was booked from Chirai (CHIB) Junction to Dharmanagar (DMR) Station, under Railway Risk Rate, complying with the packing conditions prescribed by railways. But, there was shortage of delivery and the respondent had delivered only 38,702 bags of salt and the shortage was 1,742 bags and that the remark recorded in the railway receipt is contradictory to the remarks recorded to the forwarding station and the consignment was subjected to a criminal interference before delivery and the seal was found defective and there was also delay in transit, negligence and misconduct on the part of the carrier for short delivery. Under such circumstances, the appellant herein, made a claim for compensation @Rs.200/- per bag.

The respondent herein had contested the said claim and filed written statement, wherein the learned Railway Claims Tribunal had framed following issues:-

1. Was there been a proper notice under Section 106?

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

3. Reliefs and costs?

Thereafter, hearing both the parties, the learned Railway Claims Tribunal has decided the Issue No.1 in favour of the appellant and Issue No.2 in negative and Issue No.3 also in negative.”

4. Being aggrieved, the appellant has preferred this appeal on the following grounds:-

I. That, the learned Tribunal failed to appreciate the evidence and decided the matter arbitrarily without adhering to the materials placed on record. There lies discrepancy with respect to the number of bags loaded and number of bags delivered wagon wise i.e. some wagons had bags in excess and some had bags short when compared to the number of bags originally loaded into them and this fact eschewed consideration of the learned Tribunal.

II. That, at the time of delivery of the goods, the respondent had issued a delivery shortage certificate, which was also presented by the respondent in its list of evidence adduced and the same was also discussed in the impugned order, but was not relied upon in the desired manner to provide relief to the appellant. The learned Tribunal had failed to consider the fact that there was shortage of delivery of goods and upon the said fact, the delivery shortage certificate confirms and as such, the appellant is liable to be compensated.

III. That, the learned Tribunal has decided the matter without application of mind and without adhering to the materials placed on record and did not provide any justice to the appellant.

5. Mr. Rathi, learned counsel for the appellant submits that the appellant had booked the consignment from Chirai Junction to Dharmanagar Station on 10.11.2009 and the total number of consignment was 40,444 bags of salt and the consignment was delivered on 06.04.2010 and there was shortage of delivery and only 38,702 bags of salt were delivered. Then the matter was apprised to the respondent and then the respondent had issued Shortage Certificate and thereafter, on 29.09.2010, the appellant herein has issued one grievance letter to the respondent and given statutory notice on 06.04.2010 and the delivery letter on 16.05.2010 and the transshipment tally report indicates that there was delay and the consignment was in open condition and there was shortage also and the total number of bags falling short of was 1,742 bags and thereafter, the claim was made before the Railw