IMPORTANT POINT
The burden of proof lies on the party asserting claims, and failure to provide evidence results in dismissal of the appeal.

JUDGMENT :

DEVASHIS BARUAH, J.

Heard Mrs. U. Chakraborty, the learned Senior Standing counsel appearing on behalf of the Appellant and Mr. D. Raimi, the learned counsel appearing on behalf of the Respondent.

2. This is an appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987 challenging the judgment and order dated 13.12.2011 passed by the learned Railway Claims Tribunal at Guwahati in Claim Application No. OA.III/GHY/2003/0178 (Old No.OA.178/03) whereby the Railway Claims Tribunal (hereinafter referred to as the “learned Tribunal”) had allowed the said application holding inter alia that the respondent herein who was the applicant in the said proceedings would be entitled to the excess amount to the tune of Rs. 31,252/- along with interest @ 6% from the date of filing of the application till the date of the order and further @9% per annum from the date of the order till the date of actual payment. In addition to that, the appellant herein was directed to pay proportionate costs to the application fee of Rs.1,827/- and the Legal Practitioner’s Fee of Rs. 1,300/-.

3. To appreciate the facts involved in the instant proceedings which led to the filing of the instant appeal is that the respondent herein who is the applicant had submitted a claim application stating inter alia that in a train load coal consisting of 41 wagons, type BCN/BCNA, the railways had overcharged freights. It the case of the applicant that the total weight was 2363.1 MT and the permissible weight for loading and the freight charging as per the Railway Rules was 2402.8 MT taking into account 58 MT for BCN wagon and 58.8 MT for BCNA wagon. However, the Railway charged weight at 2423.9 MT and thereby collected a huge amount of money as freight including penalty. It is under such circumstances, the applicant sought for refund of Rs.31,252/- along with interest and the costs.

4. The appellant herein as respondents filed their written statement wherein the claim made by the applicant was denied. It was stated that in the forwarding station, it was found that in certain wagon, the applicant had loaded coal more than the permissible carrying capacity of plus 2 tonnes and as such, the additional amount was charged along with the penal charges.

5. On the basis of the pleadings, four issues were framed by the learned Tribunal on 05.04.2011. Amongst the four issues, Issue Nos. 2 and 3 are being relevant which stipulates as to whether the respondent, i.e. the appellant herein was justified in imposing the penal freight and if not, whether the applicant who is the respondent herein has proven that they have been wrongly charged the penal freight and entitled to the refund of the penal freight. The learned Tribunal vide its judgment and order dated 13.12.2011 allowed the said application holding inter alia that as the appellant herein could not prove the excess weight, the question of realization of additional weight was not proper. In addition to that, it was observed that the appellant herein had not submitted any valid document in support of their claim. Accordingly, the learned Tribunal had directed refund of the said amount along with interest and costs as already stated herein above. Being aggrieved, the instant appeal has been filed.

6. Ms. U. Chakraborty, the learned counsel appearing on behalf of the appellant had submitted that the respondent herein had overloaded the coal in certain wagons which was duly detected in the forwarding station. Taking into account that the overloading was not much, the Railway Authorities allowed the applicants to carry on the goods on payment of the additional charges. The learned counsel further submitted that there was an overcharge of Rs.978/- which was refunded but the Respondent herein did not receive.

7. Per contra Mr. D. Raimi, the learned appearing on behalf of the applicant who is the respondent herein had submitted that the question of excess weight does