Railway authorities must provide adequate documentation to impose penal freights for overloading; absence of such evidence justifies a refund of excess charges.

JUDGMENT :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. B. Sharma, the learned standing counsel, Railways, appearing for the appellant. Also heard Mr. D. Rathi, the learned counsel for the respondent.

2. This appeal under Section 23 of the Railway Claims Tribunal Act, 1987, has been filed by the appellant, Union of India, impugning the judgment and award dated 27.04.2011 passed by the Railway Claims Tribunal, Guwahati Bench, in O.A. No. 166/2003.

3. The facts relevant for consideration of the instant appeal, in brief, is that the respondent had filed an original application before the Railway Claims Tribunal, Guwahati Bench under Section 16 of the Railway Claims Tribunal Act 1987, inter alia, stating that the respondent/claimant had booked a train load of consignment from JPZ to MXX on 03.06.2000 bearing invoice Nos. 185 to 194 as well as Railway Receipt Nos. 740080 to 740089. It was contended by the present respondent before the Railway Claims Tribunal, as applicants that they had booked 967 metric ton of consignment, which is permissible weight for charging of freight at normal traffic rate but the railways had, after reweighing of the goods, found it to be 988.4 metric tons and even then, it was increased to 998.9 metric ton on the allegation of overloading and imposed penal freights on imaginary weight, which according to the applicant, was totally wrong and as such, the applicant claimed refund of excess freight paid by them, which comes to Rs.52,968/-. The railways contested the claim of the applicant by filing the written statement, wherein they took the plea that the Railways have correctly imposed penal freight in exercise of powers under Section 73 of the Railways Act, 1989. The Railways also denied their liability to make refund of overcharges of Rs.52,968/- and had prayed for dismissal of the original application.

4. On the basis of the pleadings of the parties, following issues were framed by the Railway Claims Tribunal, Guwahati Branch:-

“(i) Whether notice under Section 106 of the Railways Act, 1989 was served by the applicant to the respondent?

(ii) Whether the applicant holds legal title for the claim as applied?

(iii) Whether the respondent is justified in realizing the penal freight on account of overloading and prove that there was overloading?

(iv) Whether the applicant proves that they have not overloaded and they have been wrongly levied penal freight?

(v) Relief & Order?”

5. During the enquiry before the Tribunal, the respondent (claimant) produced the copies of Railways receipts and other documents whereas the Railway Authority produced copies of circular dated 14.03.1996 as well as Weigh Bridge certificate and date wise condition of weighbridge. However, by the impugned judgment and order, the Railways Claims Tribunal, Guwahati Bench allowed the original application filed by the present respondent and directed the Railways to refund an amount of Rs.52,968/- along with an interest at the rate of 6% per annum from the date of filing of the original application till the realization within three months from the date of impugned judgment. It was also directed if the Railways failed to refund the aforesaid amount within three months it shall carry an interest @ 12% per annum till the realization. The present appellant was also directed to refund the application fees of Rs.2,510/- and legal practitioners’ fee of Rs.1,500/- to the claimant. Being aggrieved with the aforesaid judgment and order, the present appellant has preferred the instant appeal.

6. Mr. B. Sharma, the learned standing counsel, Railways, has submitted that the Railway Claims T