Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 530

IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.M. SUBRAMANIAM, J.
Union of India, Owning Southern Railway, Rep.by its General Manager, Southern Railway, Park Town, Chennai & Another - Appellant
Versus
M/s. Mysore Mercantile Co., Ltd., Rep.by its Director / Authorized Signatory, B.N. Choudhary & Another - Respondent
C.M.A.No. 3545 of 2019 & C.M.P.Nos. 20674 & 20675 of 2019
Decided On : 16-02-2021

Advocates Appeared:
For the Appellants :M. Vijay Anand, Advocate.
For the Respondents:T. Rajamohan, D. Baskar, Advocates.

The weighment done at the enroute station was in accordance with the rules and provisions of the Railway Act. The weighment done by the 2nd respondent was not binding on the Indian Railways.

Headnote:
Railway Claims Tribunal Act - Weighment of consignment - Section 79, Section 83, Board's Circular No.19/2012 - The court held that the Railway Tribunal failed to consider the provisions of Section 79 and 83 of the Railways Act and the Board's Circular No.19/2012. The court found that the weighment done at the enroute station was in accordance with the rules and provisions of the Railway Act. The court also held that the weighment done by the 2nd respondent was not binding on the Indian Railways. The court set aside the order of the Railway Claims Tribunal and directed the appellants to assess and communicate the penalty charges for the excess weighment to be paid by the 1st respondent.
Fact of the Case:

The 1st respondent, M/s.Mysore Mercantile Co., Ltd., filed a Claim Petition seeking refund of punitive charges and revocation of Bank Guarantee. The Railway Claims Tribunal allowed the Claim Petition. The appellants, Union of India owning Southern Railway, filed a Civil Miscellaneous Appeal against the judgment of the Railway Claims Tribunal.
Finding of the Court:

The court found that the Railway Tribunal failed to consider the provisions of Section 79 and 83 of the Railways Act and the Board's Circular No.19/2012. The court held that the weighment done at the enroute station was in accordance with the rules and provisions of the Railway Act. The court also held that the weighment done by the 2nd respondent was not binding on the Indian Railways. The court set aside the order of the Railway Claims Tribunal and directed the appellants to assess and communicate the penalty charges for the excess weighment to be paid by the 1st respondent.
Issues: The issues framed by the Tribunal were: (1) Whether the weighments recorded by the In-motion weigh bridge at Tiruvalangadu are not correct, (2) Whether the Complainant is entitled for re-weighment as demanded by them, (3) Whether the alleged weighment made by the 2nd respondent is binding on respondents 1 & 3, (4) Whether the order claiming punitive charges is just and reasonable, (5) Whether the Complainant is entitled for refund of 50% of the alleged punitive charges and revoking of Bank Guarantee.
Ratio Decidendi: The court held that the Railway Tribunal failed to consider the provisions of Section 79 and 83 of the Railways Act and the Board's Circular No.19/2012. The court found that the weighment done at the enroute station was in accordance with the rules and provisions of the Railway Act. The court also held that the weighment done by the 2nd respondent was not binding on the Indian Railways. The court set aside the order of the Railway Claims Tribunal and directed the appellants to assess and communicate the penalty charges for the excess weighment to be paid by the 1st respondent.
Final Decision: The Civil Miscellaneous Appeal stands allowed. The order dated 14.03.2019 passed by the Railway Claims Tribunal is set aside. The appellants are directed to assess the penalty for the excess weighment of 316.54 MT and communicate the charges to be paid by the 1st respondent. The 1st respondent is directed to pay the demanded charges within a period of four weeks from the date of receipt of a demand from the appellants.

JUDGMENT :

Prayer: Civil Miscellaneous Appeal filed under Section 23(1) of the Railway Claim Tribunal Act, against the order dated 14.03.2019 passed in OA (III) / 1 / 2018 by the Railway Claims Tribunal at Chennai.

This Civil Miscellaneous Appeal on hand is preferred against the judgment dated 14.03.2019 passed by the Railway Claims Tribunal, Chennai Bench in OA(III)/1/2018.

2. The appeal is filed by the Union of India owning Southern Railway represented by its General Manager.

3. The facts in nutshell as narrated by the appellants are that the 1st respondent / M/s.Mysore Mercantile Co., Ltd., has filed a Claim Petition under Section 36(b) & (c) before the Railway Claims Tribunal, Chennai, numbered as Complaint No.1/2015, with a prayer to declare that the order passed by the 2nd appellant / Chief Goods Supervisor in proceedings No.KOKG/ICTD/Punitive charges/01/15 dated 13.01.2015 claiming punitive charges of Rs.22,35,310/- relating to the consignment of Maize booked under Invoice No.2, RR No.212000009 dated 11.01.2015 for transportation from Shimoga Town to Inland Container Depot at Chennai Tondairpet is unreasonable and further, sought for a direction, seeking refund of a sum of Rs.11,17,655/- being the 50% of the alleged punitive charges and revoke the Bank Guarantee furnished by the Complainant/1st respondent for Rs.11,17,655/- being the balance of the 50% of the alleged punitive charges, which amounts were paid subsequent to the filing of the Writ Petition as per order dated 30.01.2015 passed in M.P.No.1&2 of 2015 in W.P.No.2008/2015.

4. The Tribunal allowed the Claim Petition.

5. The 1st respondent in his complaint, has contended that 39,638 bags of maize purporting to weigh 60 kgs per bag was transported from Shimoga Town to Inland Container Depot at Tondiarpet, Chennai. The total weight as declared by the 1st respondent was 2484 MT loaded in 41 wagons. At the destination station at Tondairpet Inland Container, when the goods arrived, the 2nd appellant has done the re-weighment in transit at Tiruvalangadu Electronic In-motion Weigh Bridge and at that point of time, it was detected that there was an excess in weighment to the tune of 316.50 MT on 13.01.2015. Therefore, the 2nd appellant had levied a penalty of Rs.22,35,310/- for the excess load loaded by the 1st respondent. The calculations of excess weight per wagon had been worked out and the same was accompanied with the notice sent to the 1st respondent.

6. The 1st respondent had sought for permission to unload the wagons to avoid demurrage and also sought for re-weighment. The said request of the 1st respondent was forwarded to the Divisional Commercial Manager and the official by way of written reply categorically replied that as per the prevailing rules and norms, no re-weighment is allowed in terms of the goods transported. Aggrieved by the said decision, the 1st respondent had filed a Writ Petition in W.P.No.2008 of 2015 before the Hon'ble High Court of Madras and an interim order was passed by the High Court, directing the appellants to accept the 50% payment of Rs.11,17,655/- and also ordered to provide bank guarantee for the remaining 50% of the punitive charges. By complying with the said order, the 1st respondent had taken back his goods. Thereafter, the writ petition was transferred to the Railways Claim Tribunal.

7. It is contended that the 1st respondent is only the consignee and the consignment in question was actually booked by M/s.Supreme Proteins (Consignor). The Railway Receipt No.212000009 dated 11.01.2015 has been issued for booking of 41(BCN/BCNA/BCNAHS) wagons containing Maize in non standard gunny bags from Shimoga Town (SMET) to Inland Container Depot Tondiarpet (ICDT) at trainload class rate – 130 under Railway Risk Rate and only one rate (i.e.RR) is available for the commodity of maize and freight also collected accordingly. In the Railway Receipt, the Risk rate had been erroneously mentioned as OR(Owners Risk).

8. The consignment in question was not

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