IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Ananya Bandyopadhyay F.M.A 506 of 2020 With CAN 2 of 2018 (Old No. CAN 10266 of 2018)

Indian Oil Corporation Limited.

-Vs-

Union of India For the Appellant : Mr. Amit Kumar Nag Mr. Partha Banerjee For the Respondent : Mr. Sanjit Kumar Ghosh Heard on and Judgment on : 08.05.2025 Ananya Bandyopadhyay, J.:-

1. An application under Section 16 of the Railway Claims Tribunal Act, 1987 had been filed before the Railways Claims Tribunal, Kolkata Bench being Claims Application No. OA(IIU)/KOL/2010/03423 claiming for Rs.23,94,818/- which had been erroneously adjusted.

2. The claimant being Indian Oil Corporation Limited contended that a consignment of Serve RR 407 (Servo Lube Oil) was loaded in two Tank Wagons (hereinafter referred to as ‘TW’) bearing No. SE 95365 and SE/77760 loaded for carriage under Invoice No. 14 and R/R No. 0086845 on 31.05.99 ex-Budge-Budge to Patrutua being two stations falling under the jurisdiction of Eastern Railways. The Consignment was despatched by I.O.C.

Ltd., to ACOS (D) Eastern Railway, Patratu containing 45 300 KL of Serve RR 407, valuing Rs. 23,94,818/-. The applicant had been the Consignor and ACOS (D) E. Rly, Patratu was the Consignee. The Railway Authority, due to their negligence, misconduct and other lapses wrongly diverted those two wagons to Sindri and delivered to FCT/Sindri. Sindri decanted those wagons with the assistance of Respondent. The booked consignment was Serve RR 407 but Sindri alleged to have received Furnace Oil. The said events were not informed to I.O.C. Ltd. which eventually learnt of the same when Rs.23,94,818/- was deducted from their P.O.L. Bill vide Railway's C.O. No. 06003476 dated 26.3.02. Notice u/s. 106 of the Railways Act could not be served in time to the Railway, as the Consignee i.e. ACOS (D) Patratu did not inform the fact within six months. Moreover notice of Claim U/s. 106 was required to be served in the case of loss, destruction, damage, deterioration or non delivery of good carried by Railway. Since the instant case did not fall within the circumstances wherein notice was required to be served under Section 106 of the Railways Act, the appellant did not comply with the same. As soon as the I.O.C.L. received the information of wrong diversion, wrong delivery and wrong classification of goods, illegal deduction of amount Rs.23,94,818/- from I.O.C.L. in P.O.L. Bill vide C.O. No.069934 dt. 26.03.02, immediately I.O.C.L. contacted the Railways to refund their deducted amount but in vain. Letter dt. 20.01.03 to FA & CAO/Ε. Rly. to CME/E. Rly. to the CCO/E. Rly. vide letter dt. 05.03.03, were not replied to. No action was taken against the letter addressed to CCCM/E. Rly. vide letter dt.

18.10.04 and 01.02.05.

3. The Petitioner vide letter Ref No OP/41A/C-26(ER) dated 17/09/2004 intimated that ACOS(D), PATRU TWs since consumed by FCI, Sindri, the concerned Railway should have settled and recovered the cost of product from SCI, Sindri and IOC was in no way involved in settling the claim of Railway's ACOS(D), PATRU. It was the categorical stand of the Petitioner that the concerned Railways was responsible for delivery of consigned product of the Petitioner to a different party whose name was not mentioned in the forwarding note/RR. Hence, requested for settling the claim amount without further delay Further vide letter Ref: OP/41A/C-26 dated 9/11/2004 the Petitioner had requested the ACOS (D), E. Rly, Patru to send the "Disclaimer Certificate" in respect of non receipt of the TWs originally consigned to ACOS(D), E. Rly, Patru by IOC from Ex Budge Budge. The request was made on the basis of the advice given by Chief Claim & Catering Manger, E. Rly as per his letter no EA.10/ER/19511/11/99 dated 18/10/2004 for considering the refund claim of the Petitioner.

4. In compliance with the advice of Chief Claim & Catering Manger, E. Rly, the claimant vide its letter Ref: OP/41A/C-26 dat