A circular mandating the replacement of 'Owner Risk' with 'Railway Risk' precludes a 20% surcharge. Separate transport agreements constitute distinct causes of action, thus separate claims for different consignments do not violate the procedural rule against the splitting of claims.

Judgment :

Biswaroop Chowdhury, J.

1.The appellant before this Court was an applicant under Section 16 of the Railway Claim Tribunal Act 1989 and is aggrieved by the Judgement and Award dated 21-06-2016 passed by Learned Railway Claims Tribunal, Kolkata Bench in claim Application No. OA(III)/Kol/2013/0034 filed by the applicant/appellant.

2. The case of the applicant/appellant before Learned Tribunal may be summed up thus:

3. One racket of Naptha was loaded and booked EX-HDCB to I.O.C/Bahauli from 17-07-11 to 29.10.11 vide RRs. The local booking authority charged 20/RR surcharge whimsically total amounting to Rs. 8,67,595/-. Inspite of several letters representation and protest by IOCL authority to the Railway authorities against the said erroneous RR Surcharge the Railway authority did not consider IOCL against the illegal deduction of RR and regret the IOCL justified demand. Getting no other alternative to get the refund of illegally deducted 20/RR, Surcharge amounting to Rs. 86,7595/-, the applicant prayed for passing an award of Rs. 8,67,595/- with cost and interest 15% per annum from 17-07-11 till finalization of the case along with application fees Rs. 6805/- and advocate fees etc.

4. The Respondent Union of India contested the case by filing written statement. ISSUES were framed and evidence was adduced. Learned Tribunal upon considering the evidence and upon hearing the Learned Advocates for the parties by Judgment and Award dated 21-06-2016 was pleased to dismiss the claim case.

5. The appellant/applicant being aggrieved by the Judgment and Award passed by the Learned Tribunal has come up with the instant appeal.

6. Heard Learned Advocates for the parties. Perused the evidence adduced and materials on record.

7. Learned Advocate for the appellant submits that the Railway Circular dated 16-10-2007 applies to the case of the appellant. As per Goods Tariff No. 45, Part-I (VOL-II) which was given effect from 1^st April 2007 in clause 12.0 thereof the abbreviation “OR” in Column No. 6 (Captioned as 'Risk Rate') was defined as 'Owner Risk'. As opposed to the same the expression 'RR' was defined as Railway Risk'. The concept was that if the consignment was booked with the endorsement 'OR' in the Risk Rate Column (Column No.6) the risk for the same would be covered by the owner, whereas if the booking was with the endorsement 'RR' under Column No.6 the risk would be of the Railways for which payment of 20% surcharge was levied by Railways.

8. Learned Advocate further submits that during the subsistence of Good Tariff No. 45, Part-I (VOL-III) the Railway Board issued circular dated 16th October 2007, universally replacing the endorsement'OR' with 'RR'. As such from the said date there would be no option for the consigns to book a consignment by depicting 'OR' under the Risk Rate Column but the consignor would be compulsorily have to book the goods as 'RR'. In the said circular the product Petroleum Products and Gases, under which the commodity-in- question (Naptha) falls is under the 'General Tariff Lines.' Therefore as per the Circular the consignment had to be booked with endorsement 'RR' in Column-6 and would be free from levy of additional 20% surcharge. Learned Advocate also submits that the application does not fall within the purview of Order 2 Rule 2 of the Code of Civil Procedure 1908. The appellant has filed two claim case before the Railway claim Tribunal for two