IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)

IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH) M.F.A No. 18/2009 Union of India (Represented by the General Manager, N.F. Railway), Maligaon, Guwahati-11, Assam...Appellant M/S Ganapati Enterprise Kyal Market, Fancy Bazar, Guwahati-1, Assam Respondent -VERSUS- -BEFORE- THE HON BLE MR. JUSTICE S. SERTO For the Appellant : Mr. S.Sarma, Ms. B. Devi, Mr. H.K.Das, Advs. For the Respondent : Mr. K.P. Maheshwari, Mr. A. Goyal, Ms. Manisha Sharma, Advs. Date of hearing : 16-02-2017 & Date of judgment : 02-03-2017

JUDGMENT & ORDER (CAV) Heard Ms. B. Devi, learned counsel for the appellant/n.f. Railway and also heard Mr. A. Goyal, learned counsel for the respondent/claimant. 1. This is an appeal under section 23 of the Railway Claims Tribunal Act, 1987 directed against the judgment and order dated 28.08.2007, passed by the Railway Claims Tribunal, Guwahati Bench at Guwahati in Application No. 245/2001. 2. The fact and circumstance leading to this appeal are stated as follows;- On 19.03.2001, the respondent herein submitted a claim petition before the Railway claims Tribunal, Guwahati Bench, Guwahati, claiming that he, as the proprietor of the farm M/S Ganapati Enterprise, had booked 5,849 kattas of sugar with the appellant/railways in safe, sound and secure condition, under the railway risk rate, after meeting all statutory and legal requirements of the Railways for transportation from NACC to NGC on 30.12.1999, under invoice/rr No. 188/931387. And following the booking the consignment arrived at the destination, but after delay in transit, and at the same time, with seal and card labels absent, doors in open condition and stakes in disturbed condition, suggesting criminal interference while enroute, and, on unloading the goods it was found that there was shortage of 414 Kgs. The Railway officers there and then verified the same and recorded in Railways record known as Unloading tally books, however, refused to issue shortage certificate and did not do so even after a request was made through a letter dated 12.05.2000, on the pretext that the goods were booked under Said to contain remarks, as such, they are not bound to issue such certificate. Therefore, the General Manager, N.F. Railway was informed through letter

dated 15.11.2000 and, requested to issue a short delivery certificate. A copy of the same was also sent to DCM, N.F. Railway, Guwahati. The General Manager, N.F. Railway also did not issue the certificate and settled the claim, therefore, a claim notice under section 106(B) of Railway Act was sent to the appellant on 02.03.2000. But, since no positive response was received a claim case was filed before the learned Tribunal claiming a sum of Rs. 6,297/- as value of the shortage in the consignment along with interest @ 10% p.a., and application fee of Rs. 380/- and Advocate fee as per rule. The respondent/claimant also prayed to the learned Tribunal to direct the appellant/respondent to produce the following documents;- (i) original RR remarks, (ii) loading tally books on delivery, (iii) Unloading tally books at destination, (iv) seal and card labels in original, (v) Railway officers as witness who put his signature remarks letter dated 12.01.2000 indicating inability to issue shortage certificate on delivery certificate. The respondent/claimant supported his claim with an affidavit sworn by him on 17.05.2007. He also filed a copy of the invoice for purchase of the sugar, copy of the letter dated 15.11.2000 addressed to the General Manager, N.F. Railway, Guwahati requesting him to issue instruction to the destination railway authorities to issue proper certificate and settled compensation claim, and the copy of the notice under section 106(B) of the Indian Railway Act, served to the General Manager, N.F Railway, Maligaon, P.O. Guwahati. A receipt issued by the N.F. Railway acknowledging the receipt of the letter dated 15.11.2000 was also submitted. The learned Tribunal on receipt of the application issued notice to the appellant/respondent and the respondent submitted their objection

denying all the claims of the respondent/claimant but admitting that the consignment was booked with them. It appears from the record of the learned Railway Claims Tribunal that the appellant were directed to produce ORRS, including tally books, delivery books, DDm, seal and card labels to prove that delivery of the consignment was in safe and sound condition. 3. After hearing the parties the Tribunal passed the impugned judgment and order dated 28.08.2007. The judgment and order is brief, therefore, it is reproduced herein below in full:- P.O. submitted copies of Delivery Book, RR and Tally book. P.O. however, failed to submit seal and card labels. A wagon load consignment of 5849 kattas of sugar of 50 Kg each was booked Ex. NACC to NGC under Invo. Nos. 118, RR No. 931387 dated 13.12.1999. As per unloading Tally dated 07.01.2000 the consignment was received complete but 42 bags of 50 kgs each were found in mouth opened, hook marked, torn and loose condition. RF of which was 1686 Kg., i.e net shortage comes to 414 kgs. P.O. pleaded that wagon was received in SRI condition. As such, there was no criminal interference. Since the bags were found in mouth opened, hook marked and loose and torn condition and the consignment was booked as said to contain and not supervised by railway staff, Rly are not responsible. P.O failed to produce seal and card labels to prove that the wagon was received in SRI condition. Besides, nothing prevented the railway to supervise loading and record deficiency, if any. As such, the Railway cannot escape responsibility. Hence the applicant s claim is allowed Rs. 15.21 per kg is the rate as per beejuk. As such, claim value comes to Rs. 6297/- Rly. should pay Rs. 6297/- + 6% p.a interest + cost + legal expanses.

ORDER Respondent Rly. is directed to pay to the appellant Rs. 6297/- (Rupees six two nine seven) along with interest of 6% p.a from the date of filing OA within 60 days from the date of this order, failing which the interest of 6% will continue till realization. Respondent Rly. shall also pay Prop. Cost & Legal Prac. Fee as per extant rule. ( R.K. Kairi) Member/Tech. RCT/GB. 4. Aggrieved the appellant/railways has come to this Court on appeal under section 23 of the Railway Claims Tribunal Act, 1987 raising the following points:- (i) That the fact that the consignment was booked at Owner s risk and under the remark Said to contain was not considered by the Tribunal at the time of passing the impugned judgments and order. (ii) That the preliminary objection of the appellant in respect of sufficiency and validity of notice was not considered by the learned Tribunal while passing the impugned judgment and award. (iii) The fact that the remark Sealed Repeat Intact was found intact at the time of delivery of the consignment was not taken into consideration while passing the judgment and order by the learned Tribunal and (iv) That the amount of compensation/award given by the learned Tribunal was beyond jurisdiction of the learned Tribunal. 5. Learned counsel for the appellant Ms. B. Devi submitted that the consignment was booked under the remark Said to contain and the same arrived at the destination with the seal and card labels intact, therefore, under section 65 of the Railway Claims Tribunal Act, 1989 read with section 97 and 110 of the Railway Act the burden of proving that such

quantity of goods was booked and such shortage was found at the destination lies with the consignor i.e. the respondent, but since the respondent/claimant failed to discharge the burden of prove he is not entitled to the claim made by him. As such, the learned Tribunal, has committed error in awarding the compensation along with interest in the impugned judgment and order. The learned counsel also cited the case of Sreeniwas Basudeo Vrs- Union of India & Ors. reported in 2002 (1) GLT 605 particularly, para-5 of the judgment. The content of the para-5 of the judgment is given herein below:- 5. The above contentions cannot be accepted. The forwarding note and the railway receipt clearly indicate that the Railway authorities never accepted the weight of the bags declared by the sender at the time of booking. The weight said to contain was acted upon only for the purpose of calculation of freight. However, the situation would have been reverse had there been evidence of weighment at the time of booking. Under no circumstances, the remark said to contain can be interpreted as contained. The learned counsel further relied on the judgment of the Patna High Court passed in the case of Union of India Vrs- Chotelal Shewnath Rai, reported in AIR 1973, Patna 244 (V 60 C 81) (1) particularly on the para-8 and 11 of the judgment. The same is reproduced herein below:- 8. The lower appellate Court placed reliance on railway receipt (Ext.A) forwarding note (Ext. G) and some writing (Ext. F) on the back of the forwarding notes and the Bijak (Ext. 2) for the purpose of holding that 211 quintals of the groundnut oil were dispatched from the sending station. According to the learned counsel appearing for the appellant none of these documents on

which the lower appellate Court has placed reliance is legal evidence for the purpose of proving the quantity of the groundnut oil dispatched from the starting @ page-pat 246 station. I have already adverted to the above that the entry about the weight of the consignment mentioned in the railway receipt and the forwarding note are no admission of the railway department about the weight carried in that consignment because in the case before us the railway has not weighed the consignment at the dispatching station and the loading was done by the sender. I have also adverted to above that Ext. F is also no admission of the railway department about the weight of the consignment. It only indicates the capacity of the wagon in which the groundnut oil was dispatched from the sending station. This does not mean that the oil was filled to the capacity of the tank when it was dispatched from the sending station. So far as Bijak (Ext.2) is concerned, this is a statement made by the consigner that 565 maunds and odd groundnut oil was dispatched from Kharsalia to Tata Nagar. The person who wrote this Bijak (Ext.2) has not been examined in this case nor is it known that the said person was actually present at the time when the groundnut oil in question was loaded in the tank wagon. As such this document (Ext.2) too cannot be said to be a legal evidence to prove that 565 maunds of groundnut oil was actually dispatched from the sending station. So on the basis of Ext. 2, it cannot be held that 565 maunds and odd groundnut oil was dispatched in the tank wagon from Kharsalia. 11. For the reasons mentioned above, disagreeing with the lower appellate Court, I hold that there is no legal evidence of the actual quantity of the groundnut oil loaded at the dispatching station. The documents relied upon by the lower appellate Court in coming to the conclusion that 565 maunds and odd groundnut oil

was dispatched from the dispatching station are not such documents from which such a conclusion can be legally arrived at since there is a want of legal evidence on this point, I hold that the plaintiff-respondent has failed to prove that there was short delivery of 112 maunds and odd of groundnut oil. 6. In reply, the learned counsel for the respondent Mr. A. Goyal submitted that the above judgments will have no application in the present case as the goods in that cases above were booked under the remark Said to contain while as in this case the goods were booked under Railway Risk. The learned counsel thereafter, submitted that the fact that the consignment was booked under the railway risk can be seen from the railway receipt issued by the appellant which was also filed by the appellant/railways before the learned Tribunal. The learned counsel drew my attention to the receipt, particularly, at the column of risk rate wherein handwritten RR appears. According to the learned counsel RR stands for railway risk. Thereafter, the learned counsel went on to submit that, the fact that the word Said to contain was stamped on the receipt cannot change the character of the booking as the letters RR are written in the risk rate column of the receipt. The learned counsel in addition submitted that the appellant/railways did not deny in their written objection, the claim of the respondent/claimant that the goods were booked under the railway risk, therefore, the submission of the learned counsel for the appellant/railways that the goods were booked under Said to contain cannot be accepted at this stage. There is no contention from the learned counsel for the appellant that the said receipt was not issued by the railway, but the only submission made by her is that the word Said to contain was stamped on it, therefore, the booking and the consignment was under the remarks Said to contain. I am unable to agree with the learned counsel for the

appellant/railways on this, because, in the right column of the receipt the word RR which indicates railway risk was written by none other than the staff concerned of the railway employees. And there is no specific denial on the same. Therefore, it is concluded that the consignment was not under the remarks Said to contain but under the remark railway risk as claimed by the learned counsel of the respondent/claimant. 7. The learned counsel for the respondent/claimant further submitted that since the goods were booked under railway risk the appellant/railways are duty bound to properly check the consignment in every way and ensure that the goods does not deteriorate or otherwise lose weight/quantity or value in transit. But since they have not done so and due to the same, shortage in the quantity of the consignment has occurred they are bound by law to compensate the loss. The learned counsel quoted the Rule-1418 of the Indian Railway Commercial Manual Volume-II to show the duties of the Railways when goods are booked with them for transportation. The same reads as follows:- 1418. Examination of packing, etc. of goods.- (a) Each package in a consignment tendered for conveyance should be carefully examined to see that it is properly and securely packed in accordance with the packing conditions laid down in the I.R.C.A Goods Tariff. In this context, the explanatory instructions contained in the rules dealing with the Packing condition for goods appearing in the tariff should be carefully studied and complied with. It should also be seen that the goods are not likely to deteriorate or otherwise lose weight or value in transit. (b) When a consignment tendered for dispatch is not packed in accordance with the packing conditions laid down in the I.R.C.A Goods Tariff or is insecurely fastened or packed or shows signs of pilferage or is in defective condition, as a consequence of which it

is liable to deterioration, leakage, wastage or damage in transit, it should be ensured that remarks as to the exact defect in packing or nature of defective condition of the consignment is recorded on the forwarding note clearly and in detail by the consignor or his authorized agent in his own handwriting. For example, consignments of grain, pulses, seeds, sugar, piecegoods, cotton, tobacco, wool, jute, provisions, etc., often get wet while being brought to the station premises for loading. These should be carefully examined and precise remarks from the consignor or his authorized agent regarding the number and condition of the affected bags, should be obtained on the forwarding note, if the consignments are not tendered in good and dry condition. The learned counsel after referring to the above provision submitted that the appellant/railways having failed to do their duties as per the above provision of the Indian Railway Commercial Manual cannot now turn around and say that they are not responsible for the lost suffered by the respondent/claimant. Since the goods of the respondent/claimant has been found to have been booked under booking rate RR (Railways Risk) I agree with the learned counsel of the respondent on this. The appellant/railways as per the Indian Railway Commercial Manual should have checked every bag loaded, in the wagon mentioned above in order to prevent loss in the quantity of the consignment during transit. Since they have not done it for whatever reason, they cannot now say that they are not responsible for the loss in the quantity of the goods booked by the respondent/claimant. 8. The learned counsel further submitted also that since the appellant/railways failed to produce the seal and card labels presumption has to be drawn against them that the wagons arrived the destination but

not in safe and secure condition and that has caused loss in the quantity of the consignment. This submission of the learned counsel is not without basis, because, it is stated in the judgment and order of the learned Tribunal that seal and card labels were not produce by the appellant/railways. In such circumstances, presumption as suggested by the learned counsel has to be drawn under section 114 of Indian evidence Act. The learned counsel also submitted at length regarding the circumstances under which the remark Said to contain can be used by railway but I find no need to go into it in view of the findings already given above. 9. Now coming to the impugned judgment and order, it would be seen from the same that the learned Tribunal after calling all the relevant documents from the appellant/railways, and basing on what is written in those documents i.e., 42 bags of 50 Kgs each were found with mouth opened, hook marks torn and in loose condition, and there was net shortage of 414 Kgs of sugar in the consignment, came to the conclusion that the appellant/railway are liable to pay the compensation claimed by the respondent/claimant. Since the conclusion was based on documents submitted by the appellant, even if it is presumed that the goods were booked under Said to contain it would have made no difference. Further, the argument that the remark seal, repeat intact was found intact at the time of delivery of the consignment but that was not taken into account does not appear to be based on facts because as stated above the learned Tribunal recorded in the judgment that the appellant/respondent failed to submit seal and card labels. It is the duty of the railways to submit seal and card labels if they want to prove that the consignment arrived reached the destination under seal, repeat intact. Under the Rule-1714 of the Indian Railway Commercial Manual the railways are to preserve seal and card labels for six months and if there is a dispute they should keep it

even longer i.e. as long as it is required in settling the dispute. Having not done so, the learned Tribunal was right in assuming or in concluding that the consignments did not reach the destination under safe and secure condition, therefore, the appellant/railways are responsible for the loss suffered by the respondent/claimant. As stated above, the delivery books, RR remark and tally books which were submitted by the appellant/railways are documents prepared by their own staff. Therefore, the appellant/railways cannot dispute on the correctness of the entries made therein. According to the tally books as mentioned in the impugned judgment and order it was found that 42 packages of sugar were found with the mouth opened, hook marks torn and in loose condition and there was shortage of 414 Kgs of sugar. Taking all these into consideration I find no reason or ground to interfere with the impugned judgment and order dated 28.08.2007 passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati. Lastly, on the issue of insufficiency of notice given by the respondent/claimant which is raised by the appellant, I cannot agree with the submission of the learned counsel because on perusal of the notice dated 02.03.2000, the respondent/claimant had sufficiently indicated for which the notice was given and what he wants from the authority concerned. In view of what has been stated above, this appeal is dismissed. JUDGE Kevi