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2010 DIGILAW 342 (ORI)

Steel Authority of India v. Union of India

2010-05-07

B.N.MAHAPATRA

body2010
JUDGMENT B.N. MAHAPATRA, J. : This appeal has been filed against the order dated 04.09.1998 passed by the Railway Claims Tribunal, Bhubaneswar (for short “the Tribunal”) in O.A. No.94 of 1990, whereby the Tribunal dismissed the appellant’s appeal on the ground that no statutory notice under Section 78-B of the Indian Railways Act, 1890 (for short “the I.R. Act”) had been served on the Railways within a period of six months from the date of delivery of the goods for carriage to Railway. 2. The case of the appellant before the Tribunal was that on 26.12.1988, the appellant-Steel Authority of India entrusted 60.500 MT of new Joist from Durgapur Railway Authorities for transporting the same to Bhubaneswar. As the consignment did not reach within the reasonable time, on 21.03.1989 the appellant sent a notice under Section 78-B of the I.R. Act to the respond¬ent authority by registered post with A.D.. As the postal A.D. was not received, the appellant sent another legal notice on 12.06.1989 under Section 78-B of the I.R. Act and Section 80 of the C.P.C. to the respondent by registered post, which was duly served and acknowledged by the respondent on 14.06.1989. Thereaf¬ter the Railway Authority took step and the goods were brought to Bhubaneswar on 19.10.1989 in a transshipped wagon. On inspection of the wagon as shortage was apprehended, the appellant requested the Chief Goods Superintendent, S.E. Railways, Bhubaneswar to give weighment delivery and to send their representative to be present at the time of weighment. As the said station Superin¬tendent did not agree, the appellant got the goods weighed through Boda Marine and Central Survey Agency, a registered surveyor, immediately after unloading. On such weighment, it was found that the goods weighed 54.400 M.T. only and thus there was shortage of 6.100 M.T. The surveyor submitted a report to that effect. Finding the shortage in weighment, the appellant sent another notice dated 01.11.1989 under Section 78-B of the I.R. Act intimating the loss and sent a notice dated 06.12.1989 under Section 80 of the C.P.C. for compensation of Rs.44,286/- which is equivalent to the price of goods lost on transit. Since the respondent authority did not pay any heed to the grievance of the petitioner, he filed O.A. No.94 of 1990 before the Tribunal. Since the respondent authority did not pay any heed to the grievance of the petitioner, he filed O.A. No.94 of 1990 before the Tribunal. Learned Tribunal dismissed the appeal on the ground that notice as contemplated under Section 78-B of the I.R. Act had not been served within a period of six months from the date of delivery of goods for carriage to the railway. Hence, the present appeal. 3. Mr. S.C. Ghose, learned counsel appearing on behalf of the appellant-Steel Authority of India vehemently argued that the impugned order passed by the learned Tribunal is contrary to law and is liable to be set aside. Due to non-delivery of the goods entrusted to the respondent, on 26.12.1988, the appellant has served notice dated 21.03.1989 under Section 78-B of the I.R. Act and again on 12.06.1989 which was duly served and acknowledged by the Railway Authority on 14.06.1989. The documents in support of sending notice under Section 78-B of the I.R. Act could not be produced before the Tribunal as the same were kept in the old file, which was closed after short delivery of the goods in question by the Railways Authority on 19.10.1989. Misc. Case No.698 of 1998 was filed with a prayer to admit the postal receipt and A.D. in support of sending notice as required under Section 78-B of the I.R. Act. 4. Mr. Mishra, learned counsel appearing on behalf of the respondent-Railway Authority supporting the impugned order of the Tribunal vehemently contended that there was no infirmity and irregularity in the order of the Tribunal warranting interference by this Court. 5. The only ground on which the learned Tribunal dismissed the application of the appellant is that the appellant has not adduced any evidence in support of service of notice as required under Section 78-B of the I.R. Act claiming shortage within six months from the date of delivery of the goods for carriage to the Railway. Mr. Ghose, learned counsel appearing on behalf of the appellant-Steel Authority of India submits that when the goods despatched on 26.12.1988 from Durgapur did not reach the destina¬tion station at Bhubaneswar within the reasonable time, the appellant sent notice on 21.03.1989 under Section 78-B of the I.R. Act to the respondents by registered post. Mr. Ghose, learned counsel appearing on behalf of the appellant-Steel Authority of India submits that when the goods despatched on 26.12.1988 from Durgapur did not reach the destina¬tion station at Bhubaneswar within the reasonable time, the appellant sent notice on 21.03.1989 under Section 78-B of the I.R. Act to the respondents by registered post. As postal A.D. was not received, the appellant again sent a legal notice dated 12.06.1989 under Section 78-B of the I.R. Act and Section 80 of the C.P.C. to the respondents by registered post which was duly received and acknowledged by the respondent on 14.06.1989. The appellant filed a Misc. Case No.689 of 1998 with a prayer to admit the postal receipt and A.D. in support of sending notice under Section 78-B of the I.R. Act within a period of six months from the date of delivery of the goods for carriage to the Rail¬way. The explanation given by Mr. Ghose for not-production of evidence before the Tribunal was that the aforesaid documents were kept in the old file which was closed after short delivery of the goods in question by the Railways Authority on 19.10.1989. At this juncture, it may be relevant to produce here some of the observations and findings of the Tribunals : “The applicant company, namely, Steel Authority of India have claimed a compensation of Rs.44,286 for shortage of 6.1 metric tonnes of steel in a consignment of steel joists Ex.Durgapur Steel Exchange Yard to Bhubaneswar, booked on 26.12.1998, on R.R. No.647589. The goods were loaded in wagon No.89008 C.R. but were transshipped en route into wagon No.33662 SR. The goods reached Bhubaneswar on 19.10.89 and as the appli¬cants suspected shortage they requested delivery on re-weighment. The delivery on re-weighment was refused, and they in consequence engaged an outside surveyor viz, Marine and Central Survey Agen¬cies Pvt. Ltd. The applicants have filed a copy of the surveyors’ report, in which they have confirmed shortage of 6.1 metric tonnes. xxxx xxxx xxxx 3. The main issue is whether there was a shortage and if so the liability of Railways. 4. On the basis of a document on record especially the report of the surveyors, and the fact that goods were trans¬shipped en route and the time the goods took to reach to Durgapur to Bhubaneswar we are inclined to accept shortage. The goods took almost a year to reach from Durgapur to Bhubaneswar. 4. On the basis of a document on record especially the report of the surveyors, and the fact that goods were trans¬shipped en route and the time the goods took to reach to Durgapur to Bhubaneswar we are inclined to accept shortage. The goods took almost a year to reach from Durgapur to Bhubaneswar. The respond¬ent’s representative however pleaded that the goods have been delivered to the applicant under clear signatures. In reply, the learned counsel for the applicant company submitted that it may be so, but the Railway’s Goods Clerks seldom allow the consignee or their agents to enter remarks in the Delivery Book. We are inclined to go by the version of the Counsel for the applicants. The Railways cannot escape their liability, but the application is time barred for the statutory notice U/S 78B of the Railways Act was not served in time. xxxx xxxx xxxx Notice in this case was served for the first time on 1.11.89 followed by another on 6.12.1989. The notice was therefore not in time and notice being mandatory. The law does not provide for any condonation of delay in the service of notice.” 6. Perusal of the above observations and findings of the Tribunal reveals that the Tribunal recorded a categorical finding that the learned Tribunal was inclined to accept the claim of the appellant with regard to shortage and that the goods took almost a year to reach Bhubaneswar from Durgapur. After noticing the shortage at the time of taking delivery, the appellant sent a notice to the respondents under Section 78-B of the I.R. Act claiming compensation for shortage, and such notice was served on 01.11.1989 followed by another notice serviced on 06.12.1989. According to learned Tribunal, since the above two notices were served on the respondent after a period of six months from the date of delivery of goods on 26.12.1988, the claim is not maintainable. According to the appellant, apart from the above two no¬tices, other two notices under Section 78-B of the I.R. Act were sent on 21.03.1989 and 12.06.1989 to the respondent by registered post within a period of six months from the date of delivery of goods for carriage to the Railway. Misc. According to the appellant, apart from the above two no¬tices, other two notices under Section 78-B of the I.R. Act were sent on 21.03.1989 and 12.06.1989 to the respondent by registered post within a period of six months from the date of delivery of goods for carriage to the Railway. Misc. Case No.689 of 1998 was filed with a prayer to admit the postal receipt and A.D. in sup¬port of sending notices on 21.03.1989 and 12.06.1989 under Section 78-B of the I.R. Act within a period of six months from the date of delivery of goods for carriage to the Railway. 7. In view of the above, the case is remitted to the Tribunal for fresh adjudication and liberty is given to the appellant to adduce the additional evidence in support of his claim that notice under Section 78-B of the I.R. Act was sent within six months from the date of delivery of goods for carriage to the Railway. The Appeal is disposed of accordingly. Appeal disposed of.