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2011 DIGILAW 522 (GAU)

Union of India v. Amba Industries

2011-06-14

A.C.UPADHYAY

body2011
1. Heard Mr. B. Devi, learned standing counsel, NF Railway, appearing for the appellant, and Mr. A. Goyel, learned counsel appearing for the respondents. 2. This appeal under section 23 of the Railways Claims Tribunal Act, 1987 is directed against the judgment and award dated 12.11.2010, passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati, in Claim Application No.478/2006. 3. Facts, leading to the filing of this appeal, may be stated in brief, as follows : A consignment of total 31,269 nos. bags weighing 75 kilogram each was booked on 27.4.2006 by the respondent-applicant, from HVD to NLP under RR No.390993, 390994, 390995 and 390996, but at the destination, 3,762 Nos. bags were delivered short by the appellant-Railways. Thereafter, the respondent-applicant served a notice under section 106 of the Railways Act, 1989 to the appellant-Railways. The respondent-applicant, thereafter, filed a claim petition before the Railway Claims Tribunal, Guwahati Branch, Guwahati, stating inter alia, that the appellant-Railways is fully responsible for shortage of bags and is liable for the loss suffered by the respondent-applicant. 4. The appellant-Railways filed a written statement raising certain objections and the appellant-Railways though accepted notice under sections 106, but did not admit the service, validity and sufficiency of notice under section 106 of the Railways Act, 1989. The appellant-Railways further stated that the respondent-applicant has no cause of action and right to sue as the application filed by the respondent-applicant was not verified by proper person having authority. 5. On the basis of the pleadings of the parties, the following issues were framed by the Tribunal : 1. Whether notice under section 106 of the Railways Act, 1989 was served by the applicant to the respondent? 2. Whether the respondent has delivered the entire consignment to the applicant at the destination as per RR? 3. Whether the applicant proves that they received the consignment short at the destination? 4. What order? What relief? 6. The respondent-applicant as well as the appellant-Railways produced documents in support of their respective stand. 7. The learned Railways Claims Tribunal, Guwahati Bench, Guwahati, on careful scrutiny of the exhibits (Exbts.A.5 to A.8) decided that the notice under section 106 of the Railways Act, 1989 was delivered to the appellant-Railways authorities. The learned Tribunal, while discussing the issue Nos.2 and 3 held as follows : "Issue Nos. 7. The learned Railways Claims Tribunal, Guwahati Bench, Guwahati, on careful scrutiny of the exhibits (Exbts.A.5 to A.8) decided that the notice under section 106 of the Railways Act, 1989 was delivered to the appellant-Railways authorities. The learned Tribunal, while discussing the issue Nos.2 and 3 held as follows : "Issue Nos. 2 and 3 (These two issues are interrelated and, hence, being taken together for convenience of discussion). In their application, the Applicant has stated that they booked 31269 bags of salt in safe, sound and secured condition under proper supervision of booking railway staff at booking point, loadings were also witnessed, verified and surveyed by Government approved surveyor agencies, that the consignment was transshipped enfbute, that at the time of delivery, they found all the MG wagons without seals and all the doors in open condition, that on unloading they found 3762 bags short for which the railway issued certificates. The Delivery Certificates (Exhibits A1 to A4) shows that there was a shortage. The Respondent has not submitted the original Railway Receipt, original Forwarding Note, Transit Report, Transshipment Report, Seal and Card Labels, in absence of which it is not conclusively proved that the wagons were received in SRI condition. They have only made a general denial in their written statement without any documentary proof. During the final hearing, both the parties agreed and accepted 3762 bags as quantum of shortage. Therefore it is proved that the entire consignment was not delivered by the Respondent at the destination and the Applicant's plea that they received the consignment short stands proved. Hence, these two issues are decided against the respondent." 8. On perusal of the delivery certificate (Exhibits A1 to A4), it appears that there was a shortage and the appellant-Railways authorities did not submit the original Railway receipt, original forwarding note, transit report, transshipment report, seal and card labels, in absence of which it is not conclusively proved that the wagons were received in SRI condition. On perusal of the delivery certificate (Exhibits A1 to A4), it appears that there was a shortage and the appellant-Railways authorities did not submit the original Railway receipt, original forwarding note, transit report, transshipment report, seal and card labels, in absence of which it is not conclusively proved that the wagons were received in SRI condition. The appellant-Railways authorities could not, except making a general denial in their written statement, produce any documentary proof to prove that the railway wagons were found intact at the time of delivery of the goods and the railway wagons were admittedly loaded in safe, sound and secured condition under proper supervision of railway booking staff at the booking point, and the loadings were also witnessed, verified and surveyed by the Government approved surveyor agencies and the consignment was transshipped en-route at the time of delivery. It was also found by the appellant-Railways authorities that all the MG wagons were without seals and all the doors were in open condition and on unloading, they found 3,762 bags short, for which the appellant-Railways issued a certificate to that effect. 9. Having admitted the shortage of delivery of goods, now, the appellant-Railway authorities cannot turn around and say that the respondent-applicant is not entitled to compensation for shortage of delivery of goods. 10. Ms. B. Devi, learned standing counsel for the appellant-Railways vehemently submitted that since the booking of the goods were made in terms of the forwarding note, prepared by the consignor that is the respondent-applicant, the appellant-Railways authorities cannot be saddled with the liability of short supply of consignment. Learned counsel for the appellant-Railways authorities further vehemently submitted that it is the burden of proof of short supply of the goods on the respondent-applicant. In support of her contention, learned counsel for the appellant-Railways relied on a decision Sreeniwas Basudeo v. Union of India and Ors., 2002(1) GLT 605(2002) 2 GLR 135, wherein a single Bench of the Court observed as follows : "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. 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"." 11. However, in the instant case, unlike in Sreeniwas Basudeo (supra), the Railways Authorities themselves found and certified that the MG wagons were found without seals and all the doors were in open condition, and on unloading, they also found 3762 bags short, for which they issued certificates. Therefore, the Railways Authorities, admittedly, having found the bags missing from the Railway wagons, cannot backtrack from the responsibilities of making the goods loss incurred by the respondent-applicant. 12. Learned counsel for the appellant-Railways further relied on a decision reported in Union of India v. Shewnath Rai, AIR 1973 Pat. 244 , wherein a division Bench of Patna High Court held that the onus is on the respondent-applicant to establish the quantity of goods dispatched in the wagon and no reliance can be put on the Railway receipt, Bijak and forwarding notes for this purpose as there is no legal evidence to prove the actual quantity of goods loaded in the wagon. The relevant extracts of the decisions in Shewnath Rai (supra) read as follows : "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." 13. Learned counsel for the respondent-applicant, by referring to the rule 1713 of the Indian Railway Commercial Manual submitted that seals and labels, etc. should be removed only by the Railway staff. 14. Learned counsel for the respondent-applicant further relied on a decision of the court Mis. Jyoti Flour Mill v. Union of India and. Learned counsel for the respondent-applicant, by referring to the rule 1713 of the Indian Railway Commercial Manual submitted that seals and labels, etc. should be removed only by the Railway staff. 14. Learned counsel for the respondent-applicant further relied on a decision of the court Mis. Jyoti Flour Mill v. Union of India and. Ors., (1984) 1 GLR 276 , wherein it was observed that since the Railway Authorities did not produce the forwarding notes, the burden of proving the negligence on the part of the Railways did not shift to the plaintiff and the claimant cannot be lawfully be asked to share the loss equally. The relevant extract of the decision reads as follows : "12. In T.M. Veerappa v. Union of India (supra) it has been held that when goods are sent at the Railway risk and there is shortage in delivery on account of pilferage in transit, the case comes within the general, responsibility of the Railway Administration under section 73 and the onus lies upon them to prove that they had taken reasonable care even if the goods were proved to have been defectively packed by the consignor. Section 77-C has no application to such a case. As was held in Laduram (supra) in order that the Railway Administration may be absolved of its liability under section 73 it is necessary that in the forwarding note not only there should be a recording about the defective or improper packing of the goods but also it should be further recorded that as a result of such defective or improper packing the goods are liable to damage, deterioration, leakage or wastage. Where in the forwarding note only the fact of defective or improper packing has been recorded, but the consequence of such defective or improper packing has not been recorded, section 77C(1)(b) is not available to the Railway Administration. Similarly inK.R. Rajamanickam Chettiar v. Union of India, AIR 1974 Mad. 375 it has been held that the Railway Administration cannot escape its liability for loss, destruction etc. by pointing out that such loss was the result of any one of the causes enumerated in section 73. Similarly inK.R. Rajamanickam Chettiar v. Union of India, AIR 1974 Mad. 375 it has been held that the Railway Administration cannot escape its liability for loss, destruction etc. by pointing out that such loss was the result of any one of the causes enumerated in section 73. Similar was the finding in Chabildas Manikdas v. The Union of India, AIR 1980 AP 78 , that when any loss, destruction or damage is proved to have arisen from any omission or negligence of the consignor, the Railway Administration is not relieved of its responsibility for the loss, destruction or damages unless the Railway Administration further proves that it has used reasonable foresight and care in the carriage of the goods" 15. Referring to yet another decision Union of India v. Roop Narayan and Ors., AIR 1997 Raj. 123 , learned counsel for the respondent-applicant submitted that since the Railway Administration has failed to prove that the consignments were delivered intact and since no seal labels of the wagons were produced, the Railway Authority cannot be escaped the liability. 16. In view of the above discussions, I am of the view that the Railway Authorities cannot escape the liability of making the loss sustained by the respondent-applicant, which is categorically admitted by the appellant-Railway Authorities. 17. In view of the above, the appeal filed by the appellant-Railway Authorities is devoid of merit, and accordingly, the appeal filed by the appellant-Railway Authorities stands dismissed.