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2012 DIGILAW 1219 (GAU)

P. P. Enterprise v. Union of India

2012-10-18

B.D.AGARWAL

body2012
1. The orders dated 24.4.2012 and 18.5.2012 passed by the learned Member, Railway Claims Tribunal, Guwahati Bench are under challenge in this appeal. The first order has been passed in Claim Application No. OA.I/GHY/2002/0007 (Old No.07/02) and the second order has been passed in Review Application No. 24/12. Heard Mr. A. Goyal, learned counsel for the appellant and Mr. A.K. Sarkar, learned standing counsel, NF Railways. I have also perused the impugned judgments/orders. The appellant had filed the claim case seeking compensation of Rs. 15,300 for shortage of 850 Kg sugar in a particular consignment. While claiming the compensation, the appellant had calculated the compensation @ Rs. 18 per kg. Though the Tribunal came to a finding that the claimant/appellant has sustained loss in the transit and is entitled to be compensated the Tribunal has dismissed the claim on the ground that no document was produced to show the market rate of sugar at the relevant period. The review prayer has been turned down basically on the ground that a final order can be reviewed only if there is discovery of new and important matter or evidence that could not produced at the time of passing of the judgment despite due diligence. In this way, the review application has been rejected basically for want of jurisdiction. Mr. Goyal submitted that under rule 7 of the Railway Claims Tribunal Rule, 1989 filing of original sale Invoice is not mandatory. The learned counsel also submitted that in absence of any such documentary evidence, the Tribunal can and should have granted compensation on the basis of the market rate, which can be worked out by way of guess work. In support of this submission, the learned counsel cited a judgment of this court rendered in the case of Chain Sukh Jain v. Union of India, (2003) 3 GLR 267. The above apart, Mr. Goyal submitted that it was not a case of no evidence at all. According to the learned counsel, in support of the pleadings, the claimant had submitted his affidavit evidence re-iterating that the market rate of sugar at the relevant time was Rs. 18 per kg. and this affidavit evidence was not controverted by adducing rebuttal evidence by the Railways. The learned counsel for the appellant also submitted that in similar circumstances, the Railway Claims Tribunal at Guwahati Bench has accepted the market rate of sugar at Rs. 18 per kg. and this affidavit evidence was not controverted by adducing rebuttal evidence by the Railways. The learned counsel for the appellant also submitted that in similar circumstances, the Railway Claims Tribunal at Guwahati Bench has accepted the market rate of sugar at Rs. 18 per Kg in absence of original invoice. To reinforce this claim, the learned counsel produced a copy of the judgment passed in Claim Application No. OA I/GHY/2002/0093. In the original judgment dated 24.4.2012, the learned Member has observed that the claimant did not produce any document to show "market rate" of the sugar, prevailing at the relevant time. In my considered opinion, the words "market rate" pre-supposes some amount of guess work in absence of conclusive evidence to assess the loss of pecuniary compensation. I am also of the view that a court or Tribunal should take uniform view in identical cases. I other words, if one set of claimants are given compensation adopting a particular method and other set of claimants are deprived of similar benefit it amounts to discrimination. When the learned Member was apprised of the High Court judgment, approving "guess work" in assessing the compensation and also accepting Rs. 18 per kg. of sugar in a claim application of 2002 either the learned Member should have agreed to the past precedents of the Tribunal or should have referred the matter to a larger Bench. With the aforesaid observations, the impugned judgments/orders are hereby set aside. The appeal stands disposed of. The learned Member, Railway Claims Tribunal, Guwahati Bench is directed to pass a fresh judgment. In case the learned Member does not agree with the previous judgment of the Tribunal rendered in Claim Application No. O-I/GHY/2002/0093 (New), he shall be at liberty to refer the matter to a larger Bench.