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2017 DIGILAW 454 (GAU)

Dasarath Chauhan v. Union of India

2017-04-18

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. D C K Hazarika, learned counsel for the appellant. None appears on call for the NF Railway though the designation of the Standing counsel and names of appellant’s counsels are reflected in the causelist. Hence, the matter is heard ex-parte against the respondent. 1. By filing this appeal under Section 23 of the Railways Claims Tribunal Act, 1987, the appellant has challenged the judgment and order dated 9.11.2008, passed by the Railways Claims Tribunal, Guwahati Bench, Guwahati in Application No. O.A. 409/2006. 2. At the outset, the learned counsel for the appellant by relying on the provisions of Rule 21 of the Railways Claims Tribunal Rules, 1989 framed under the Railways Claims Tribunal Act, 1987 has submitted that although as per the order sheet of the learned Tribunal, by order dated 10.5.2007, it is recorded that issues were framed, but in the judgment impugned in the present appeal, neither issues are mentioned nor there is any determination by the learned Tribunal on any of the issues so framed. 3. It would be relevant to set out the provisions of Rule 21 of the Railways Claims Tribunal Rules, 1989 which reads as follows: i. After considering the reply, the Tribunal shall ascertain upon what material propositions of fact or of law the parties are at variance and shall thereupon proceed to frame and record the issues upon which the right decision of the case appear to it to depend. ii. In recording the issues, the Tribunal shall distinguish between those issues which in its opinion concern points of facts and those which concern points of law. iii. After framing the issues, the Tribunal shall proceed to record evidence thereof which each party may desire to produce. 4. The learned counsel for the appellant further submits that in the present case, the claim was dismissed by arriving at a finding that the delivery of goods was refused on presumption of the appellant that the consignment was totally damaged and erroneously concluded that assessment of damage of the consignment would have only been possible of inspection of the consignment after arrival on opening the basket/bags by the representatives of the appellant and the respondent. He further submits that without framing of any issues the learned Tribunal decided the claim petition and dismissed the same and submits that because of the non framing of any issues, the impugned judgment order is vitiated because the appellant had no notice to prove any particular fact in issue. He, therefore, prays that this is a fit and proper case for remanding the matter for a fresh decision by the learned Tribunal after framing issues as mandated by law. The learned counsel for the appellant has also advanced his submissions on the merit of the appeal. 5. On perusal of the records received from the learned Railways Claims Tribunal, Guwahati Bench, Guwahati, it is seen that although it is mentioned in order dated 10.5.2007 that “respondent filed written statement, issues framed, applicant filed affidavit, posted for respondent cross, posted on 9.7.2007”. But the record does not reveal the framing of issues. Even on perusal of the judgment and order impugned in the present appeal, it is seen that there is no reference to any issues framed by the learned Tribunal and there was no decision of any issues. Therefore, the inevitable conclusion is that there is a procedural violation of Act 21 of the Railways Claims Tribunal Rules, 1989. Therefore, this is found to be a fit and proper case where a remand for a re-trial is considered necessary by directing the learned Railways Claims Tribunal, Guwahati Bench, Guwahati to frame issues and accept fresh evidence of the parties and thereafter determine the matter afresh. 6. As this court finds that there has been a procedural lapse this court is disinclined to adjudicate the appeal on merit. Accordingly, the appeal is partly allowed by remanding the matter for a fresh decision by the learned Railways Claims Tribunal, Guwahati Bench, Guwahati on the terms as indicated above. 7. The appellant is directed to appear before the learned Railways Claims Tribunal, Guwahati Bench, Guwahati on 8.5.2017 by producing a certified copy of this order and to take further instructions from the said learned Tribunal. 8. It is deemed appropriate to request the learned Railways Claims Tribunal, Guwahati Bench, Guwahati to expeditiously dispose of the matter in accordance with law. 9. Let the LCR be returned back.