JUDGMENT : SUMAN SHYAM, J. 1. Heard Mr. H. P. Barman, learned counsel for the appellant. I have also heard Mr. G. Goswami, learned counsel representing the respondent Railway authorities. 2. This appeal is preferred against the judgment and order dated 05.12.2013 passed by the learned Member (Technical), Railway Claims Tribunal, Guwahati Bench in Claim Application No.OA.I. 35/2010 dismissing the claim filed by the appellant as well as the subsequent order dated 27.11.2015 rejecting the Review Application filed by the appellant company seeking review of the judgment and order dated 05.12.2013. 3. The case of the appellant, in a nutshell, is that certain consignment of urea amounting to 6930 bags of 50 Kg. each was booked from FPSP Siding Phulpur to NBQ (New Bongaigaon) vide P.W. Bill No.829605 on 05.06.2000. At the destination the net content of urea in some of those bags were found to be less than 50 Kgs. According to the appellant, the shortfall of urea at the point of delivery was about 46 bags, valued at Rs.10,598/- and therefore, a claim was lodged seeking compensation for the loss suffered by the appellant company. A notice as per requirement of Section 106 of the Indian Railway Act, 1989 was served upon the respondent where after, the claim petition was filed. 4. Upon hearing the parties, the learned Tribunal had framed the following four issues :- "1. Whether there was proper Notice U/s 106 served to the respondent? 2. Whether the applicant hold title? 3. Was there any shortage in Nos. and damage also? If so, what is the quantum? 4. Relief and Order?" 5. The learned Tribunal had decided the issue No.1 in favour of the appellant but the issue No.2 was decided against the appellant on the ground that it was the Assam State Warehousing Corporation (ASWC) which was the endorsee in this case and therefore, by operation of law as prescribed under Section 74 of the Railway Act, 1989, the right of the property in the consignment would vest upon the endorsee. On such ground it was held that the appellant company was not entitled to claim any compensation due to want of title on the consignment. 6. Similarly, Issue No.3 was also decided against the appellant inter-alia on the ground that the shortage complained of was "a perceived shortage" which was computed on an assumption that each bag contained 50 Kgs. of commodity. 6. Similarly, Issue No.3 was also decided against the appellant inter-alia on the ground that the shortage complained of was "a perceived shortage" which was computed on an assumption that each bag contained 50 Kgs. of commodity. According to the learned Tribunal, the appellant had failed to discharge the burden of proof under section 110 of the Railways Act, 1989 so as to establish that there was, in fact, 50 Kgs. of urea in each bag, before seeking compensation for loss allegedly suffered by it. 7. By referring to the materials available on record, more particularly the "assessment delivery" document issued by the N.F. Ralway authorities, Mr. Barman submits that the respondents have admitted the fact that certain quantity of urea was found in melted condition and therefore, the Railway authorities would be liable to pay compensation to the appellant for the loss suffered by it to such extent. It is also the submission of Mr. Barman that the affidavit dated 12.03.2012 sworn by Sri Arun Kumar Pandey i.e. the Deputy General Manager of the appellant, was not at all considered by the learned Tribunal as a result of which an error in deciding the issue No.2 against the appellant company has occurred in this case. On the basis of such submission Mr. Barman has further contended that although a review petition was preferred by the appellant pointing out the above error, the same was also rejected by the learned Tribunal without furnishing any cogent reason. Under the circumstances, it is the submission of the appellant's counsel that the entire matter calls for reconsideration by the learned Tribunal. 8. Responding to the said submission Mr. Goswami, learned Standing Counsel, N. F. Railway, contends that the basic requirement of law under section 110 of the Act of 1989 has not been fulfilled by the appellant in this case in as much as the appellant has completely failed to adduce evidence to show that each of the bags actually contained 50 Kgs of urea. According to Mr. Goswami, unless the said fact is established by leading evidence, the question of paying compensation by the Railway administration would not arise in the facts and circumstances of the case. As such, submits Mr. Goswami, there is no scope for this Court to interfere with the impugned judgment and order passed by the learned Tribunal. 9. According to Mr. Goswami, unless the said fact is established by leading evidence, the question of paying compensation by the Railway administration would not arise in the facts and circumstances of the case. As such, submits Mr. Goswami, there is no scope for this Court to interfere with the impugned judgment and order passed by the learned Tribunal. 9. I have considered the submissions advanced by the learned counsel for the parties and also perused the materials available on record. 10. In so far as the decision in Issue No.2 is concerned, it is apparent that the learned Tribunal had proceeded on the basis that the ASWC was the owner of the goods since it was the endorsee. However, in the affidavit dated 12.03.2012 the appellant had clearly explained the circumstances under which the name of ASWC was mentioned in the R.R. A perusal of the said affidavit would go to show that the ASWC was involved in the matter only for the purpose of storage of the urea since there was a shortage of storage space on the spot. Under the circumstances, whether Section 74 of the Railways Act, 1989 would at all have any bearing in the facts and circumstances of the case or not is a matter that assumes great significance and in the opinion of this Court, was required to be examined by the learned Tribunal in the light of the averments made in the affidavit dated 12.03.2012, which has evidently not been done in this case. 11. As regards the findings recorded in respect of Issue No.3, the relevant observation made by the learned Tribunal in the impugned order are reproduced herein below for ready reference :- "It is seen from the working sheet submitted by the appellant that the perceived shortage of 46 bags has been arrived at by the applicant as under : I. Wagon No.CRBCN 150190 A 72 bags damaged as per assessment delivery. 72 bags = 2104 Kg. (actual found) 72 bags at 50 Kg = 3600 kg. (should be) Net loss = 3600 - 2104 Kg = 1496 Kg = 30 bags. Note : No assessment delivery document submitted by the applicant in this case. 2. Wagon No.CRBCN 150340 A 51 bags damaged as per assessment delivery. 51 bags = 1742 Kg. 72 bags = 2104 Kg. (actual found) 72 bags at 50 Kg = 3600 kg. (should be) Net loss = 3600 - 2104 Kg = 1496 Kg = 30 bags. Note : No assessment delivery document submitted by the applicant in this case. 2. Wagon No.CRBCN 150340 A 51 bags damaged as per assessment delivery. 51 bags = 1742 Kg. (actual found) 51 bags = 2550 Kg (should be) Net Loss = 2550 - 1742 Kg = 808 Kg = 16 bags. Note : Assessment delivery sheet for delivery of 1742 Kg. ha been submitted by the applicant in this case. Thus, total loss in two wagons claimed was 1496 + 808 = 2304 Kg= 46 bags. It is noted that the basis for the claim is the perceived shortage computed on the assumption that each bag contains 50 Kg. of the commodity. As already observed, in as much as the consignor has accepted "said to contain" RR, it is not established that the bags indeed had contained the quantum as claimed by the applicant." 12. From the above, it is apparent that the learned Tribunal had proceeded on an assumption that the shortage complained by the appellant was a "perceived shortage". However, perusal of the "assessment delivery" sheet issued by the Railway authorities with regard to Wagon No.CRBCN 150340A clearly goes to show that there was shortage of urea in the bags which were delivered and such shortfall was clearly assessed by the Railway administration themselves by taking the benchmark as 50 kgs per bag. If that be so, it appears that the Railway administration has also taken note of the fact that each bag had contained 50 Kgs. Of urea and some of the urea had melted during transit. The said aspect of the matter was, therefore, required to be appropriately considered and dealt with by the learned Tribunal which has also not been done in this case. 13. In the above context it would be pertinent to mention herein that as per Section 93 of the Railways Act, 1989, the Railway administration shall be liable to pay damages for any loss, destruction, damage or deterioration in transit except in those cases which were enumerated therein. 13. In the above context it would be pertinent to mention herein that as per Section 93 of the Railways Act, 1989, the Railway administration shall be liable to pay damages for any loss, destruction, damage or deterioration in transit except in those cases which were enumerated therein. Proviso to Section 93 clearly mentions that even in those cases which comes within the exception, the Railway administration shall have to prove that it had used reasonable foresight and care in the carriage of the goods. A plain reading of the proviso to Section 93 leaves no room for doubt that the burden to prove that the deterioration did not result due to any negligence or lack of care on the part of the Railway authorities in the carriage of the goods, was upon the Railways and not upon the consignee/consignor. 14. Although the value of the claim in this case, is not very significant when computed in terms of money, yet, since the appellant had lodged a claim and the same had been rejected by the impugned order on certain legal grounds, it would be necessary for this Court to point out that such rejection of the claim ought to have been in accordance with the provisions laid down in the Railways Act, 1989 and based on proper discussion of the materials available on record. From a careful examination of the impugned judgment I am of the view that the learned Tribunal has not only ignored relevant materials such as the affidavit dated 12.03.2012 which was available on record but had also failed to take proper note of the contents of the "assessment delivery" sheet before taking a decision as regard issue Nos.2 and 3. 15. Such being the position, the impugned judgment and order is held to be unsustainable in the eye of law. The same is accordingly set aside. Since a fresh decision of the issue Nos.2 and 3 would, in the opinion of this Court, involve re-appreciation of evidence and/or recording of new finding of fact, the matter is remanded back for a fresh decision of the issues by the learned Tribunal after due consideration of the materials on record and in the light of Section 93 of the Railways Act, 1989. The appeal stands allowed to the extent indicated above. Registry to send back the LCR. No order as to cost.