JUDGMENT : Devashis Baruah, J. Heard Mrs. U. Chakraborty, the learned Special Senior counsel appearing on behalf of the Railways and Ms. M. Sharma, the learned counsel appearing on behalf of the Respondent. 2. This is an appeal under Sec. 23 of the Railway Claims Tribunal Act, 1987 challenging the judgment and order dtd. 30/11/2011 passed by the Railway Claims Tribunal, Guwahati Bench, Guwahati, whereby an amount of Rs.6, 72, 720.00 along with Rs.7, 402.00 and Rs.2, 000.00 was awarded in favour of the claimant/ the respondent herein and there was a further direction to the Respondent Railways to pay the decreetal amount to the Applicant within 2 months from the date of the order failing which the amount shall carry simple interest @12% per annum till realization. 3. For the purpose of convenience the parties herein are referred to in the same status as they stood before the Railways claims Tribunal. It is the case of the claimant that there was a short delivery of 6046 Bags of salt out of a consignment containing 58, 170 Bags booked in safe, sound and secured condition from Halvad (HVD) to DIKOM under Invoice/R.R.Nos.01/212002762 and 02/212002763 dtd. 16/5/2010 and the said consignment was made over to the Railway Administration for its safe carriage and delivery to the consignee in good and sound condition. In support of the claim, the claimant has produced the receipt copy of the notice, photo copy of the R.R.s and the photo copy of Assessment Delivery Certificates (for shortage) issued by S.S./DKM/N.F. Railway. 4. The Respondent Railways filed their written statement wherein various preliminary objections were taken as regards the maintainability of the claim proceedings. Apart from that it was mentioned that the consignment was booked at the sender forwarding station under the remarks in the Railway Receipt "said to contain, train load condition complied with, loaded direct from truck/cart to wagon, loading not supervised the Railway staff, packing condition outer not complaint OR". It was also the stand taken that the subject consignment was booked at owners risk in terms with Sec. 97 of the Railways Act, 1989 and as such the Respondent was not liable for any compensation. 5. It was also the stand taken that the subject consignment was booked at owners risk in terms with Sec. 97 of the Railways Act, 1989 and as such the Respondent was not liable for any compensation. 5. Further to that in Paragraph No.7 of the written statement it was mentioned that 5 wagons (Wagon No. (i) NRBCN-105049, (ii) SRBCN-45995, (iii) WRBCN-973493, (iv) WRBCN-5177 and (v) SRBCN-47259) of the subject consignment arrived at the destination, DIKOM with seal intact condition without any interference enroute. It was also submitted that 829 Bags were found short at the destination station from the aforesaid five sealed intact wagons and as such the Respondent is not liable for the alleged shortage. On the basis of the said pleadings, the Tribunal below framed six issues which were: (i) Is the case maintainable ? (ii) Was the Railway guilty of gross negligence in carriage of the disputed consignment ? (iii) Was there any shortage and damage in the disputed consignment in transit ? (iv) Did the Applicant suffer any loss or damage and if so, to what extent ? (v) Is the Applicant entitled to recover the amount as claimed ? (vi) To what other relief, if any, is the Applicant entitled ? 6. It appears on record that the claimant in support of his case had submitted the copies of the 2 R.R.s, copy of the survey report dtd. 20/5/2010, the original letter dtd. 25/5/2010 to CGS/Dikom, the original claim letter dtd. 3/7/2010 and service copy with three postal registration receipts in one page, two original Railway letter dtd. 9/7/2010, original DCM, Tinsukia letter dtd. 12/11/2010 with unloading particulars in two pages, chamber rate letter dtd. 1/7/2010, reminder letter dt. 22/11/2010. 7. On the other hand, the Railways had placed on record (i) the Railway Receipts in question, (ii) Damage and Deficiency Message, (iii) Unloading Tally Book and (iv) Forwarding Note. 8. The Tribunal took up all the six issues together and came to a finding that the Railways cannot disown the Report of Assessment made by them in respect of shortage for the 3 wagons i.e. SRBCN-45995, WRBCN-973493 and WRBCN5177. Under such circumstance, it was held by the Tribunal that the claimant was entitled to get compensation for the shortage arising out of the aforesaid consignments. Under such circumstance, it was held by the Tribunal that the claimant was entitled to get compensation for the shortage arising out of the aforesaid consignments. Further to that, the Tribunal also came to a finding that the Railways have received full freight charges on the booked consignment and it was the duty of the Railway staff to verify the booked consignment whether the booked consignment are loaded in accordance with the forwarding note. However, the Respondent Railways have miserably failed to prove by placing any cogent evidence that the suit consignment was loaded short. It was further observed that it was the duty of the Respondent Railways to disclose as to how the consignment was dealt with when it was in their custody and came to a finding that there was sheer negligence on the part of the Respondent Railways as because no satisfactory explanation has been given by the Railways in respect of the short delivery of the suit consignment. It was further held that the applicant was entitled to get compensation for 6046 Bags - 440 Bags = 5606 Bags in the case. 9. Further to that the Tribunal took into consideration that the claimant was able to prove the rate of each Bag at Rs.120.00 per Bag and accordingly, came to an opinion that the compensation payable to the claimant would be Rs.6, 72, 720.00. Alongwith the said amount the Railway Claims Tribunal also was of the opinion that the Application Fee Rs.7, 402.00 and Rs.2, 000.00 as Advocate's Fee should also be paid to the claimant. It is against the said judgment and order dtd. 30/11/2011 that the instant appeal has been filed before this Court. 10. Mrs. Alongwith the said amount the Railway Claims Tribunal also was of the opinion that the Application Fee Rs.7, 402.00 and Rs.2, 000.00 as Advocate's Fee should also be paid to the claimant. It is against the said judgment and order dtd. 30/11/2011 that the instant appeal has been filed before this Court. 10. Mrs. U. Chakraborty, the learned counsel appearing on behalf of the Appellant submits that from a perusal of the Railway Receipt , it would be clearly seen that there is a clear remark in the said Railway Receipt to the effect that the loading not supervised by the Railway staff and as such the proviso to Sec. 65 of the Railways Act, 1989 shall be applicable wherein it is stipulated that in case the consignment in wagon load or train load and the weight and number of packages are not checked by the Railway servant authorized in that behalf and a statement to that effect is recorded in such Railway Receipt by him, the burden of proving the weight or as the case may be, the number of packages stated therein shall lie on the consignor, the consignee or the endorsee. The learned counsel for the Appellant further submits that it is not known on what basis the Railway Claims Tribunal have come to a finding that there was an actual shortage of 5606 Bags that too when there has been no evidence brought on record by the claimant by producing invoices as regards the said consignment in question. The learned counsel for the appellant further submits that the Assessment Delivery Certificate is not a part of the instant claim proceedings, and it is not known on what basis did the Railway Claims Tribunal take note of the said Assessment Delivery Certificate. Further to that, in absence of loading supervision made by the Railway staff, none of the Railway authorities at the destination station could have certified as regards the shortage of the Salt Bags in question. 11. On the other hand Ms. M. Sharma, the learned counsel appearing behalf of the Respondent submits that from the forwarding note which included the details of the loading, it would be seen how many Bags in each wagon has been loaded. 11. On the other hand Ms. M. Sharma, the learned counsel appearing behalf of the Respondent submits that from the forwarding note which included the details of the loading, it would be seen how many Bags in each wagon has been loaded. The learned counsel for the Respondent further submits that from the unloading and delivery report of Dikom given by the Divisional Commercial Manager, N.F. Railway, it would show that in various wagons, the seal condition was not intact as well as the rivet was not there. She further submitted that prior to loading at the Halvad Railway Station, the assessors namely Gupta and Associate (Assessors) Private Ltd. had made an assessment and found that 58, 170 Bags were loaded and to that effect, the Survey Report dtd. 20/5/2010 was placed on record before the Railway Claims Tribunal to show that there were 58, 170 Bags loaded in the wagons in question. 12. The learned counsel for the Respondent further submitted that the claimants were in possession of the invoices. However, taking into account that the Railway Claims Tribunal was satisfied on the basis of the documents on record, the claimant did not place on record the invoices which would have also shown that 58, 170 Bags were transported from Halvad Station on route to Dikom. 13. I have heard the learned counsel for the parties and also have perused the materials on record. The Railway Receipt in question categorically shows that the remark therein that goods in question were loaded directly from the truck/cart to the wagons and the loading was not supervised by the Railway staff. Under such circumstances, proviso to Sec. 65 of the Railways Act, 1989 , the burden lies upon the consignor, consignee or the endorsee to prove the number of packages stated in the Railway Receipt. 14. Now, let this Court take into consideration the materials on record to ascertain as to whether the claimant was able to discharge their burden of proving that there was a loss of 5606 Bags. In support of the same, the claimant has placed on record the survey report dtd. 20/5/2010 by the Surveyors Gupta and Associate (Assessors) Private Ltd. to show that 58, 170 Bags were loaded in the various wagons. In support of the same, the claimant has placed on record the survey report dtd. 20/5/2010 by the Surveyors Gupta and Associate (Assessors) Private Ltd. to show that 58, 170 Bags were loaded in the various wagons. On the basis of the said survey report as well as the unloading and Delivery Report submitted signed by the Divisional Commercial Manager, N.F. Railway, the claimant sought to prove that there was actually shortage of 5606 Bags. However, if this Court peruses the impugned judgment, it would appear that the Tribunal below on the basis of that seals in respect to certain some of the wagons were not intact and had come to a finding that it was the responsibility of the Railways to prove by way of cogent evidence that the suit consignment was loaded short. This is on the face of it is contrary to the provisions of the proviso to Sec. 65 of the Railways Act, 1986. Taking into consideration that the Railway Receipt clearly shows that the number of packages was not checked by the Railways servant authorised in that behalf and a statement was made to that effect in the Railway Receipt itself, the finding of the Tribunal below, without any evidence on record that there was an actual 5606 Bags on the face it, is in violation to the proviso to Sec. 65 of the Railways Act, 1989. Further to that the Survey Report dt. 20/5/2010 much after the loading was complete, which cannot be taken into consideration without any substantive evidence such as invoices etc. 15. Considering the said, the impugned judgment dtd. 30/11/2011 is set aside and quashed. Before concluding this Court also finds it relevant to take note of the submission of Ms. M. Sharma, the learned counsel to the effect that as the Railway Claims Tribunal was satisfied on the basis of the Survey Report as well as the Unloading Tally Book, the claimant did not produce the invoices which would have otherwise also shown that there were 58, 170 Bags loaded in the wagons in question. The learned counsel for the Respondent further submits that as the judgment was passed in her favour, the question of her filing an application to produce additional evidence before this Court could not have arisen. 16. The learned counsel for the Respondent further submits that as the judgment was passed in her favour, the question of her filing an application to produce additional evidence before this Court could not have arisen. 16. Taking into consideration that the Railway Claims Tribunal have decided the said dispute without taking into consideration Sec. 65 of the Act of 1989 and also the submission made by the learned counsel for the Respondent to the effect that the invoices in respect to the Bags in question would clearly show that 58, 170 Bags of Salt were loaded in the wagons in question, this Court is of the opinion that the interest of justice would be met, if the matter is remanded back before the Railway Claims Tribunal, Guwahati thereby affording an opportunity to the claimants to produce by way of evidence, invoices and other documents which would show that 58, 170 Bags were loaded in the wagons in question. 17. In view of the above, this Court therefore disposes of the instant appeal thereby remanding the matter back to the Railway Claims Tribunal, Guwahati. The Railway Claims Tribunal, Guwahati shall dispose of the said claim proceedings as expeditiously as possible taking into account that the said claim proceedings is of the year 2010. The Respondent who is the claimant before the Railway Claims Tribunal shall be at liberty to file appropriate application before the Railway Claims Tribunal to adduce additional evidence to prove that 58, 170 Bags were loaded in the wagons in question. It is made clear that the Tribunal below while deciding the claim proceedings shall keep in mind the provisions of Sec. 65 of the Act of 1989 as well as the observations made hereinabove. 18. With above observations and directions, the instant Appeal stands disposed of. 19. Send the LCR to the Court below. 20. The parties are directed to appear before the Railway Claims Tribunal on 6/9/2022.