Bombay High Court
Union Of India Thr.G.M. Central ... vs Hindustan Petroleum Corpn. Ltd on 21 April, 2016
Bench: A.S. Chandurkar
fa379.07.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.379 OF 2007
APPELLANT: Union of India Through the General
Manager, Central Railway, Mumbai
Original
CST.
Respondent on
R.A.
-VERSUS-
RESPONDENTS: Hindustan Petroleum Corporation Ltd.
ig Government of India Enterprise, having
Original
its registered office at 17, Jamshedji
Applicant on R.A.
Tata Road, Bombay - 400020. Through
its Senior Regional Manager, LPG
Bottling Plant, Khapri, Nagpur.
Shri N. P. Lambat, Advocate for the appellant.
Shri P. D. Meghe, Advocate with Ms. A. Singh Advocate for the
respondent.
CORAM: A.S. CHANDURKAR, J.
DATED: 21
st APRIL, 2016.
ORAL JUDGMENT :
1. The present appeal filed under Section 23 of the
Railway Claims Tribunal Act, 1987 takes exception to the
judgment of the Railway Claims Tribunal, Nagpur dated
20-12-2002. By this judgment the appellant has been held liable
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to pay damages of Rs.75,660/- with 6% interest.
2. It is the case of the respondent - Corporation that it
had booked a consignment of Liquid Petroleum Gas (LPG) to the
extent of 13.220 MT as per railway receipt dated 19-12-1986. The
same was to be transported from Trombay to Khapri. On arrival of
the consignment at Khapri siding on 24-12-1986, the respondent
found that there was a short delivery. Hence, a joint inspection
was held on 24-12-1986. The appellant by communication dated
28-4-1987 disputed the claim of the respondent. Thereafter, the
present claim came to be filed.
3. In the reply filed, the claim was opposed on the
ground that the consignment was unloaded at the private siding of
the respondent. It was denied that there was any short delivery.
It was pleaded that in absence of any leakage being found, the
claim was not liable to be granted.
4. On behalf of the respondent, one Shri S. P. Donadkar,
Senor Regional Manager was examined. He deposed that Khapri
Siding was provided exclusively by the railways to the respondent.
He admitted that he was not present at the time of loading of the
wagon. No evidence was led on behalf of the appellant. Thereafter
by the impugned judgment the claim made by the respondent
came to be allowed.
fa379.07.odt 3/6
5. Shri N. P. Lambat, the learned Counsel for the
appellant submitted that the Tribunal erred in holding the
appellant liable for the short delivery. According to him, the place
where the consignment was loaded and unloaded belonged to the
respondent and it was a private siding. Relying upon the
provisions of Section 76C of the Railways Act, 1890, it was
submitted that merely on the basis of the shortage certificate, the
claim could not have been allowed. There was no other evidence
led by the respondent and on the contrary, it had been found that
the seals of the wagon in question were intact. The learned
Counsel placed reliance on the following judgments:
(1) Union of India v. Industrial Development Corporation
of Orissa Limited AIR 1995 Orissa 298.
(2) Union of India Versus I.B.P. Co. Ltd. III (2005) ACC
(3) Judgment of High Court of Judicature at Bombay
Bench at Nagpur in First Appeal no.347 of 1993 (The
Maharashtra State Electricity Board vs. Union of
India).
6. Shri P. D. Meghe, learned Counsel for the respondent
supported the impugned judgment. It was submitted that the
appellant was not prevented from remaining present when the
wagon was loaded and unloaded. As the freight for the entire
consignment had been accepted, it was not open for the appellant
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to dispute its liability. It was, therefore, submitted that there was
no reason to interfere with the impugned judgment.
7. The following point arises for consideration:
Whether the Claims Tribunal was justified in holding
the appellant liable for the short delivery?
8. In support of the claim for compensation, the
respondent filed on record affidavit of Shri S. P. Donadkar, Senior
Regional Manager at Exhibit-A-42. This witness has stated that the
consignment in question was booked on 19-12-1986 and after its
arrival at Khapri, it was noticed that only 600 MM dead stock was
received. He referred to the shortage certificate dated 19-12-1986
as well as the joint shortage certificate dated 24-12-1986. In his
cross-examination, this witness admitted that Khapri Siding where
the consignment was unloaded was a private siding. He stated that
he was not present either at the time of loading or unloading of
the wagon.
The documents placed on record are the shortage
certificate dated 19-12-1986 and the joint dip inspection dated
24-12-1986. In this joint inspection, it has been noted that the top
seals of the wagon were intact and the packet labels were also
intact. It was further noticed that no leakage was found.
9. The Claims Tribunal in the impugned judgment has
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proceeded on the basis that in the written statement, a case of
mere denial had been pleaded. It was then observed that the
railway staff had not been prevented from either supervising or
checking the wagon in question. On the ground that the freight
had been charged, it was held that the appellant was negligent
and, therefore, the responsible for the loss of 13.220 MT of LPG.
10. In the First Appeal No.347/1993 (Maharashtra State
Electricity Board Vs. Union of India) decided on 8-12-2011, a some
what identical situation was considered. The loading and
unloading therein was done at a private siding. The seals of the
wagon in question were found to be intact. Similarly, no leakage
was found. On that basis, it was held that as the seals were found
intact and there was no evidence of any leakage, the liability on
the railways could not be fastened. Reference was also made to the
provisions of Section 76C of the Railways Act, 1890. In Union of
India Vs. Industrial Development Corporation of Orissa Limited AIR
1995 Orissa 298, it was held that merely on the basis of a shortage
certificate issued by the railways, the claim for damages cannot be
allowed. These certificates cannot be treated as admission of actual
shortage and the loss of the consignment has to be proved. In
2005(III) ACC 181, the Union of India Vs. I.B.P. Company Limited,
similar view has been reiterated with regard to loading and
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unloading at a private siding.
11. Considering the aforesaid position, if the evidence on
record is perused, it is clear that loading and unloading was done
at a private siding. The claim for compensation is based on the
shortage certificate dated 19-12-1986. However, the joint dip
inspection dated 24-12-1986 indicates the seals to be intact and
absence of any leakage. In the absence of any other evidence to
indicate short delivery of the consignment, the liability on the
railways cannot be fixed merely on the basis of the shortage
certificate. The reasons assigned by the Claims Tribunal while
allowing the claim are not tenable in law. The impugned judgment
is, therefore, liable to be set aside.
12. Hence, for aforesaid reasons, the judgment of the
Railway Claims Tribunal, Nagpur dated 20-12-2002 in the claim
application filed by the respondent is set aside. The first appeal is
allowed with no order as to costs. The appellant would be entitled
to receive the amount deposited along with accrued interest.
JUDGE
//MULEY//
