Delhi High Court
Hindustan Petroleum Corpn. Ltd. vs Union Of India (Uoi) on 24 November, 2004
Author: R Sodhi
Bench: R Sodhi
JUDGMENT
R.S. Sodhi, J.
1. This appeal is directed against judgment dated 7.1.2003 of the Railway Claim Tribunal, Principal Bench, Delhi, (for short 'Tribunal) in Case No. OC 37/1998 dismissing the claim of the appellant herein.
2. The facts of the case, as noted by the Tribunal, are as under :
''That the applicant corpn. on 23.01.1995 dispatched Motor Spirit (93 Octane) measuring 27200 ltrs. in tank wagon No. CR 46561 from Koyali to Shakurbasti under Invoice No. 327 and Railway Receipt No. 018137. The loading dip was 215.0 cms. It is further aerred that said tank wagon was received at Shakurbasti, Delhi without top and bottom seals. It was leaking from the bottom valve. Joint Dip was conducted on 08.02.1995 in the presence of the representatives of both the parties. The dip was found to be 155.6 cms. equivalent to 19816 ltrs. and thus there was shortage of 7384 ltrs. of MS. Accordingly, notice dated 18.04.1995 was served upon the respondent but the claim was not settled. Hence this application for recovery of Rs. 1,19,271/- as compensation.
The respondent has contested the application. It has been averred that the application has not been signed, verified and instituted by a duly authorised person and that the claim is excessive. The respondent also challenged the validity of the notice and denied liability on various counts. It is stated that a 'said to contain' RR was issued with remarks'' loading in IOC siding. Loading was not supervised'' and that ''sender's weight was accepted''. The respondent further submits that the wagon was placed at the siding of the applicant intact condition without any interference and delay. There was no leakage at the time of placement and that the Joint Dip Certificate was not admission of liability and was issued without prejudice. The respondent has this denied nay negligence on its part and justified Repudiation of the claim preferred by the applicant.
Based on these pleadings following issues have been settled.
1. Whether the claim application has not been signed, verified and filed by a competent person, as contended?
2. Whether a said to contain RR was issued with the remarks 'sender's weight accepted and loading in the applicant's private siding, if so, the effects thereof?
3. Whether a Joint Dip was made, if so, the effect thereof?
4. Was there no cause of action for the application to file this claim application, as contended?
5. To what relief the applicant is entitled.''
3.Counsel for the appellant contends that the presumption drawn by the Tribunal under Section 114(e)(f) of the Evidence Act cannot be taken recourse to. Learned counsel for the respondent on the other hand, contends that the Tribunal has evaluated the material before it to arrive at the reasoned judgment which ought not be interfered with.
4. I have hard learned counsel for the parties and gone through the material on record. The facts of the case are not in dispute and it is admitted that the placement of Wagon on 08.02.1995 at 6.00 hours was checked on the same day at about 14.00 hours when shortfall in the consignment was noticed by the Joint Inspection dip. It was found at that time that the top and bottom seals were missing, main hole cover was open, nut and bolts were missing and the consignment was leaking from the bottom valve.
5. To assume that the wagon had been placed at the siding with seals, nuts and bolts intact by taking recourse to Section 114(e)(f) at the Evidence Act is to say the least is mis-application of the provisions of the Evidence Act.
6. No register kept in the normal course was produced to show that the seals were intact. There is nothing on record to show the manner in which the consignment was handed-over to the appellant. Section 114 of the Evidence Act could only be pressed into service if any of the documents being produced and relied upon, which is not the case. The reliance placed by the Tribunal on the presumption to be drawn under Section 114(e)(f) of the Evidence Act is misplaced. Section 94 sub-Section 2 of the Railway Act is categoric in requiring the Railways to inform the owner in writing after the wagon containing the consignment had been placed at the specified point. It is in this writing that the condition of wagon, seals, nuts and bolts etc. should finmention. In the present case, presumption under Section 114(e)(f) of the Evidence Act in spite of non-compliance of statutory provision cannot be claimed. The appellant by taking dip measurement in presence of Railway official, which is depicted in he joint dip certificate, has proved the shortfall in consignment and have thereby proved their claim. In that view of the matter, the order under challenge is set aside and the appeal allowed. The Railways are liable to pay a sum of Rs. 1,19,271/- to the appellant together with costs quantified at Rs. 10,000/-
