Union Of India (Uoi) vs Hindustan Petroleum Corporation ...
2004 Latest Caselaw 1211 Del

JUDGMENT

R.S. Sodhi, J.

1. CM 13288/2004 :

This is an application for early hearing. The same is allowed and disposed of. The matter is taken up for hearing today. The date already fixed in the matter, that is, 1st November, 2004 stands cancelled.

2. CM 699/2003 (for condensation of delay) Delay is condoned. Application is allowed and disposed of.

3. FAO 326/2003 :

This appeal is directed against the judgment dated 28th January, 2003, of the Railway Claims Tribunal (Principal Bench), Delhi (for short ''the Tribunal'') in Case No. OC 54/2001, whereby the learned Tribunal has awarded a sum of Rs. 4,13,582/- together with interest @9% per annum from the date of the order till realisation.

4. The brief facts of this case, as has been noted by the Tribunal, are as under :

"The applicant is a company registered under the Companies Act. Shri M.S.Damle is the Chief Regional Manager of the company and has been duly authorized to institute the suit on behalf of the applicant company. On 12.1.1996, the applicant booked a consignment of motor spirit for carriage Ex Kandla to Shakurbasti, Delhi vide Railway Receipt No. 517424 dated 12.1.1996. The said consignment was loaded in tank wagons including the tank wagon No. WR 907164 which contained 67200 liters of motor spirit. On 7.1.96, the rake containing the said tank wagon arrived at the destination station with top and bottom seals missing. On request, a joint dip measurement was taken on 17.1.1996 by the representatives of the parties which revealed a shortage of 26482 litrs of motor spirit valued at Rs. 4,13,582/- as per DGSandD rates. According to the applicant, the said shortage occurred due to negligence and misconduct on the part of the railway administration. On 20th March, 1996, the applicant served the statutory notice on the respondent and followed it up by filing the present suit.

2. The respondent resisted the claim on the ground that the claim petition has not been signed, verified and instituted by the authorized person. It is alleged that the shortage had occurred on account of negligence of the applicant in not properly sealing the suit consignment and further, the suit consignment was booked on 'said to contain' and as such the Railway Administration is not liable to pay the damages as claimed by the applicant. It is also alleged that the Joint Dip Certificate (Ex.R2) date 17.1.96 was issued without prejudice. On these pleadings, the respondent has claimed protection under Sections 93(f), 94(2), 102 and 103 of the Railway Act (for short the Act).

3. On these pleadings following issues were framed and our findings are recorded against them for the reasons given hereunder:

1. Whether the application is liable to be rejected on the preliminary objections nos. 1 to 3 of the W.S.?

2. Whether the applicant is entitled to the amount claimed on the grounds stated in the application?

3.Relief."

5. Counsel for the appellant submits that the case of the Railways is squarely covered by Sections 93 and 94 of the Railways Act and that the Tribunal has not appreciated the provisions of the aforesaid Sections.

6. Heard counsel for the appellant and have gone through the judgment under challenge. To appreciate the arguments of counsel for the appellant, it is essential to quote Section 94 sub-Section 2 thereof, which reads as under :

"(2) Where any consignment is required to be delivered by a railway administration at a siding not belonging to a railway administration, the railway administration shall not be responsible for any loss, destruction, damage or deterioration or non-delivery of such consignment from whatever cause arising after the wagon containing the consignment has been placed at the specified point of interchange of wagons between the railway and the siding and the owner of the siding has been informed in writing accordingly by a railway servant authorized in this behalf."

7. A bare reading of the Section 94(2) of the Act makes it clear that the Railways is required to deliver the consignment at the siding not belonging to the Railway administration and when delivered at the specific spot is to inform the owner in writing. There is nothing on record to show that the Railways informed the respondent that the goods have been delivered intact. Before Railways can take protection under Sections 93 and 94 of the Act, it becomes incumbent to lead evidence in support of the requirements that would make available the protection sought for. In the present case, the evidence on record is woefully inadequate to enable the Railways to invoke protection under Sections 93 and/or 94 of the Railways Act. The evidence has been discussed length by the Tribunal which cannot be faulted with. Merely saying that the goods delivered at private sidings are not the responsibility of the Railways is of no consequence.

8. I have gone through the evidence on record and heard counsel at length. He has not been able to make out any point as to convince me to interfere in the judgment of the Tribunal.

9. Before parting, I must put on record the displeasure of this court and bring to the notice of the parties that in matters where Government and Government bodies are involved, the same ought to be resolved at their own level.

10. As discussed above, I find no merit in the appeal. FAO 326/2003 is accordingly dismissed.