Union Of India (Uoi) vs The Indian Iron And Steel Co. Ltd.
2007 Latest Caselaw 1256 Del

JUDGMENT

J.M. Malik, J.

1. Vide order dated 18th February, 1999, the Railway Claims Tribunal, Delhi, allowed the claim application of the respondent, holding that there is a short delivery of goods delivered by the Railway Authority and ordered that a decree in the sum of Rs. 46,510 with interest @ 10% per annum from the date of the claim application dated 7th May, 1990 till the date of payment with costs and advocate fee be prepared. Aggrieved by that order, the appellant/Union of India has preferred this appeal.

2. The learned Counsel for the appellant has made the following two short submissions. The principal argument urged by him was that the consignment was loaded by the respondent at its private siding without any supervision by the railway staff. The railway receipt itself mentions BRH Wgd said to contain 120 pieces supplied. The learned Counsel for the appellant opined that under these circumstances the Railway Department is not responsible for any shortage because it is quite possible that the short supply was supplied to the railways at the initial stage itself.

3. This argument is lame of strength. There is a stamp affixed by the Railway Department itself which, although, is not very legible, yet the following words can be read, loaded by a consignor at their siding. Contents xxxx (illegible) and checked by the Railways and to be unloaded by the consignee weighment witnessed by railway staff.

4. It is, therefore, clear that the Railway Department had checked and witnessed the weighment of the goods in dispute even if it was weighed at the private siding. Moreover, this is the responsibility of the Railway Department and nobody else to weigh the consignment in the presence of its officials and deliver the same quantity of goods to the consignor/consignee. It is pertinent to mention here that in this case the consignor and consignee was the respondent himself. The fault, if any, lies at the door of the appellant and it cannot get rid of its responsibility on frivolous grounds. It is clear that the Railway Department is terribly remiss in discharge of its duty. Consequently, this argument deserves no consideration.

5. The second submission made by counsel for the appellant was that the delivery was taken after 24 hours. The goods were received on 27th September, 1987 and the delivery was taken on 29th September, 1987. Counsel for the appellant admitted that it is not mentioned as to when the intimation was given to the respondent and at what time the goods were delivered. Therefore, it, appears that there was no delay on the part of the respondent to take back the goods. The appellant should have proved at what time the goods were received, at what time intimation was sent and at what time the goods were delivered. In absence of such evidence, by no stretch of imagination it can be said that any fault can be attributed on the part of the respondent. Even if a person does not collect the goods within 24 hours, does the responsibility of the railways come to an end. It may enhance the charges, but the liability to deliver the goods in the same quantity remains intact.

6. No other argument was urged before me. However, the record reveals that the respondent vide letter dated 27th September, 1987, which is proved on record as Ex.A3, had requested the Railway Department, on inspection it has been found that the binding wires of the individual bundles are cut open and the main chain holding the bundles are also open and appears that steel rods from the various bundles are missing. We anticipate great shortage in this wagon and therefore, request you to kindly get this wagon re-weighed before the delivery is taken by us. However, this request was turned down by the appellant. Thereafter, M/s K.D. Kohli and Company Private Limited was appointed as surveyor by the respondent. The surveyor vide its report Ex.AW4/1 came to the conclusion that there was net shortage of consignment to the tune of 8.910 Mts. The surveyor also got the photographs Ex.AW4/2 and Ex.AW4/3, which show that the wires were cut open and some rods appear to have been removed as there is a gap in the bundle. The impugned order also mentions, Further the surveyor report talks in details about the shortage, but the respondent would contend saying that the report is not impartial, that they were the panel surveyor and not independent and the rough note prepared by one Shri M.C. Gupta or K.L. Arora was not produced and the same was not exhibited. The applicant on the other hand has stated that in similar circumstances, this Tribunal in OA1-152/91 Tata Iron and Steel Co. v. U.O.I. have agreed with the applicant under the same type of circumstances and they have found the shortage to be true. The survey report and punchnama which was witnessed by one Shri C.P. Vijh will show that the facts talked to are genuine and not rebutted by any evidence by the respondent. The Forwarding Note also says the packing condition P40 was fulfillled. Hence, this issue is held in favor of the applicant.

The evidence adduced by the respondent remains unrebutted on the record. Under these circumstances the trial court correctly placed reliance on the surveyor's report. Moreover, it was not called into question before this court.

7. It is crystal clear that the above-said shortage occurred due to negligence and misconduct of the Railway Department or its employees. Such like lapses on the part of the Railway Department will certainly tarnish its image. It is painful and galling that instead of admitting the loss and negligence on its part, the appellant has preferred to file appeal against the impugned order, which appears to be flawless. It is difficult to fathom as to how the appellant can wash its hands of this responsibility?

8. In view of the above discussion, I find no merit in the appeal. FAO 338/1999 and CM2665/1999 are accordingly dismissed with costs. Advocate fees is fixed at Rs. 20,000/-. Trial court record along with a copy of this judgment be sent back forthwith.