Ram Kanwar Ram Niwas vs Union Of India (Uoi) (Through ...
2008 Latest Caselaw 190 Del

JUDGMENT

Pradeep Nandrajog, J.

1. This is an appeal filed under Section 23 of the Railway Claims Tribunal Act, 1987 against the order dated 5.5.95 passed by the learned Railway Claims Tribunal, Delhi.

2. The appellant M/s Ram Kanwar Ram Niwas filed a suit against the respondent claiming a compensation of Rs. 27,125/-.

3. The case set up by the appellant was that M/s Dhuliyan Trades entrusted a consignment comprising of 245 bags (each bag weighing 100 kgs) of Urad dal to the respondent for transport from Dhulianganga station to New Delhi. That the consignment was booked under invoice No. 4 railway receipt No. C 895604 dated 20.6.84 under the Railway Risk. That it is the 'endorsed consignee'/purchaser of the said consignment/goods. That at the time when the delivery of the consignment was taken from the respondent it was found that 40 bags were short-delivered and 57 bags were in damaged condition. That the shortage and damage took place due to gross negligence and misconduct of the employees of the respondent. That it called upon the respondent to make payment of the compensation for the loss and issued notice under Section 78B of the Indian Railways Act, 1890 and Section 80 of the Code of Civil Procedure for settlement of the claim. That since there was no response to the notice the suit is filed.

4. Respondent resisted the suit inter-alia contending that the original Railway receipt bears remarks said to contain meaning thereby that the loading of the consignment was done by the consignor and not supervised by the railways therefore it is not liable to pay any compensation for the alleged shortage of bags. That staff of the respondent has not supervised the actual quantity loaded into the wagon at the forwarding station. If any short delivery was found in the consignment at the time of the delivery, it is due to the short loading by the consignor. It was further stated that the short delivery certificate was issued on the request of the consignee, without prejudice, at the destination station only to place on record the actual quantity received by the destination station and it does not amount to admission of any liability that the shortage occurred due to its negligence in the carriage of the consignment.

5. However respondent admitted that there was a hole in the roof of the wagon in which consignment was loaded because of which water seeped into the wagon as a result of which 57 bags were damaged. It agreed to pay compensation in respect of damage caused to 57 bags.

6. In the replication appellant categorically pleaded that the consignment was not booked on said to contain basis and that the loading of the consignment in the wagon was done under the supervision of the staff of the respondent.

7. In support of the case set up by it, appellant examined one Mr. Kul Bushan as AW-1 who was a partner of the appellant firm. AW-1 tendered his examination-in-chief by way of an affidavit which is at page 15 of the record of the Railway Claims Tribunal. In the affidavit AW-1 deposed on the lines of the pleadings filed of the appellant.

8. Along with the affidavit AW-1 produced following documents:

---------=-------------------------------------------------------------------------------------------------------

S. No.     Description of Document              Exhibit No.  Page No.   Remarks
---------=-------------------------------------------------------------------------------------------------------
1.     in the record of Railway Claims Tribunal   Ex. A-4    Page 49  i)  Records short delivery of 40 bags.
       Assessment Report issued by Railway                            ii) Records 57 bags were damaged.
                                                                     iii) Records that there was
                                                                          a hole in the roof of the wagon.
                                                                      iv) Records that endorsement/records
                                                                         'said to contain' has been scored
                                                                          the railway receipt without
                                                                          off from there being any signature
                                                                          or stamp of railways.

2.     Counter foil of railway receipt
       No. C 895604 dated 20.6.84
                                                   Ex.A-3    Page 53   i) Records that consignment comprised
                                                                          of 245 bags.
                                                                      ii) Records that consignment was booked
                                                                          under railway risk.
                                                                     iii) An endorsement 'said to contain' was
                                                                          made on receipt but later scored off.

3.    Copy of TXR Certificate                    No exhibit  Page 55      Records that there was a hole in the
                                                                          roof of the wagon.

4.    Cash book, ledger book, sales book.        Ex.A-5,A-6  Page 75,     Records that a sum of Rs. 1,03,652.50
                                                 and A-7     77 and 79    was paid by the appellant to consignor
                                                 respect-    respect-     of the goods.
                                                 ively       ively.

5.    Forwarding Note                            Ex.A-2      Page 107     Does not contains endorsement 'said to
                                                                          contain'.

6.    Extract of delivery book in respect        No exhibit  Page 111     Records that the consignment comprised
      of goods shed                                                       of 245 bags.

7.    Counter Foil of Gate Pass                  Ex.A-9      Page 113     Records that the consignment comprised
                                                                          of 245 bags.


8.   Extract of Loading Book                     Ex.A-4      Page 125     Records that the consignment comprised
                                                                          of 245 bags.

---------=-------------------------------------------------------------------------------------------------------
 

9. It is relevant to note that all the documents produced by the appellant save and except documents Ex.A-5, Ex.A-6 and ExA-7 were admitted by the respondent.
 

10. On behalf of respondent one Mr. Vishno Singh Khanna was examined as RW-1. RW-1 was working as Chief Goods Clerk at the Tughlabad Station. He deposed that consignment in question was unloaded at New Delhi Railway Station under his supervision.

11. An affidavit 27.3.90 deposed by one Mr. Virendra Kumar who was working as Chief Goods Clerk, Northern Railway is found in the record of the Tribunal. Said affidavit is at page 27 of the record of the Tribunal and reads as under:

That Loading Book and Tally Book are one and the same thing. However loading book is used in case of wagon load consignment and Tally book is used in case of 'small' consignment.

12. On behalf of the respondent following documents were produced:

--------------------------------------------------------------------------------------------------

S. No.     Description of Document        Exhibit No.  Page No.                   Remarks
---------------------------------------------------------------------------------------------------

1.         DPCC Certificate               Ex.R-1       Page 52      i) Records short delivery of 40
                                                                       bags.
                                                                   ii) Records 57 bags were damaged.
                                                                  iii) Records that there was a hole
                                                                       in the roof of the wagon.

2.         Extract of Unloading Book.     No Exhibit   Page 131        Records that 205 bags were
                                                                       unloaded.

3.         Copy of an Invoice             No Exhibit   Page 121        Invoice contains endorsement
                                                                       'said to contain'.
---------=--------------------------------------------------  ---------------------------------------
 

13. After considering the case in its entirety the learned Tribunal has held that the respondent is not liable to pay compensation to the appellant in respect of short delivery of 40 bags. Relevant portion of the decision of the learned Tribunal reads as under:

8. Section 73 of the Indian Railways Act, 1890 provides for the general responsibility of the railway admn. as a carrier except from any of the causes specified therein. In the present case, in order to make the railway admn. liable for non-delivery of 40 bags of Urad, the applicants are bound to prove that their consignor owned 245 bags and that they were actually entrusted to the raiway admn. for carriage. The applicants are endorsed consignees. They have produced the Railway Receipt endorsed in their favor marked as Ex. A-3. Ex. A3 with the endorsement L/U goes to show that the consignor/consignee was in charge of loading and unloading. Further, Ex. A-3 with the endorsement SWA only shows that the weight of the goods given in the RR was not accepted by the railway admn. The next relevant endorsement in Ex. A is the endorsement with regard to the use of the words S/C meaning 'said-to-contain' the number of bags delivered for carriage. A careful examination of Ex.A3 goes to show that certain words initially written in Ex.A-3 in the column No. and Description are subsequently scored. Shri Bhatnagar, learned Counsel for the respondent contended that Ex. A3 was issued originally with the endorsement S/C and the said endorsement S/C was scored subsequently after the issue of RR by the party interested in doing the same. On the other hand, Sh. R.C. Gupta, learned Counsel for the applicant submitted that even assuming that the endorsement S/C in Ex. A-3 is scored, it is possible that the Booking Clerk even at the time of preparing Ex.A3 could have scored the endorsement in the usual course. Therefore, according to learned Counsel for the applicant, it must be taken that there is no endorsement in Ex. A-3 containing the letters S/C meaning 'said-to- contain' qualifying the statement regarding the number of bags delivered for carriage. We are unable to accept the above contention of Shri R.C. Gupta. If really, the Booking Clerk had scored the endorsement S/C in Ex. A-3 immediately after making the same, such scoring should contain the signature of the person who scored endorsement S/C and also the Station stamp. The scoring is not attested by any person. Further, The respondent has produced a copy of the invoice certified to be true, found at page 87 of the case records, which clearly goes to show that the endorsement to the effect S/C meaning that the consignment was said to contain 245 bags was actually there in the Railway Receipt and not scored as found in Ex.A3. The necessary inference which flows from this is that Ex. A-3 originally contained the endorsement S/C and that the said endorsement was subsequently scored by the party who is interested in doing so after the RR was issued to him. There is yet another clinching piece of evidence namely Ex. A-4 which probablizes to case of the respondent that Ex. A-3 contained the endorsement S/C and that the scoring of the said endorsement in Ex. A-3 was done subsequently. Ex.A-4 is the assessment report signed by the representatives of the applicant and the respondent. The relevant portion of Ex.A-4 reads thus:

Direct loading. Bags old used and single. Resewn Contents dropping wagon WT selected by sender. It was observed that S/C signifying 'said to contain' was given by later on scored out in ink without signature or station stamp.

9. On the basis of the materials available on record, we have no hesitation that RR, Ex. A-3 issued to the consignor in this case is qualified with the statement that the wagon was said to contain 245 bags of Urad.

10. There could be no presumption that 245 bags of Urad were put in the wagons for carriage in as much as the railway admn. did not accept that 245 bags were loaded and the RR only contains the endorsement 'said to contain' 245 bags. As already stated above, in order to make the respondent liable for the loss of 40 bags the owner has to prove that 245 bags of Urad were put on rails. They also have to prove by letting in evidence as to how and when the consignor acquired 245 bags of Urad and the price paid for the same and the exact quantity the consignor loaded in the wagon....

11. The consignor has not been examined in this case as a witness. The applicants have not let in any evidence to prove that the consignor owned 245 bags of Urad by producing consignor's purchase bills. AW1 has admitted in his evidence that he was no;t present at the time of loading. The applicant has not examined any witness to prove that 245 bags of Urad were actually loaded in the wagon.

x x x x x

15. n view of the legal and factual position discussed above, we have no hesitation in accepting the contention of the learned Counsel for the respondent that even assuming that 40 bags of Urad were stolen from the wagon due to negligence or carelessness on the part of the respondent, in order to make railway admn. liable for short-delivery, the applicant would have to prove that 245 bags of Urad were put on rails and that the applicant has not proved by acceptable evidence that their consignor owned 245 bags of Urad and delivered the same to the railway admn. for carriage. The applicant has also not established that the goods in dispute were loaded under the supervision of the railway staff. In these circumstances, we hold that the applicants are not entitled to any relief in respect of said 40 bags on the ground or short- delivery....

14. In regard to damaged 57 bags learned Tribunal has directed the respondent to pay compensation in sum of Rs. 7054/- to the appellant.

15. In these circumstances appellant has filed the present appeal under Section 23 of the Railway Claims Tribunal Act challenging the decision in so far it has held that the respondent is not liable to pay compensation to the appellant in respect of short delivery of 40 bags.

16. The dispute in the present case is two-fold:- i) Whether the consignment in question was booked on said to contain basis ii) If yes, effect thereof

17. The stand of the appellant was that the consignment was not booked on said to contain basis and that the booking clerk wrongly made an endorsement said to contain on the railway receipt and after realizing the error scored off the same. Whereas respondent contended that the endorsement said to contain on the railway receipt was not scored off by it's staff but by an interested party.

18. From an analysis of the decision of the Tribunal contents whereof has been noted in para 13 above it is clear that while holding that the railway receipt contains endorsement said to contain two documents have found favor with the Tribunal:- i) Assessment Report Ex.A-4 and ii) Copy of an invoice which is at page 121 of the record of the Tribunal.

19. Assessment Report Ex.A-4 has been prepared by an official of the Railway. The opinion has been expressed in the report by the official by merely perusing the railway receipt of the appellant i.e. Ex.A-3. The official has not opined on the basis of office copy of the railway receipt. It thus cannot be said that Assessment Report Ex.A-4 establishes that endorsement said to contain was scored off by an interested party.

20. Invoice which is at page 121 of the record of the Tribunal is a photocopied document. The said document has not been admitted by the appellant. No evidence has been led by the respondent to establish that the said invoice was a photocopy of the original invoice issued by the Railway in respect of the consignment in question. In such circumstances reliance could not have been placed upon the said invoice.

21. The best evidence by means of which respondent could have proved that endorsement said to contain on the railway receipt was scored by an interested party and not by its staff is the office copy of the railway receipt Ex.A-3.

22. The office copy of the railway receipt Ex.A-3 has not been produced by the respondent. No reasons for its non-production is forthcoming.

23. In the decision reported as Sriram Industrial Enterprises Ltd v. Mahak Singh and Ors. case of the respondents was that although they had worked continuously from the date of their appointment for more that 240 days in a calendar year, appellant had illegally retrenched them from service in violation of the provisions of Section 6N of the UP Industrial Disputes Act, 1947. The dispute relating to retrenchment of the respondents was referred by the State Government to the Industrial Disputes Tribunal under Section 4K of the Act to determine as to whether the termination of the services of the respondents by the appellant was just and/or illegal. Appellant contended that the services of the respondents were never terminated since none of them had worked for 240 days in the last calendar 12 months immediately preceding alleged date of termination. Respondents requested the appellant to produce certain documents in its custody namely Attendance Register, Payment of Bonus Register and various other documents relating to the engagement of the respondents as workmen under it. Appellant failed to produce afore-noted documents. The Tribunal did not lay any importance to the non-production of the documents asked for on the ground that the petitioner did not keep such record relating to the temporary hands and relied on the documents that had been produced to come to a finding that the workmen had not put in 240 days of service in a calendar year preceding the termination of their services. Respondents assailed the awards by way of filing writ petitions in the High Court. Drawing an adverse inference against the petitioner herein for non- production of the documents in its possession and holding that the petitioner had failed to discharge the onus and disprove the respondent's claim, the High Court held that under the circumstances the Tribunal should have drawn an adverse presumption under Section 114 Illustration (g) of the Indian Evidence Act, 1872 against the petitioner. Taking further note of the expression ``continuous service'` under Section 2(g) of the U.P. Act, the High Court found that the termination of service of the workmen was in violation of Section 6N of the aforesaid Act. Aggrieved by the decision of the High Court appellant filed special leave petition before the Supreme Court and contended that the High Court was wrong in drawing an adverse inference against them. After considering the case in its entirety Supreme Court held that best evidence having been withheld by the appellant the High Court was entitled to draw such adverse inference against them.

24. In the decisions reported as Iddar v. Aabida and Ors. and Rama Paswan and Ors. v. State of Jharkhand 2007 Cri LJ 2750 the Supreme Court has held that in weighing evidence, the Court can take note of the fact that the best available evidence has not been given and can draw an adverse inference.

25. The fact that the respondent has not produced office copy of the railway receipt Ex.A-4 entitles this court to draw an adverse inference against the respondent.

26. Another important piece of evidence in this regards is forwarding note Ex.A-2.

27. Forwarding note Ex.A-2 does not bears any endorsement said to contain.

28. Noting the provisions relating to forwarding note and railway receipt the Rajasthan High Court in the decision reported as Union of India v. Roop Narayan and Ors. (1997)1 WLN 339 has held that the forwarding note is a primary evidence and railway receipt is secondary evidence for the reason railway receipt is prepared on the basis of forwarding note and not otherwise.

29. The fact that the forwarding note Ex.A-2 does not contains endorsement said to contain coupled with the fact that the office copy of the railway receipt Ex.A-3 was not produced by the respondent gives credence to the stand of the appellant that the consignment in question was not booked on said to contain basis and that the endorsement said to contain on the railway receipt Ex.A-3 was scored off by an official of the respondent.

30. Assuming that the consignment in question was booked on said to contain basis it would be advisable to consider the evidence on said aspect.

31. Learned Counsel for the respondent contended that in case where consignment is booked on said to contain basis and loading is not supervised by the staff of the railways then the railways is not liable to pay compensation on account of short delivery.

32. In the decision reported as AIR 1956 Mad 176 Union of India v. S. P.L. Lekhu Reddiar it was held that where goods were loaded in the wagon by the sender and not by the railway servants and the information given by the sender is accepted as correct for the purpose of charging freight and receipt is granted and at the destination station, shortage is detected, it is for the plaintiff to establish as to what actually were the goods delivered to the railway for carriage at the forwarding station.

33. In the decision reported as South Eastern Railway v. Epari Satyanarayana it was held that the railway receipt conveys no admission by the Railway Administration that the weight of the consignment as shown in the receipt or the description of goods as furnished by the consignor is correct. In the absence of evidence of actual booking of the goods as shown in the railway receipt, the railway is not liable for short delivery where goods are received in sound and intact condition. It is for the consignors or the consignees to adduce evidence as to the actual booking of the goods as these facts are within their special knowledge.

34. In the decision reported as of India v. Chotelal Shewnath Rai it has been held that where there is no evidence to prove the actual weight of the goods loaded in the wagon and the loading had been done at the dispatching station by the consignor, the Railway Administration is not liable for short delivery detected at the destination. From the mere mention of a particular weight in the railway receipt and the forwarding note for the purpose of calculating the freight charge, no admission on the part of the railway as to the correctness of the weight of the goods loaded can be made out to fix up the liability.

35. In the decision reported as Orient Paper Mills Ltd. v. Union of India a Division Bench of Orissa High Court has held that in a suit for damages for loss of goods against the Railway Administration, the onus lies on the plaintiff to establish the actual loading of the goods for the loss of which the claims have been made. That was also a case where the consignment had been loaded and dispatched from the siding of the consignor.

36. In the decision reported as Union of India v. Roop Narayan and Ors. (1997)1 WLN 339 the core question which had arisen for consideration was whether consignment booked under a ``said to contain'` railway receipt, amounts to admission on the part of the railway administration, that the said number of articles had in fact were loaded.

37. In said regards the learned court noted the provisions of Rule 1513 of the Indian Commercial Railways Manual which reads as under:- ``The outward tally book is an important and initial record of the actual loading of consignments and is iikely to be referred when responsibility has to be fixed in the event of any package found missing at repacking and trans shipping points or at destination station'`.

38. After noting the afore-noted rule and other relevant provisions the learned court summed up as under:

Upshot of the above discussion is, that if the railway receipt contains the `said to contain' remark, it does not amount to admission on the part of the Railway Administration that the said number of articles had in fact been loaded. But when responsibility has to be fixed in the event of any package found, missing at destination station, then examination of ``outward tally book'` and ``Forwarding Note'` is necessary. The learned Tribunal by a majority judgment, has rightly allowed the applications. In view of this, all the arguments advanced by the learned Counsel for the appellants, devoid of any force.

39. Thus from the afore-noted discussion it is clear that when consignment is booked on said to contain basis the railways is not exonerated from its liability to pay compensation in respect of short delivery of loaded goods. The only effect of the endorsement said to contain is that the onus to prove that the quantity as claimed by consignor/consignee was actually loaded is on the consignor/consignee.

40. It remains to be seen in the instant case that whether appellant duly proved that consignor loaded 245 bags in the wagon consignor.

41. Counter foil of gate pass Ex.A-9 and extract of delivery book (pg 111) and extract of loading book Ex.A-4(loading book is equivalent to outward tally book as deposed by Virender Kumar, Chief Goods Clerk, Northern Railway) are important pieces of evidence to prove actual loading as held in Roop Narayan's case (supra). Said documents leads to a strong inference that the 245 bags were loaded in the wagon. These entries are made by the respondent's staff and it can be presumed that officials must have made entries only after counting the bags.

42. It cannot be lost sight of the fact there was a hole in the roof of the wagon meaning thereby that the wagon was tampered with.

43. In view of above discussion I thus hold that:

I Consignment in question was not booked on said to contain basis.

II. Even if it is assumed that consignment in question was booked on said to contain basis the appellant has duly proved that consignor had loaded 245 bags of Urad Dal in the wagon.

III. Respondent is liable to pay compensation to the appellant in respect of short delivery of 40 bags.

44. There is no serious dispute from the side of the respondent to the amount of compensation claimed by the appellant for short delivery of 40 bags.

45. In the suit appellant has claimed a sum of Rs. 20,000/- as compensation for short delivery of 40 bags.

46. Accordingly I direct the respondent to pay to the appellant a sum of Rs. 20,000/- together with the interest @ 7.5 p.a. from the date of filing of the suit till date of realisation.

47. Appeal is accordingly allowed in terms of para 45 above.

48. No costs.

49. LCR be returned.