Delhi High Court
Shankar Lal vs Uoi on 9 November, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO 307/1996
Reserved on: 02.11.2010
Decided on: 09 .11.2010
SHANKAR LAL ..... Appellant
Through Mr. M.L. Bhargava, Advocate
Versus
UOI .... Respondent
Through Mr. Sanjay Pathak, Advocate
CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
: MOOL CHAND GARG,J
1. This appeal has been filed by the appellant who was a claimant
before the Railway Claims Tribunal with respect to the damages
caused by the Railways in having damaged one consignment
consisting of 490 kattas kabli Gram booked by them on Wadi Bunder
to New Delhi on 06.10.1989 for delivery to the appellant. The
booking was at Railway risk rate. The wagon containing the
consignment was dispatched on 07.10.1989 and reached Delhi on
22.12.1989 i.e. two months and 15 days after the date of dispatch.
On arrival when physical delivery was taken it was found that the
contents were damaged and delivery was taken on assessment of
damage. The assessment of damage by the Railways was as under:-
(i) 20% damage on 200m Bags
(ii) 25% damage on 290 Bags
(Assessment Report Ex.RW/1/10 is at page 207)
2. A sum of `54519/- which was offered by the Railways has
already been taken by the appellant but he says that the same was
accepted under protest. According to the appellant, the loss caused
to the appellant as per the assessment report was to the tune of `
79986/- and thus, he is claiming balance amount of ` 25,467/-, which
was not accepted by the respondent and as such, the claim was
contested.
3. On the pleadings of the parties, the Tribunal framed the
following issues:-
(i) Whether the sum of ` 54519/- was offered by the
respondents to the applicant and whether the said amount
was accepted by the applicant in full and final settlement of
all the claims and contentions of applicant? If not, its effect.
(ii) To what amount, if any, is the applicant now entitled?
4. The only plea taken by the respondents was that the appellant
had accepted the sum of `54519/- in full and final settlement but they
could not produce those documents, whereas the appellant had
proved on record his letters dated 08.05.1991 and 06.06.1991 exhibit
AW1/RX1 and AW2/RX1 which says that the amount was accepted by
the appellant under protest. The Tribunal has made a reference to
these letters at page 6 of the order. Despite that, the Tribunal has
not given any finding on issue No.1.
5. It is submitted by the appellant that as per their own reports the
Railway initially verified the claim of the appellant to the tune of `
79986/- vide report dated 13.09.1990 exhibit RW1/4; then again
verified at ` 64000/- vide report dated 24.03.1990 exhibit RW1/5 and
finally they came out with the third report based upon some rates in
economic times to the tune of ` 54519/-. It is submitted by the
appellant that the reliance placed by the respondents in having
rejected the claim of the appellant for the balance amount by
referring to the third report based upon newspaper reports and on the
second report which the witness of the respondents in cross-
examination has admitted that the said report was given on the
asking of the senior officers is not justified. Moreover, RW-1 has
admitted that the first report was given after seeing the original bill
and photocopy of the same was brought by the appellant. The witness
also admitted that he had verified the bill from the account books of
the consigner and the assessment was made after 14% reduction
from the claim as per the instructions of the claimant even though
such deduction was not as per the rules.
6. In these circumstances it is stated on behalf of the appellants
that once their own assessment of rates as per the first report was to
the tune of ` 79986/-, preparing a second report and third report by
fixing the rate of the consigned goods on the basis of the rates in the
Economic Times when bills had been produced on behalf of the
appellant was absolutely of no consequence more so when it was
prepared at the behest of senior officers. It is therefore submitted
that the appellant is entitled to the balance amount. It is also
submitted that the correspondent placed on record by the appellant
also show that he has not accepted a sum of ` 54519/- in full and final
settlement of his claim.
7. On the other hand the learned counsel for the respondent could
not show any good reason for having relied upon the second or third
report. He only submits that the commodity which was consigned
through railway was imported one and that remained in the ship for
40 to 45 days and thereafter it was loaded directly in the wagon
which due to the sea water was subjected to dampness. It was stated
that the appellants have not complied with Rule 1841 of Commercial
Manual Part-II. It is submitted that the respondent could claim
protection under Section 93 (g) of Indian Railways Act. However,
none of these pleas were part of the written statement filed by the
respondent nor any such plea was brought on record in the form of
evidence produced by the respondents.
8. In these circumstances, I decide issue No.1 in favour of the
appellant and consequently, the appellant is entitled to balance
amount of `25467/- after adjusting the amount of `54519/- from the
claim of the respondents themselves as verified by their first report.
Accordingly, the appeal is allowed. The respondents are liable to pay
the balance amount of `25467/- along with interest @9% per annum
w.e.f. the date when the claim petition was filed by the appellant
before the Railway Claims Tribunal. TCR, if any, be sent back along
with a copy of this judgment.
MOOL CHAND GARG, J
NOVEMBER 09, 2010
'ga'
