Delhi High Court
Union Of India vs M/S Steel Authority Of India ... on 12 January, 2018
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on 12.01.2018
+ FAO 249/2016
UNION OF INDIA ..... Appellant
Through: Mr. A. S. Dateer, Advocate
Versus
M/S STEEL AUTHORITY OF INDIA LIMITED ..... Respondent
Through: Mr. Sharat Kapoor and Ms. Manpreet
Kaur, Advocates.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (Oral)
1. This appeal impugns the Award of the Railways Claims Tribunal
dated 24.09.2015 which has granted the respondent's claim of Rs.9,63,050/-
alongwith simple interest @ 6% per annum from the date of filing of the
claim petition till 24.09.2015 and thereafter @ 9% per annum till its
realization.
2. For the purpose of convenience, the parties are referred by the terms
'applicant' and 'respondent', as was referred by the Tribunal.
3. The applicant had handed over eight packets of Hot Rolled Sheets
(HR Sheets) loaded in box wagon No. SE 120960, which was booked under
Railway Receipt (RR) No.212024881 dated 18.11.2008 with the respondent
from its Bokaro Steel Plant for delivery to the consignee at Tughlakabad
Mineral Goods Siding, New Delhi. The applicant states that the HR Sheets,
made of steel cannot be easily shifted and can be visually identified and
counted. The goods were loaded in the Railway Wagon after proper
weighment; the details of the product as well as the total weight was
mentioned in the invoice which tallied with the weight shown in the Railway
Receipt. However, upon arrival at the destination on 28.11.2008, the
consignee informed the applicant that instead of eight packets only five
packets of HR Sheets had reached, therefore, they refused to accept the
consignment. On their request, the consignment was re-weighed by the
Railways on 01.12.2008 and a certificate was issued to the consignee
showing a shortage of 23.480 MT/3 packets of HR Sheets against
corresponding RR weight of 66.520 MT. The short consignment was
unloaded at Tughlakabad Mineral Siding on 02.12.2008 after re-weighment
and was taken away to the warehouse of the consignee. The wharfage
charges and the demurrage charges totalling to an amount of Rs.9,63,050/-,
on account of the delay in unloading, and for the wagons occupying the
siding were also claimed by the applicant alongwith the cost of the deficient
three packets of HR Sheets, in terms of Annexure-1 to the claim petition,
which included some statutory charges and re-weighment charges.
4. The six issues were framed by the Claims Tribunal were:-
"1) Whether the claim application has been signed, verified
and filed by a duly authorized person on behalf of the
applicant-Company?
2) Whether the applicant has no locus standi to file the
present claim application?
3) Whether the claim is bad for want of statutory notice u/s
106 of the Railways Act?
4) Whether the claim is barred by limitation?
5) Whether the respondent-railways are protected u/s 93(f), 94
and 98 of the Railways Act as the consignment was booked on
'said to contain', basis by the applicant without supervision of
the railway staff?
5) Whether the applicant is entitled to recover a sum of
Rs.9, 63,050/- as claimed?
6) To what relief?"
5. Each of the aforesaid issues were returned in favour of the applicant.
The substantive relief is covered in issues nos. 5 and 6, apropos which the
Tribunal reasoned as under:-
"11. The case of the applicant is that they had handed over
eight packets of Hot Rolled Sheets (HR Sheets) loaded in box
wagon no. SE 120960 which was booked under Railway
Receipt (RR) No.212024881 dated 18.11.2008 with the
respondent-Railway from Bokaro Steel Plant, Bokaro for
delivery at Tughlakabad Mineral Goods Siding, New Delhi. It
is stated that HR Sheets are items that can be easily counted as
they are packed in packets/coils and the goods were loaded in
the Railway Wagon after proper weighment and the details
and the total weight was mentioned in the invoice and tallies
with the weight shown in the Railway Receipt. It is stated that
the said wagon arrived at destination Tughlakabad Mineral
Siding on 28.11.2008 and on arrival, the applicant's customer
M/s. Indian Steel Corporation informed the Branch Manager
(FT), New Delhi of the applicant on 28.11.2008 itself that the
wagon contains only five packets whereas the invoice shows
eight packets and therefore, refused to accept the consignment.
It is stated that apprehending shortage of goods, the applicant
immediately requested the respondent for re-weighment on
28.11.2008 but instead of deciding the application, the railway
requested for original RR which was submitted on 30.11.2008.
The respondent Railway accepted the request for re-
weighment and after carrying out re-weighment on EWB/TKD
at applicant's cost, issued shortage certificate to the applicant
showing shortage of 23.480 MT/ 3 packets of HR Sheets
against corresponding RR weight of 66.520 MT. It is stated
that due to non-receipt of 23.480 MT comprised in three
packets of HR Sheet bearing packet nos. R35844A, R354565A,
R352105C weighing 8.890 MT, 9.350 MT and 3.540 MT
respectively, the applicant suffered a loss of Rs.9,63,050/-
which was on account of negligence on the part of the
respondent while the consignment was in transit. Admittedly
AW-1 was riot present at the time of loading. However, the
copy of the forwarding note filed by the applicant with the
rejoinder to written statement and the Railway Receipt, ExJl-3
show that eight bundles of HR Sheet weighing 66.52 MT were
loaded in BOXN wagon no. SE 120960. The Tax Invoice cum
Consignment Note, Ex.A-3 and the Test Certificate, Ex.A-8
also show dispatch of eight packets. The shortage certificate,
Ex.A-12 shows that only 5 packets of HR Sheet were unloaded
and 3 packets HR Sheet weighing 23.48 MT were delivered
short.
12. The respondent railway, on the other hand, has contended
that they are protected under Sections 93(f), 94 and 98 of the
Railways Act as the consignment was, loaded by the sender at
their private siding and was booked on 'said to contain basis
without the supervision of railway staff and reached the
destination station within time. It is averred that the packing
condition was not complied with and the consignment is a
crane consignment and it is not possible to remove the
consignment without the help of the crane from the box wagon.
The respondent therefore, contends that it is a case of short
loading and the party has failed to produce copy of the stock
register to show the actual loading at forwarding railway
station which was not witnessed by the railway staff. The
Railway Receipt, Ex.R-3 bears the remark 'loading done in
siding, not supervised by railway staff, sender's weight
accepted, said to contain, packing condition not compliant
showing that the consignment was loaded in private siding of
the applicant, loading was not supervised by the railway: staff
and 'said to contain' RR was issued. AW-1 has also accepted
the same in his evidence. However, extract of Seal Book, Ex.R-
6 would show that at the originating point, wagon no. SE
120960 BOXN was brought to Out/yard BKSC from the
loading point on 19.11.08 as part of BVIOTKD train
consisting of 10 BRN+12 B0XNM8 BOST wagons loaded with
HWCR coil and HR plate and sheet. The contents of the
wagons were recorded by the RPF staff and 8 bundles of HR
Sheet have loaded in the subject wagon. The train load
containing this wagon remained in the railway yard up to
24.11.2008 and the contents were re-checked by the RPF staff
on 24.11.2008 as recorded in Ex.R-6. The report of Senior
Divisional Security Commissioner, Delhi, Ex.R-5 records that
this train load was handed over to the railway by Bokaro Steel
Plant at 2.30 hours on 19.11.2008 and seven BRN wagons of
this train were shuttled between the Steel Plant and the Yard
three times. Ex.R-6 also records that seven BRN wagons were
returned to the steel plant, but the remaining wagons including
the wagon in question remained in BKSC Yard in the custody
.of the respondent Rail way throughout. The Seal Book, Ex.R-6
clearly shows that eight bundles of HR Sheet had been loaded
in the subject wagon and handed over to the respondent
Railway. In the light of the railway's own record of Seal Book,
the respondent cannot take protection under 'said to contain'
RR as the contents were checked by RPF staff at the
originating point when the wagons were handed over to the
railway by the applicant Company and goods as recorded in
the Railway Receipt were found loaded in the wagon.
13. Ex.R-5 shows that the subject wagon left BKSC yard at
14.15 hours on 24.11.2008 and reached Tughlakabad yard at
4.00 hours on 28.11.2008 and was placed in the Mineral
Siding Tughlakabad for unloading at 6.00 hours. This is
Railway's own siding and on duty Head Goods Clerk
Tughlakabad on checking the wagon reported that there are
only five packets of HR sheet instead of 8 packets shown on the
card label and informed the RPF staff, who after checking the
wagon prepared a joint note. Thus, Ex. R-5 and Ex.R-6 would
clearly show that eight packets of HR sheets were handed over
to the Railway at Bokaro exchange yard but only five packets
arrived at Tughlakabad Mineral Siding establishing that the
loss of three packets occurred when the consignment was in
the custody of the railway.
14. The report of CCI/Claims, Ex.R-1 mentions that as per
report of Sr.DSC, RPF, Northern Railway, Ex.R-5 rake was
thrice drawn out and placed in siding, the circumstances for
which needs to be thoroughly investigated from Bokaro as
there appears some foul play done by M/s. SAIL and there may
be short loading of consignment or the consignment may have
been unloaded after re-placement in SAIL siding Bokaro.
However, Ex. R-5 and Ex.R-6 show that the subject wagon
remained in the custody of the railway after it was handed
over on 19.11.2008 and was not taken back to the plant.
Therefore, there can be no foul play by the applicant Company
with this wagon. RPF staff checked this wagon on 19.11.2008
and again on 24.11.2008 and recorded that it contained eight
bundles of HR Sheet. Therefore, contention of the respondent
regarding short loading by the applicant is not acceptable. At
the destination .point, shortage was noticed by the railway
staff and was also reported by the applicant and on re-
weighment of the wagon, shortage of 23.48 MT consisting of
three packets of HR Sheet was found and DDPC message,
Ex.R-4 and shortage certificate, Ex.A-12 were issued by the
railway staff.
15. The respondent has claimed protection under Section 94
of the Railways Act, which provides that for goods loaded or
delivered at a siding not belonging to a railway
administration, the responsibility of the railway is limited from
the time it takes over the wagon at the specified point of inter-
change to the point when it hands over the wagon to the
consignee at the specified point of inter-change. In this case,
Ex.R-5 and Ex.R-6 would show that eight bundles of HR Sheet
loaded in -the subject wagon were handed over to the
respondent Railway but only five bundles reached at
destination station which establishes that the loss of
consignment was in transit when the wagon was in the custody
of the railway administration and the respondent-railway
cannot take protection under Section 94 of the Railways Act.
Further it is a case of complete loss of three packets of HR
Sheet for which non-compliance of the outer packing condition
is immaterial and as such, provisions of Section 98 are not
applicable to this case. Finally, Section 93(f) relates to act of
omission or negligence of the consignor/consignee, but no
negligence on the part of the consignor/consignee leading to
the loss of three bundles during transit has either been
established or is apparent.
16. It is admitted position that the consignment Was booked
on 18.11.2008 and reached destination on 28.11.2008, i.e.
after ten days. The average transit time has been certified by
Chief Goods Supervisor, Tughlakabad as five days (certificate
enclosed with Ex.R4). The wagon reached destination in 10
days and there is delay in transit. But the wage was detained
for six days up to 24.11.08 at BKSC Yard and it may be
because 7 BRN wagons were returned to the steel plant. The
reason for the same is not on record. However, it does not
affect the merits of this case as shortage is established when
the goods were in transit. The respondent has contended that
the packet of HR Sheets could not have been unloaded without
the help of .crane while the applicant pleads that the packet
contains sheets weighing 50 to 100 kg and can be handled
manually. It is in the evidence of AW-l that the packet
comprised of loose sheets which are bundled and strapped and
sheets can be removed after cutting the stripes open.
Therefore, the contention of the respondent that the packets,
could not have been removed without the crane is not
acceptable. Since the loss of three packets was during transit
when the consignment was in the custody of the respondent
Railway, the respondent cannot escape responsibility for the
same. The shortage certificate, Ex.A-12 shows three packets of
HR Sheet weighing 23.48 Ml were delivered short. In view of
the above discussion, it stands proved that the consignment in
question was-delivered short to the extent of 23.480 MT of HR
Sheet at the destination station and the respondent-railway are
not absolved of their liability for such short delivery of the
consignment and are not protected under the provisions of the
Railways Act mentioned ibid. The issue is answered
accordingly.
Issue no. 6
17. The applicant has claimed Rs. 9,63,050/- towards loss
suffered by them due to non-receipt of 23.480 MT comprised in
three packets of HR Sheet bearing packet nos. R35844A,
R354565A, R352:i05C weighing 8.890 MT, 9.350 MT and
3.540 MT respectively. It is stated that the applicant had to
pay re-weighment charges of Rs.3620/- and after re-
weighment, the short consignment was unloaded at
Tughlakabad Mineral Siding on 2.12.2008 and was received
by the applicant at their warehouse on the same day but the
applicant was made to pay wharfage charges of Rs.20,775.00
and demurrage charges of Rs.69,300/- which was not justified
as the delay in re-weighment was on account of the
respondent. Ex.A-4, Ex.A-5 and Ex.A-6 are copy of receipts
showing payment of re-weighment charges, wharfage charges
and demurrage charges respectively. The shortage certificate,
Ex.A-12 issued by Chief' Goods Supervisor, Tughlakabad
Mineral Siding shows shortage of 23.48 MT which is also
recorded in Ex.R-2, Ex.R-4 and Ex. R-5. Basic rate for the
three packages found short has been shown as Rs.33100/- in
the Tax Invoice-cum-Consignment note, Ex.A-3. The
respondent-Railway has not been able to dispute this rate of
the commodity. Also since the shortage occurred when the
consignment was in the custody of the railway, the applicant
cannot be penalized by levy of re-weightment charges,
demurrage charges and the wharfage charges for no fault on
their part. Calculating at the aforesaid basic rate and
including the excise duty. Cess, freight, re-weighment,
wharfage and demurrage charges, the amount of
compensation works out to Rs.963050/-, details of which are
given in the claim notice served on the respondent arid the
applicant is held entitled to this much amount of compensation
for short delivery of the consignment. The issue is answered
accordingly."
6. The learned counsel for the appellant submits that the wagon after
being loaded was taken back inside the Bokaro Steel Plant before it started
its journey, therefore, there is some suspicion about the quantum of the load.
He contends that the doubt about the correct weight of the despatched
consignment was never cleared. Instead, the consignor capitalized on the
short-loading in a trumped-up claim petition. However, the Court would
note that this contention has been dealt with fully and rejected in terms of
para 14 of the impugned order. The Tribunal noted that after it was handed
over to the railway on 19.11.2008, the wagon remained in their custody "and
was not taken back to the plant. Therefore, there can be no foul play by the
applicant Company with this wagon. RPF staff checked this wagon on
19.11.2008 and again on 24.11.2008 and recorded that it contained eight
bundles of HR Sheet. Therefore, contention of the respondent regarding
short loading by the applicant is not acceptable. At the destination .point,
shortage was noticed by the railway staff and was also reported by the
applicant and on re-weighment of the wagon, shortage of 23.48 MT
consisting of three packets of HR Sheet was found and DDPC message,
Ex.R-4 and shortage certificate, Ex.A-12 were issued by the railway staff".
Except for the appellant's suspicion of short-loading, there is no evidence
brought on record by them or an error shown in the reasoning or the
conclusion arrived at to warrant interference in this appeal.
7. The appeal lacks merit and is accordingly dismissed.
NAJMI WAZIRI, J.
JANUARY 12, 2018
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