Gauhati High Court
M/S O.D. Enterprises vs Union Of India And Anr on 9 April, 2021
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GAHC010184432014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/20/2014
M/S O.D. ENTERPRISES
MAIN ROAD, P.O. BENDERDEWA, ARUNACHAL PRADESH.
VERSUS
UNION OF INDIA and ANR,
REPRESENTED BY THE GENERAL MANAGER, N.F RAILWAY, MALIGAON,
GUWAHATI, ASSAM, PIN 781011
2:UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER
SOUTH CENTRAL RAILWAY
17
N.S.C.B. ROAD
KOLKATA
WEST BENGAL
Advocate for the Petitioner : MR.A GOYAL
Advocate for the Respondent : MSB DEVI
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
Date : 09-04-2021
Heard the learned counsel Ms. M. Sharma appearing for the appellant. Also heard
Mr. G. Goswami, the learned Standing Counsel appearing for N.F. Railways.
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2. Challenge in this appeal is to the Judgment and Order dated 23.08.2013 passed by the
learned Railway Claims Tribunal (RCT), Guwahati Bench in Claim Application No. 209 of 2004.
3. The facts of the case, in a nutshell, is that a consignment of cement in 40 BCN/BCLA
wagons was entrusted to the Railways at Manikgarh Cement Siding (MGCG) under Invoice
No. 1 to 20 under Railway Receipt Nos. 063202 to 063221 on 01.06.2003. The consignment
was transhipped from broad gauge to meter gauge at New Bongaigaon good shed (MBQ) for
MG destinations. After transhipment from BG to MG, 25 M Wagons were transhipped to North
Lakhimpur and 15 MG Wagons was transhipped to Tezpur.
4. The case of the appellant is that the Railways charged freight upon the appellant
without giving the benefit of train load consignment. Therefore, the appellant approached the
RCT for a refund of Rs. 64,268/-.
5. Ms. M. Sharma has submitted that the learned Tribunal dismissed the claim of the
appellant for want of proper title and also held that the appellant is not entitled to the benefit
of train load. According to Ms. Sharma, the learned Tribunal has failed to observe that the
Railway receipt can be construed as a "Negotiable Instrument" not only in the light of certain
judicial pronouncements but also upon the fact that the Railways Act of 1989 provide for a
statutory reorganisation to the railway receipt as a "Negotiable Instrument".
6. Opposing the aforesaid arguments, Mr. Goswami, the learned Standing Counsel for N.F.
Railways has submitted that there is a Circular of N.F. Railways dated 11.09.1998 which
indicates the type of wagons, standing rake size and minimum number of wagons to be
loaded for trainload rate which is a cheaper rate then the wagonload rate. Mr. Goswami
further submitted that the appellant booked 40 BCN/BCMA wagons and therefore they are
entitled for train load benefit. Mr. Goswami submitted that as per the demands of the
appellant there were only 20 wagons booked by them and as per the Circular dated
11.09.1998 the standard rake service for BCN/BCMA wagons is 41 and minimum number of
wagons required to be loaded for trainload benefit is 38 wagons. According to Mr. Goswami
by their own admission the appellant has only 20 receipts with them which shows that they
had booked only 20 wagons. Mr. Goswami pointed out that for availing train load benefit 38
wagons are to be booked and since the appellant had booked only 20 wagons they are not
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entitled to trainload benefit.
7. I have given my anxious consideration to the submissions made by the learned
counsels for the parties. The only dispute in the present appeal pertains to rejection of the
claim of the appellant for trainload rate. On the issue whether the appellant is entitle to
wagonload or trainload, the learned Tribunal has held as under:
"The applicant states that 40 wagons were loaded from MGCG via New Bongaigaon
(NBQ) and out of this, 25 wagons were booked for NLP and the remaining 15 wagons for
TZTB. The learned counsel for the applicant, citing Railways circular dated 11.09.1998
(annex.) stated during the course of his argument that trainload benefit of freight is extended
to the party, when a minimum of 38 BCN wagons are loaded for two or three MG
destinations. In terms of Section 65(2) of the Railways Act, 1989, railway receipt is the prima
facie evidence in regard to the quantity of loading. So, the applicant has enclosed the
photocopies of the railway receipts, issued by the loading station, as a proof of loading.
Perusal of the photocopies of the railway receipts reveal that only 21 wagons were booked by
Manikgarh Cement Gadchandur, District Chandrapur-442908 from MGCG to NLP and
consigned to Rikhabchand Sohanlal Ltd., Tezpore. Subsequently, it was endorsed by the
consignee to M/s. O.D. Enterprise, Main Road, P.O. Banderdewa, Arunachal Pradesh. So,
there is nothing on record to prove that 40 BCN wagons were loaded from MGCG. In fact,
the applicant himself is not sure about the quantity of cement loaded by the cement factory
at Manikgarh on 01.06.2003, for destination like NLP/TZTB. In para (i) Fact of the case (c)
he claims that 25 wagons were loaded for NLP. However, in the last para he contradicts
himself by giving the calculation of freight for 20 wagons. The railway receipts enclosed to
the application accounts for 21 wagons. The fact remains that nowhere it has been proved
that 40 wagons were loaded and consigned/endorsed in his favour from MGCG on
01.06.2003. Thus, it stands to prove that a minimum of 38 BCN wagons were not loaded, as
claimed and therefore, he was not entitled to receive the benefit of trainload class rate. In
other words, he was correctly charged at wagonload class rate."
8. The N.F. Railway Circular dated 11.09.1998 pertaining to the chart indicating the type
of wagon, standard rake size and minimum number of wagons to be loaded for trainload rate
is like this:
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Sl. Type of Wagon Standard Minimum number of Wagons
No. rake size: required to be loaded for T/L
_________________________________________________________
_________________________________________________________
14. Mixed Rakes (BC) BOX/OFR
15. Metro Gauge MG to MG 34 (in terms of four wheeler)
16. MG top BG 90 (in terms of four wheeler)
_________________________________________________________
9. It is admitted case of the appellant that they had booked 20 wagons and according to
the Circular dated 11.09.1998 in order to avail trainload benefit, the appellant were to book
38 wagons. Therefore, this Court finds that the RCT arrived at a correct finding while denying
the claim of the appellant.
10. Therefore, this appeal fails and stands dismissed accordingly.
JUDGE
Comparing Assistant
