Gauhati High Court
Union Of India vs M/S Hill Trade Agencies on 10 December, 2021
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GAHC010211952015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/41/2015
UNION OF INDIA
REPRESENTED BY THE GENERAL MANAGER, N.F RAILWAY, MALIGAON,
GUWAHATI, DIST. KAMRUP ASSAM
VERSUS
M/S HILL TRADE AGENCIES
407, P.B. COMPLEX, A.T. ROAD, GUWAHATI 781001
Advocate for the Petitioner : MS.U CHAKRABORTY
Advocate for the Respondent : MR. K P MAHESWARI
BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
JUDGMENT
Date : 10-12-2021
Heard Ms. U. Chakraborty, learned counsel appearing for the appellant as well
as Ms. M. Sharma, learned counsel representing the respondent.
2. This is an appeal under Section 23 of the Railway Claims Tribunal Act, 1987
against the common judgment and order dated 17.07.2015 passed by the Railway
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Claims Tribunal, Guwahati in Original Application No. OA-147/2004.
3. Shorn of unnecessary details, the factual matrix leading to filing of this appeal is-
goods were booked under Railway Risk Rate of freight. The consignment arrived at
the destination in defective conditions. The respondent railways issued short/delivery
certificate to the appellant.
4. The only defence taken by the railways is that when the goods were booked
under the Railway Receipt contained the remarks 'said to contain'. The Railways
thereby tried to impress upon the Court that the quantity or volume of the goods
booked is not certain. Therefore, loss cannot be quantified.
5. I have given my anxious consideration to the submissions made by the learned
counsels of both sides.
6. It is an admitted fact that the appellant booked the goods under Railway Risk
Rate and paid the necessary freight charge. Section 93 of the Railways Act, 1989
makes the railway administration to pay damages for any loss, destruction, damage
or deterioration in transit. Except in those cases, which are enumerated in the
aforesaid section. The proviso to Section 93 clearly mentions that even in those cases
which come within the exception, the railway administration shall have to prove that
it had used reasonable foresight and care in carriage of the goods. A plain reading
of Section 93 leaves no scope for any doubt that the burden to prove that the
deterioration did not result due to any negligence or lack of care on the part of the
railway authorities in the carriage of goods. The burden of proof is upon the railways
and not upon the consignor or the consignee.
7. The Tribunal framed the following issues for the purpose of adjudication of all the
23 disputes-
1. Whether the applicant served claim notice under section 106 of Railway
Act, 1989 within time?
2. Whether the applicant holds legal title to demand compensation?
3. Whether the applicants are entitled for any compensation on account of
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shortage of the consignment? If so, to what sum?
4. Relief and costs?
8. At this stage, Section 65 of the Railways Act of 1989 is relevant. It reads as under:
"65. Railway receipt.--
(1) A railway administration shall,--
(a) in a case where the goods are to be loaded by a person entrusting such goods, on the
completion of such loading; or
(b) in any other case, on the acceptance of the goods by it, issue a railway receipt in such form
as may be specified by the Central Government.
(2) A railway receipt shall be prima facie evidence of the weight and the number of packages
stated therein: Provided that in the case of a consignment in wagon-load or train-load and the
weight or the number of packages is not checked by a railway servant authorised in this behalf,
and a statement to that effect is recorded in such railway receipt by him, the burden of proving
the weight or, as the case may be, the number of packages stated therein, shall lie on the
consignor, the consignee or the endorsee."
9. Under Section 65, a railway servant, entrusted to look after loading of goods in
trains shall issue a railway receipt having a statement pertaining to the weight and
number of packages loaded into the train one. Law allows the said railway receipt to
be the prima facie evidence of weight and the number of packages.
10. In the case in hand, the railway receipt contained a remark 'said to contain'.
Therefore, this act is a violation of Section 65 of the Railways Act. No official circulars
can dilute the said provision of law.
11. Now, the question arises, had the appellant actually loaded the quantity of
goods in the wagon as claimed. The subsequent question is how much damage was
caused to those goods in transit.
12. Those two facts are vital issues. The Railway Claims Tribunal, though exercises
quashi judicial powers, is involved in dispute resolution. Therefore, the claims tribunal
has a duty to see to it that no injustice is caused to either of the parties.
13. Now, this Court is of the opinion that the impugned common judgment suffers
from infirmity and such a judgment is not sustainable in law.
14. With the aforesaid observations, the appeal is allowed. The impugned common
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judgment is set aside.
15. All the 23 Original Applications shall be decided afresh by framing appropriate
issues. The Tribunal shall also provide opportunities to both sides to adduce evidence
if they desire. After that, the Tribunal shall pass a fresh judgment in all 23 Original
Applications.
16. The appeal is disposed of. Send back the LCR.
JUDGE
Comparing Assistant
