Union Of India vs M/S P.P. Enterprise
2021 Latest Caselaw 3107 Gua

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GAHC010122812015




                              THE GAUHATI HIGH COURT
     (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                   Case No. : MFA/65/2015

             UNION OF INDIA
             REPRESENTED BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON,
             GUWAHATI-11



             VERSUS

             M/S P.P. ENTERPRISE
             FANCY BAZAR, GUWAHATI 781001, ASSAM.



Advocate for the Petitioner   : SC, NF RLY

Advocate for the Respondent : MR.A GOYAL




                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                             ORDER

25.11.2021

Heard Mr. D. K. Dey, 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 Judgment and Order dated 23.01.2015 passed by the Railway Claims Page No.# 2/5

Tribunal, Guwahati Bench in Claim Application No.O.A.292/2002 (old), O.A. No. OA- I/GHY/2002/0292 (New).

3. A consignment containing 1305 packets of peas was booked on 8/9.02.2000 under Invoice No. 147/ Railway Receipt No. 931435 from NACC to NGC in safe, sound and secured condition under Railway risk rate, after making all legal and statutory inspection as per Railway Rules. They paid the entire amount being the price of the goods and consideration money to the consignor/seller. After undue delay, the consignment reached the destination. At the time of unloading, the wagon seals and the card lebels were found absent. There were big gapes in the door of the wagon and the goods inside the wagon were also found disturbed. It was also found that big holes were cut on the walls of the wagon. Those facts suggested criminal interference enroute. On unloading, shortage was discovered.

4. On the basis of the pleadings of the parties, the Tribunal framed the following issues:

I. Whether Notice under section 106 of the Railways Act,1989 was served by the applicant to the respondent?

II. Whether the applicant holds title for the claim?

III. Whether the wagons in which the consignment was loaded arrived in seal intact at the destination/ IV. Whether the respondent has delivered the entire consignment to the applicant at the destination as per RR?

V. Whether the applicant proves that he did not receive the consignment in full?

5. In due course, the Tribunal directed the appellant railways to pay a compensation of Rs.22,000/- to the respondent with interest and cost.

6. Being aggrieved of the aforesaid order of the Tribunal, the present appeal has been filed.

7. Mr. Dey submits that the learned Tribunal failed to consider the fact that there was criminal intervention in between the point of departure and the point of arrival. According to Mr. Dey, the copy of the 'Tally Book' clearly showed that the wagon Page No.# 3/5

was received at destination in SRI condition. Mr. Dey further submits that the alleged short delivery was actually due to short loading. The learned counsel Mr. Dey submits that in the Railway Receipt it was written as 'said to contain' and the consignment was loaded into the wagon by the consignor from trucks without any supervision of railway staff about quality and quantity. Sender accepted the (SWA) condition that was imposed as mentioned in the original Railway Receipt.

8. Ms. Sharma, appearing for the respondent, has supported the impugned judgment by stating that it is a reasoned judgment and therefore does not deserve to be interfered with.

9. I have given my anxious consideration to the submissions of the learned counsel for both sides.

10. The consignment was sent under Railway Risk Rate. This Court in Union of India vs. M/s P.P. Enterprise (MFA 43/2013) has held that for a claim for payment of compensation on account of ''short delivery' of goods booked under the 'owners risk' category, the claimant would have to lead evidence in order to establish the quantum of goods that was actually loaded in the train wagon. Therefore, when the consignment was booked under the Railway Risk Category, it is the railways who has to prove that the consignor actually short.

11. The plea, that there was a criminal intervention in between the starting point and the destination point and for that matter, railways is not responsible for the loss sustained by the respondent, does not hold good in the eye of law. The consignment was booked under the Railway Risk category. Therefore, the railways would be held liable if there was any short delivery in the destination.

12. Mr. Dey has relied upon a decision of the Supreme Court that was rendered in Hari Sao and another vs. State of Bihar, reported in 1969 (3) SCC 107. It is a criminal matter involving the offence of cheating under Section 420 of the Indian Penal Code and the railways' liability under Section 73 of the Railways Act. So, it is clear that the circumstances under which the Supreme Court had passed the judgment is not similar with the present case and, therefore, the view taken by the Supreme Court is Page No.# 4/5

not applicable in the present case.

13. At this point, Section 65 of the Railways Act, 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 authorized 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."

14. In the case in hand, the Railway Receipt has a statement which reads as 'said to contain'. This act is a violation of the law laid down in Section 65 of the Railways Act, 1989. The railway receipt is the prima facie evidence of the weight and quantity of packages loaded into a wagon. In the present case, there was no statement of a railway servant in the Railway Receipt, which would have stated the actual amount of packages or the actual weight of the goods loaded into the wagon.

15. The appellant has admitted that there was a criminal intervention enroute before reaching the destination. I have already held that, for that reason the consigner is not responsible for the loss. In that case, the railways is responsible for giving compensation to the consignor. Since the Railway Receipt did not have any statement pertaining to the number of packages or the weight of the goods loaded into the train, the claim of the respondent, that there was a short delivery in the destination station, must be accepted.

16. Under the aforesaid premised reasons, this Court finds that the learned Tribunal has correctly assessed the evidence and law and arrived at a correct finding.

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Therefore, the appeal is found to be devoid of merit and the same is dismissed and disposed of accordingly.

17. Send back the LCR.

JUDGE

Comparing Assistant