MFA/123/2011
2021 Latest Caselaw 2319 Gua

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GAHC010009992011




                               THE GAUHATI HIGH COURT AT GUWAHATI
               (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                                      PRINCIPAL SEAT AT GUWAHATI


                                              M. F. A. No.123/2011


         UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER,

         N.F. RAILWAY, MALIGAON, GUWAHATI - 11, ASSAM                                          ...... APPELLANT.


                                   -Versus-



         M/S. MOTILAL & GOURI FOOD STORAGE PVT. LTD.
         KHOSH BAGAN, AGARTALA, TRIPURA.

                                                                                                   ...... RESPONDENT.

Advocate for the appellant: Mrs. U. Chakraborty, Standing Counsel, Railway.

Advocate for the respondent:                     Ms. M. Sharma.




                                                        BEFORE
                               HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


Date of hearing:                              23.08.2021.


Date of judgment:                                       27.09.2021.
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                               JUDGEMENT AND ORDER (CAV)

Heard Mrs. U. Chakraborty, learned standing counsel appearing for the appellant Railway as well as Ms. M. Sharma, learned counsel appearing for the private respondent.

2. The present appeal is directed against the judgment and order dated 20.09.2011, passed by the learned Railway Claims Tribunal, Guwahati Bench at Guwahati, in Claim Application No.OA.1232/2007 (old)/OA-I/GHY/2007/1232 (new), whereby the respondent/appellant was directed to pay compensation of Rs.4,87,773/- (Rupees four lakh eighty seven thousands seven hundred seventy three) only along with interest @ 6% per annum, from the date of order through Bank Account within 90 days, failing which the amount shall carry interest @ 12% per annum till realization, on account of alleged shortage in delivery of 54197 kg. wheat, intended to be unloaded at destination Dharamnagar (DMR) station.

3. According to the applicant, the consignment of 49388 bags of wheat was booked on 21.08.2005, under Invoice No.1/RR No.395447, from Firojpur City Jn. (FZP) to Dharamnagar (DMR) station but at destination 26497 kg and 554 bags were delivered short by the respondent to the applicant. Accordingly notice under Section 106 of the Railways Act was served by the applicant to the respondent. Thereafter the applicant filed the present claim petition, before the learned Railway Claims Tribunal, Guwahati Bench at Guwahati stating therein that the respondent Railway is fully responsible for the shortage and therefore, liable to compensate the applicant for the loss suffered by them.

4. The respondent Railway filed their written statement, raising objection against the claim of the applicant and prayed for dismissal of the application with cost.

5. The Railway Authority in their written statement denied the value of the consignment and took the stand that consignment was loaded on the truck directly to the railway wagon Page No.# 3/5

under remark made in the Railway Receipt as "said to content" and as the quantity and quality of the bags were not checked by the railway staff, so the claimant/respondent was required to furnish strict proof of entrustment, actual number of bags of wheat to the Railway Administration for carriage under Section 55 of the Railway Act.

6. Upon the pleadings of both the parties, the following issues were framed:

1) Whether notice served u/s.106 of the Railways Act, 1989 by the Applicant to the Respondent is in time and maintainable?

2) Whether the Applicant is entitled for the compensation against shortage as alleged in their application?

3) Relief and Order?

7. Both the parties filed various documents in support of their respective claim.

8. After going through the documents available before it and hearing arguments of learned counsel for both sides, the learned Railway Claims Tribunal, Guwahati decided all the issues in favour of the applicant and passed the impugned judgment and order, against which the present appeal is preferred by the appellant/respondent Railway.

9. The grounds taken by the appellant Railway in the present appeal, inter alia is that the learned Tribunal committed serious errors of both law and fact, in passing the impugned judgment merely by taking into consideration the Exhibit A2 (copy of delivery certificate for shortage) in fixing the award to the tune of Rs.4,87,773/-. The learned tribunal overlooked the fact that the consignment in question was booked by the sender/consignor at forwarding station (Firozpur) to Dharmanagar and the same was arrived at transshipment point, Lumding with seal rivet intact condition and as such the appellant/respondent is not liable for the alleged shortage.

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10. I have heard the arguments advanced by learned counsel for both sides and perused the documents available in the record.

11. The learned counsel for the appellant, primarily argued on the point of delay in filing the claim petition after furnishing notice under Section 106 of Railway Act, 1986 and that claim of the respondent cannot rest upon the RR because according to Section 65(2)of the Act, RR shall be prima facie evidence of weight but not the number of package stated therein. It is contended that as the respondent failed to discharge the obligation to prove the weight loaded in the wagon, their claim cannot be entertained. Reliance has also been placed upon the decision rendered in MFA 269/2010 (Union of India v. M/s. Shree Gopal Enterprises); 2002 (1) GLT 605 (Sreeniwas Basudeo v. Union of India and Ors.) in support of the contention that Railway Receipt indicating "said to contain" meaning thereby weight declared by the sender was accepted for the purpose of freight only.

12. Countering the submission of the learned counsel for the appellant, it is vehemently contended by the learned counsel for the respondent that prior to filing of the case, notice under Section 106 was issued to the General Manager within the stipulated period of six months and as such there cannot be any violation of rule and the delay is inconsequential. Furthermore, it is submitted that there is no any violation of Section 65 and there is violation of rules as enumerated in the Indian Railway Commercial Manual (Reference has been made to the Rule 1402, 1415, 1418, 1512 and 1714). The learned counsel for respondent has vehemently argued that in view of Section 93 of the Railway Act coupled with the rules as mentioned above, Railway Authority is responsible for the loss, destruction, damage of the article loaded for transportation.

13. Having heard the rival submission of learned counsel for both the parties, this Court has also gone through the impugned judgment as well as the rules and the provisions of the Act referred above.

14. On perusal of the impugned judgment and order it reveals that the learned Tribunal took Page No.# 5/5

note of the fact that the Railway Authority has not produced the loading tally, transit report, seal and card label and in absence of which it is not conclusively proved that shortage of consignment was not due to negligence on the part of the Railway Authority during the transit. The respondent failed to prove their plea by any documentary evidence. So it is proved that respondent has not delivered the entire consignment and there is a short delivery.

15. More particularly, the entire decision of the Tribunal rests upon the settlement deed entered between the parties vide Ext.A5 while both the sides mutually accepted the rate at Rs.900/- per quintal and decide the claim at the rate of Rs.9 per kg. X 54197 kg.= Rs.4,87,773/- and the claim is decided accordingly on the basis of such mutual agreement at the time of final hearing. That being so, it amounts to a consent decree and hence appeal itself is not maintainable under Section 23(2) of the Railway Claims Tribunal Act and no appeal will lie against consent decree.

Learned counsel for the appellant did not address the above aspect and in the considered opinion of this Court, the parties cannot be permitted to travel beyond their own pleaded case. Therefore, without addressing the various issue raised in this case, this Court is of the opinion that the appeal is not maintainable and consequently stands dismissed. No cost.

JUDGE

Comparing Assistant