Miscellaneous Appeal No. 956 of 2011 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.956 of 2011 ====================================================== Union of India through its General Manager, Eastern Railway, Kolkata. ....Respondent .... Appellant/s Versus Ganesh Prasad Arya, Proprietor of "M/S Shyam Salt Bhandar" located at Post Office road, Warisaliganj, District- Nawada, Bihar. .... Applicant .... Respondent/s ====================================================== with Miscellaneous Appeal No.957 of 2011 ====================================================== Union of India through its General Manager, Eastern Railway, Kolkata. .... Respondent .... Appellant/s Versus Kanhaiya Bhalotia, Proprietor, Ranisati Salt Traders, Purani Bazar, Jamui. .... Applicant .... Respondent/s ====================================================== Appearance : (In MA No.956 of 2011) For the Appellant/s : Mr. Bijoy Kumar Sinha For the Respondent/s : None (In MA No.957 of 2011) For the Appellant/s : Mr. Bijoy Kumar Sinha For the Respondent/s : Mr. Gautam Kumar Kejriwal ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN C.A.V. ORDER 12 01-11-2013 Since both the appeals raise common questions of law and facts hence they have been taken up together with a view to their final disposal. Both the appeals are accompanied with interlocutory applications filed under section 5 of the Limitation Act, 1963 for the condonation of delay in filing the appeals bearing I.A. No.8533 of 2011 in M.A. No.956 of 2011 and I.A. No.8532 of 2011 in M.A. No.957 of 2011. There is delay of 9 months and 8 days in filing M.A. No.956 of 2011, and 1 year, 1 month and 15 days in filing Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 2 M.A. No.957 of 2011. It is stated that the delay has occasioned on account of obtaining departmental approval for filing the appeal and that there is no intentional delay or deliberate laches on the part of the appellant-Union of India in pursuing their remedy.
Legal Reasoning
I have heard Mr. Bijoy Kumar Sinha, learned counsel appearing for the appellants in both the appeals and Mr. Gautam Kumar Kejriwal, learned counsel appearing for the respondent in M.A. No.957 of 2011. Though served, the sole respondent in M.A. No.956 of 2011 has not chosen to appear. Having heard learned counsel for the parties and being satisfied by the reasons assigned, the prayer is allowed. The delay is condoned. I.A. No.8533 of 2011 and I.A. No.8532 of 2011 stand allowed. Re: M.A. No.956 and 957 of 2011: The two appeals preferred by the Union of India in its Ministry of Railways, are directed against the orders dated 30.11.22010 and 23.7.2010 respectively passed by the Railway Claims Tribunal, Patna Bench, Patna in Claim Case No.OC-00302 of 2001 and Claim Case No.OC-00201 of 2000 respectively, whereby the claims have been allowed together with interest. The respondents in both the appeals are traders engaged in Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 3 the business of salt running under the different trade names as detailed in the chart given hereinbelow and having their office and works at Warsaliganj, district- Nawada and at Jamui respectively. In course of their business the respondents purchased iodized salt packed in bags from different manufacturers of iodized salt having their office and works at Nawacity, Nagaur in the State of Rajasthan. The consignments of iodized salt packed in bags were booked for carriage in rail wagons from Nawacity to Nawada and Jamui respectively in the State of Bihar with the respondent- Railways and railway receipts were issued. The relevant foundational facts governing both the appeals are being reproduced hereinbelow for the sake of convenience: M.A. No. Claim Case No. Claim(Rupees) Consignment as 956 of 2011 OC-00302 of 7,650/- 2001 M/s Shyam Salt Bhandar, Warsaliganj, Nawada. per railway receipt no. 821 bags booked on 7/8.6.2000 vide R.R.No.241835 Short Delivery Consignment details as per Bijak 821 bags 153 bags delivered on 11.6.2000 957 of 2011 OC-00201 of 2000 Ranisati salt Traders, Jamui 31,980/- 2343bags booked on 27/28.1.1999 vide R.R. No.169419 492 bags delivered on 5.2.1999 2343bags As stated it is the case of the respondents that they had purchased iodized salt packed in bags from supplier/commission agent, having its business at Nawacity in the State of Rajasthan and booked the consignment from Nawacity, Rajasthan to Nawada and Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 4 Jamui in the State of Bihar. It is further the case of the respondents that the consignment received on arrival, was found short by several bags as detailed against each case in the chart hereinabove. It is the case of the respondents that they immediately requested the Chief Goods Supervisor for a shortage certificate but was refused and thus made entry in the delivery book maintained for the purpose and mentioned the short delivery in the delivery book. On getting no response from the appellant-Railway regarding making good the loss suffered by the respondents, a statutory notice was served under section 106 of the Railway Act, 1989 (hereinafter referred to as „the Act‟). Again getting no response from the railway, that the claim cases were filed. The respondents in terms of Rule 7(1) of the Railway Claims Tribunal (Procedure) Rules, 1989 (hereinafter referred to as “ the Rules‟) framed under section 30 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as „the Act of 1987‟), filed the following documents: (a) Photo copy of the railway receipt; (b) Notice served under section 106 of the Act. Except for filing a written statement no evidence either oral or documentary, was filed by the railway. The records of both the claim cases were summoned under the orders of this Court and a perusal whereof manifests that Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 5 except for the railway receipt and copy of the notice served under section 106 of the Act no other document was filed by the respondents. Even the so-called sale invoice (Bijak) was filed after several years. The respondents filed application under section 18(3) (b) of the Act of 1987 read with rule 20(b) and 44 of the Rules seeking a direction to the appellant Union of India to produce the loading register, forwarding note, the original railway receipt, the seal, rivet and labels, the outward tally book, the delivery book etc. of the relevant period which, according to the respondents, would have proved their contentions regarding the actual loading of the respective consignment. The entire foundation of the claim of the respondents rested on their application seeking production of the forwarding note, the railway receipt, the outward tally register, delivery book etc. The tribunal finding substance in the contention advanced on behalf of the respondents herein and taking into consideration the provisions of sections 64 and 65 of the Act and paragraphs 1512 and 1513 of the Indian Railway Commercial Manual („I.R.C.M‟ for short) held that it was the duty of the railways to prove whether the details mentioned in the forwarding note relatable to the consignment as to its weight or number, was Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 6 correct or not. The tribunal taking note of the fact that the railway had not led any evidence to controvert the claims has upheld the loss of iodized salt as set up by the claimant-respondents and required the railway administration to make payment of the compensation amount according to the value of the iodized salt as per the Bijak (sale invoice). The Railway administration was directed to make payment of the loss together with interest. The appellant-Union of India contesting the order passed by the tribunal has relied upon the provisions of sections 63, 65, 79, 81, 93 and 97 of the Act to demonstrate that there is a distinction between the goods transported at „owner‟s risk rate‟ and the goods transported at „railway risk rate‟. It has been the contention of the railways that whereas there is complete absence of supervision where goods are loaded at „owner‟s risk rate‟ and which is also reflected from the remarks made in the railway receipt, such remarks are not present in railway receipt issued in respect of goods transported at „railway risk rate‟. It was thus sought to be contested that the relevant provisions and the instruction relied upon by the tribunal to allow the claim does not apply in the case of goods transported at „owner‟s risk rate‟ and in view of the proviso to section 65(2) of the Act, the consignor/consignee/endorsee would have to prove the number and the weight by leading evidence in Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 7 support thereof. The arguments have been contested by Mr. Gautam Kejriwal to submit that since the railway had failed to produce the documents prayed for by the respondents in their respective claim cases and which would have substantiated the claims set up by the claimants, the tribunal has rightly allowed the claims in absence of any evidence contesting the stand of the claimants. Each side has relied upon the various judicial pronouncements passed by this Court and the Supreme Court in respect of their respective contentions as also the relevant instructions issued by the railway administration which forms part of the I.R.C.M. I have heard learned counsel for the parties and have perused the materials on record including the judicial pronouncements referred to by the contesting parties and the instructions forming part of the I.R.C.M. All the issues as raised in both the appeals in the backdrop of the statutory provisions, the instructions forming part of I.R.C.M. and the judicial pronouncements on the subject, were subject-matter of batch of cases bearing M.A. No.503 of 2011 and analogous cases (Kanhaiya Bhalotia vs. The Union of India). This Court taking into consideration the rival pleadings, the statutory provisions and Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 8 the various judgments governing the issues has dismissed the said appeals vide judgment and order dated 26.9.2013. The broad reasons assigned by this Court to dismiss the appeals in the backdrop of the circumstances accompanying each appeal and which also govern the present set of appeals are as follows: (a) No document is on record regarding exercise of option by the respondents for carriage at “railway risk rate” meaning thereby the carriage was at “owner‟s risk rate”. (b) No authentic piece of evidence either oral or documentary has been led by the appellants as to the proof of number of packages loaded. (c) No written complaint was registered regarding tampering with the consignment either with the railway administration or the G.R.P. (d) No written complaint has been registered by the appellant regarding short delivery except entry in delivery book, as claimed by him. (e) No request was made for open delivery in presence of the G.R.P. (f) No mention of tampering with the seals even in section 106 notice rather the first complaint in this Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 9 regard is in the claim application itself. (g) The “Bijak” was submitted after long laps and is of a doubtful character since they even mention the wagon number and the railway receipt number. Further same has not been proved in the manner prescribed under law. (h) No examination of the Seller on the “Bijak”. (i) No railway staff examined to prove the loading. (j) Booking under the railway receipt was for direct loading from the truck with no supervision of the railway staff. (k) No negligence of the railway administration proved. (l) The documents in relation whereto the petition under section 18(3) (b) was filed would in no manner alter the situation since the railway receipt itself inter alia contains, the following remarks: (i) “S.C.” i.e. “said to contain” as per statement of consignor. (ii) “Loading not supervised by the railway staff”. (iii) “Direct loading-P-17 not complied with”. (iv) “Neither K/S counted nor contents checked”. (v) “Loading direct from truck to wagon”. Patna High Court MA No.956 of 2011 (12) dt.01-11-2013 10 In view of the circumstances set forth above these appeals deserve to be allowed. The detailed reasons assigned by this Court in the judgment and order passed in M.A. No.503 of 2011 and analogous cases (Kanhaiya Bhalotia vs. The Union of India) and followed in M.A. No.380 of 2011 and analogous appeals (Ganesh Prasad Arya Vs. Union of India) both dated 26.9.2013 to reject the claim set up by the claimants and to uphold the stand of the railway administration, shall form part of the present order. In the result, these appeals are allowed and the orders impugned in the two appeals, are set aside. There is, however, no order as to costs. Let the lower court records received in the respective appeals, be returned to the Railway Claims Tribunal, Patna Bench, Patna forthwith. SKPathak/- (Jyoti Saran, J)