Union of India v. M/s North East Iodized Salt (P) Ltd.

Judgment

17.08.2022 Page No.# 2/14 JUDGEMENT AND ORDER (CAV) Heard Mrs. U Chakraborty, learned Standing Counsel for the Railways and Ms M Sharma, learned counsel for the respondent.

2. This appeal is directed against the judgment and order dated 12/11/2010 passed by the learned Railway Claims Tribunal Guwahati Bench, Guwahati in Claim Application No. OA 35/2006 directing the appellant to pay compensation to the applicant/respondent along with interest from the date of the order till the date of actual payment along with the cost of the litigation and legal practitioners fee.

3. The case of the applicant/respondent was that a consignment of 32,894 bags of crystal common salt was booked on 04/06/2005 from Chirai (CHIB) to Dharmanagar (DMR), Tripura under RR No- 220443 and 220444 but at destination 3186 bags were delivered short by the appellant to the applicant/respondent. Notice u/s 106 was served by the applicant/respondent to the appellant. Thereafter the applicant/respondent filed a claim petition before the Railway Claims Tribunal, Guwahati Bench, Guwahati, stating thereon that the appellant is fully responsible for the shortage and, therefore, liable to make good the loss suffered by the applicant/respondent. The appellant as respondent against the said claim petition, filed a written statement raising certain objections i.e. they did not admit the service, validity and sufficiency of notice u/s 106 of the Railways Act, 1989 that the consignment was booked under the remark “said to contain” and the goods were directly loaded from truck to wagons Page No.# 3/14 and quality and quantity of bags were not checked by the railway staff as such railway administration was not responsible for shortage of delivery of goods at destination and prayed for dismissal of the claim petition with cost.

4. On examining the pleadings of both the parties the following issues were framed by the Tribunal – a. Whether the notice served u/s 106 of the Railways Act, 1989 by the applicant to the respondent was in time and maintainable? b. Whether the respondent proves that they have delivered the entire consignment to the applicant at the destination? c. Whether the applicant proves that they have received the consignment short at the destination? d. Relief and order.

5. The Railway Claims Tribunal after hearing both sides and perusal of documents available on record had come to the conclusion that the receipt of notices dated 27/10/2005 and 22/11/2005 u/s 106 of the Railways Act, 1989 were acknowledged by the present appellant on 28/10/2005 and 23/11/2005 and accordingly delivery certificates were also issued, as such hold that notices were served to the appellant in time and the entire consignment was not delivered by the appellant at the destination and directed the appellant to pay the compensation for the short delivery of the consignment to the applicant/respondent. Page No.# 4/14

6. It was urged by the learned counsel for the appellant that all the consignments were originally booked from CHIB to DMR i.e. forwarding station has booked the consignment under Railway receipt in which 32896 bags of crystal common salt were loaded with remark “said to contain” under railway receipt wherein it has been clearly mentioned that the consignments were loaded directly from the truck to wagons and quantity and quality as well as bags were neither checked nor counted by the staff of the railway administration. Hence, for such discrepancy and shortage at destination station, the railway staffs are not at all responsible and as such no claim will be entertained and the appellant is not liable for such alleged shortage of consignment.

7. It is also the submission of the learned counsel for the appellant that the railway claims Tribunal had failed to appreciate the provisions of section 65 of the Railways Act, 1989 under which the appellant was not at all liable to issue the short certificate and make payment of compensation since the respondent / consignee himself accepted the consignment delivered to it without any protest/objection as per Unloading Tally Books for which railway administration is not liable for any such alleged damage.

8. Learned counsel for the appellant further contended that the claim application is not maintainable as there was violation of the provision of section 65 read with section 108 of the Railways Act, 1989 which was on its own risk and not the risk of the railway administration as such the railway administration cannot be burdened with the additional liability of accounting for shortage of goods as a result of which there was no prima facie case for the respondent/applicant to claim compensation. In support of her submission learned counsel for the appellant has placed reliance on the following case laws – Page No.# 5/14 i. AIR 1956 Madras 176 (Union of India vs. S.P. L. Lekhu Reddiar and another) ii. AIR 1995 Orissa 298 (Union of India vs. Industrial Development Corporation of Orissa) iii. (2002) 1 GLT 605 (Sree Niwas Basudeo vs. Union of India and others) iv. AIR 1970 SC 843 (Hari Sao and another vs. State of Bihar) v. AIR 2006 Bombay 109 (M/s Pawan Oil Industries vs. Union of India) vi. Union of India vs. M/s Jayprakash Associates Ltd vide case no MFA Case No. 36 (2011) [Gauhati High Court] vii. Union of India vs. M/s P.P. Enterprises vide MFA case no 272 (2010) [Gauhati High Court] viii. Union of India vs. Bajaj Trading Company vide MFA Case No. 20/2012 [Gauhati High Court]

9. On the other hand, learned counsel for the respondent Ms M. Sharma has submitted that the consignor M/S Kavita Salt suppliers had booked total 32894 bags of crystal common salt containing 75 kg in each bag and the same were accommodated in 40 railway wagons Page No.# 6/14 under the invoice no – 04 and 05 vide railway receipt no 220443 and 220444 dated 04/06/2005 from Chirai (CHIB) to Dharmanagar (DMR) under “railway risk rate” and on unloading the consignee i.e. M/s North East Iodized salt had received short delivery of total 3186 bags of crystal common salt for which the railway administration at destination point Dharmanagar issued necessary delivery certificates for both the invoices no 04 and 05 vide railway receipt no 220443 and 220444 dated 04/06/2005. It is also submitted that as per the survey report the consignor M/s Kavita Salt suppliers had loaded total 32894 bags of crystal common salt about 75 kg in each bag weighing total of 2467.050 MT.

10. Learned counsel for the respondent also contended that the booking point Chirai supervised the loadings and all their supervisions had properly recorded the details in the forwarding note which reveals that the loadings were supervised by the railway site under the columns:- I checked by II weighed by III loaded by and IV invoiced by, as such the appellant is liable to pay the compensation to the respondent for the short of delivery. In support of her contentions learned counsel for the respondent cited the following case laws – a. Union of India vs. M/s Ganapati Enterprise Kyal Market vide GHC MFA case no Page No.# 7/14 b. Union of India vs. Sunrise Traders vide GHC MFA no 4/2010

11. The appellant submitted that the loading of the goods was not checked and supervised by the staff of the railway administration and therefore, no responsibility for short delivery of the goods handed over to it could be placed upon the railway administration. The appellant further submitted that the railway receipt bore the remarks such as, ”said to contain”, and “SWA”, which clearly indicated that the railway administration did not accept as correct the quantity of common crystal salt as shown in railway receipt, as loaded in Chirai (CHIB) and handed over to it for being delivered at Dharmanagar, Tripura. It was, thus, submitted on behalf of the appellant that the appeal should be allowed by setting aside the order of the Claims Tribunal.

12. I have considered the submissions of the learned counsel for both the parties. I have carefully gone through the impugned order and also the record of the application before the Railway Claims Tribunal.

13. The only point that arises for my determination is- Whether the Railway Claims Tribunal committed any error in allowing the claim for compensation in favour of the respondent.

14. In the case of Union of India –Vs- Jugal Kishore Khandelwal, reported in AIR 1998 Orissa 113, it was held that the shortage certificate given by the railway administration at the delivery station does not amount to admission of actual shortage in delivery of the loaded goods. The case of Union of India –Vs- B. Jugal Kishore Khandelwal–(supra) has been based on the fact that the goods were delivered under certain conditions written on the railway receipt. First condition was denoted by the remark- “said to contain” certain quantity Page No.# 8/14 of material. The remark- “said to contain” has been interpreted by the learned Single Judge of Orissa High Court as not constituting any acceptance on the part of the railway administration that the quantity shown in the railway receipt was actually received for transportation to the destination point. The second condition was indicated by another remark to the effect that “loading not supervised” by the railway staff and this remark together with the former remark has been interpreted by the learned Single Judge, Orissa High Court, to be constituting no admission on the part of the railway administration of acceptance of that much quantity of goods as has been shown in the railway receipt, for transportation to the destination point. In the instant case also, the facts are similar. If we look at the railway receipt, vide Exhibit – R 1, it can be seen that this receipt contains both the said remarks.

15. Section 65 of the Indian Railways Act, 1989 lays down that in case, consignment in wagon load is not checked by an authorized railway servant and the statement to that effect is recorded in such railway receipt by him, the burden of proving the weight stated therein shall lie on the consignor, consignee or the endorsee. In this case, there is no such statement available along with the railway receipt or also any endorsement in the said receipt. Therefore, burden to prove the weight stated in the railway receipt lay upon the consignor, i.e., the respondent in this case and not the appellant. The respondent, however, did not discharge it by adducing necessary evidence and, therefore, there was no way the claim application could have been granted by the Tribunal.

16. Even though shortage receipt was issued by the railway administration at the delivery station, it did not amount to acceptance of shortage of delivery by railway administration. It Page No.# 9/14 was a mere statement of fact of what quantity was delivered at the delivery station and since no evidence was brought on record by the respondent to prove the fact that certain quantity of common salt was placed in the custody of the appellant for being its transported to Dharmanagar, as required under proviso to Section 65 of the Railways Act, 1989, the claim for compensation cannot be taken into consideration.

17. In the case of Union of India –Vs- Roop Narayan; reported in AIR 1997 Rajasthan 123, it was held that since there was no acceptance on the part of the railway administration of the quantity of goods loaded at loading point, the railway administration was not liable for damages on account of any shortage in delivery at destination point. In the said case, there were various remarks incorporated in the railway receipt, the relevant of which were – “said to contain and “SWA”, indicating sender’s weight was accepted for the purpose of calculation of freight at the forwarding station. Interpreting these remarks, the learned Judge of Rajasthan High Court held that there was no admission on the part of the Railways that the articles in number, as mentioned in railway receipt, had in fact, been loaded.

18. Section 73 of the Indian Railways Act, 1890 provides for the general responsibility of the railway administration as a carrier except from any of the causes specified therein. In the present case, in order to make the railway administration liable for non-delivery of 3186 bags of crystal common salt, the applicants are bound to prove that their consignor owned 32,894 bags of crystal common salt and that they were actually entrusted to the railway administration for carriage. The applicants were endorsed consignees. They have produced Page No.# 10/14 the railway receipt, vide Exhibit-R1, endorsed in favour of the applicants with the remark “said to contain” meaning thereby not accepting the number of bags delivered for carriage. Further, in Exhibit- R1, with the endorsement “SWA” only shows that the weight of the goods given in the railway receipt was not accepted by the railway administration. It is also noticed in railway receipt, vide Exhibit – R 1 that another caption was given that P-7 and P-11, not complied with directly loaded from truck to wagons, quality and quantity and bags not checked by railway staff. On the basis of the materials available on record, I have no hesitation that the railway receipt, vide Exhibit -R1, issued to the consignor in this case is qualified with the statement that the wagon was “said to contain” 32,894 bags of crystal common salt.

19. There could be no presumption that 32,894 bags of crystal common salt were put in the wagons for carriage, inasmuch as, the railway administration did not accept that 32,894 bags of crystal common salt were loaded and the railway receipt only contains the endorsement-“said to contain” 16,440 bags uncrushed crystal common salt for iodization plant. As already stated above, in order to make the appellant liable for the loss of 3186 bags, the owner has to prove that 32,894 bags of crystal common salt were put on rails. They also have to prove by letting in evidence, as to how and when the consignor acquired 32,894 bags of crystal common salt and the price paid for the same and the exact quantity, the consignor loaded in the wagon.

20. The consignor has not been examined in this case as a witness. The applicants have not let in evidence to prove that the consignor owned 32,894 bags of crystal common salt by producing consignor’s purchase bills. The applicant has not examined any witness to prove that 32,894 bags of crystal common salt were actually loaded in the wagon. Page No.# 11/14

21. Though it is true that this case was taken up by the Railway Claims Tribunal, as a summary trial, but to some extent, without examining any witness, the factual position cannot be determined.

22. In view of the legal and factual position, as discussed above, I have no hesitation in accepting the contention of the learned counsel for the appellant that even assuming that 3186 bags of crystal common salt were stolen from the wagon, due to negligence or carelessness on the part of the appellant, in order to make railway administration liable for short delivery, the applicant/respondent would have to prove that 32,894 bags of crystal common salt were put on rails and that the applicant has not proved by acceptable evidence that their consignor owned 32,894 bags of crystal common salt and delivered the same to the railway administration for carriage. The applicant-respondent has also not established that the goods in dispute were loaded under the supervision of the railway staff. In support of their case, the applicant/respondent had submitted one invoice of Kavita Salt Suppliers, who supplied uncrushed crystal common salt for iodization plant, containing 32,894 bags, having 75 kgs in each bag, vide Invoice Nos. 220443 and 220444, dated 04.06.2005, from Chirai to Dharmanagar. But from the said Invoice, it cannot be ascertained whether 32,894 bags of crystal common salt were put on the railway wagons at the time of loading.

23. The stand of the applicant/respondent was that the consignment was not booked on “said to contain” basis, rather on railway risk, and the endorsement – “said to contain”, was wrongly made on the railway receipt, but the respondent had failed to prove the fact that the Page No.# 12/14 remark-“said to contain” was wrongly endorsed by adducing any evidence. It is noticed that the railway receipt vide Exhibit- R1 is having both the remarks-“said to contain” and “SWA”, which I have already discussed above. Under such backdrop, it cannot be said that the consignment was not booked on “said to contain” basis.

24. In the case of Iddar –Vs- Aabida & Another; reported in (Appeal Crl. 934 of 2007) and Rama Paswan and Others –Vs- State of Jharkhand, reported in 2007 Crl. L.J 2750, Hon’ble Apex Court has held that in weighing evidence the Court can take note of the fact that the best available evidence has not been given and can draw an adverse inference.

25. Another important piece of evidence is forwarding note, which is not available in the record. Noting the provisions relating to forwarding note and railway receipt, it was held in the case of Union of India –Vs- Roop Narayan(supra), the forwarding note is a primary evidence and a railway receipt is secondary evidence for the reason the railway receipt is prepared on the basis of forwarding note and not otherwise.

26. In the decision, reported in AIR 1956 Madras 176 (Union of India –Vs- S.P.L. Lekhu Reddiar), it was held that while goods were loaded in the wagon by the sender and not by the railway servants and the information given by the sender is accepted as correct for the purpose of charging freight and receipt is granted and at the destination station, shortage is detected, it is for the plaintiff to establish as to what actually were the goods delivered to the railway for carriage at the forwarding station.

27. In another case, South Eastern Railway –Vs- Epari Satyanarayana, reported in AIR 1961 Orissa 141, it was held that the railway receipt conveys no admission by the railway administration that the weight of the consignment as shown in the receipt or the Page No.# 13/14 description of goods as furnished by the consignor is correct, in the absence of evidence of actual booking of the goods as shown in the railway receipt, the Railway is not liable for short delivery, where goods are received in sound and intact condition. It is for the consignor or the consignee to adduce evidence as to the actual booking of the goods as these facts are within their special knowledge.

28. In the decision of Union of India –Vs- Chotelal Shewnath Rai, reported in AIR 1973 Patna 244, it has been held that where there is no evidence to prove the actual weight of the goods loaded in the wagon and the loading had been done at the dispatching station by the consignor, the railway administration is not liable for short delivery, detected at the destination. From the mere mention of a particular weight in the railway receipt and the forwarding note for the purpose of calculating the freight charge, no admission on the part of the railway as to the correctness of the goods loaded can be made out to fix up the liability.

29. In the case of Orient Paper Mills Limited –Vs- Union of India, reported in AIR 1984 Orissa 156, it was held that in a suit for damages for loss of goods against the railway administration, the onus lies on the plaintiff to establish the actual loading of the goods for the loss of which, the claims have been made. In this regard, the learned Court noted the provisions of Rule 1513 of the Indian Commercial Railways Manual, which reads as follows:- “The outward tally book is an important and initial record of actual loading of consignments and is likely to be referred when responsibility is to be fixed in the event of any package found missing at repacking and transshipping points or at destination station.”

30. In view of the above discussion, it is summed up that if the railway receipt contains the Page No.# 14/14 ”said to contain” remark, it does not amount to admission on the part of the Railway Administration that the number of articles had in fact been loaded. But when responsibility has to be fixed in the event of any package found missing at destination station, then examination of outward tally book and forwarding note is necessary, but in the case in hand, neither the outward tally book nor the forwarding note is available in the record so as to come to the conclusion that the consignor loaded 32,894 bags of crystal common salt in the wagon.

31. Under the facts and circumstances of the case, I, thus, hold that- 1) The consignment in question was booked on “said to contain” and “SWA” basis, as such, railway administration is not liable to pay compensation to the applicant/ respondent. Hence, the order passed by the learned Member, Railway Claims Tribunal, Guwahati Bench, Guwahati, dated 12.11.2010, in Claim Application No. OA 35/2006, is set aside. 2) Appeal is allowed. 3) There is no order as to cost(s). 4) LCR be returned. JUDGE Comparing Assistant