Judgment · High Court · 2012

The judgment and order dated 05-06-2002, passed by the Railway Claims Tr ibunal, Guwahati Bench in Application No. 1452 of 1998, has been challenged by t he appellant in this appeal. By the impugned judgment and order dated 05-06-2002, the learned Tribuna l rejected the claim application of the appellant. The claimant in his applicat ion stated that a consignment containing 287 bags was booked from Bareilli Junct ion to Silchar under Invoice No. 157, RR No. 740219 dated 28-09-1997. He claime d compensation to the tune of Rs.20,128/- for short supply of goods in the said consignment. The short was detected while unloading and the Railway Authority i ssued a short certificate mentioning the actual delivery position. On the basis of a disclaimer letter from the actual consignee i.e. M/s A shoka Trading Company in favour of the claimant/appellant, the claim petition wa s filed by M/s Shree Gopal Enterprises. The Respondent/Union of India represented by the General Manager, NF Railway resisted the claim of the claimant by filing a written statement alle ging inter alia, that the Railway is not responsible for any shortage. The shor tage was on account of omission and commission on the part of the consigner. On the basis of pleadings, the learned Tribunal framed the following iss ues:- (1) (2) to and relief? Whether the claim application is maintainable in its present form? To what amount of compensation, if any, the applicant is entitled The learned Tribunal observed that the consignment, in question, was boo ked by Kesar Enterprises, Baheri in favour of self and as per the reverse side o f RR, it was endorsed to M/s. Shree Gopal Enterprise and then, it was again endo rsed to M/s Ashoka Trading Company. M/s Ashoka Trading Company ultimately took the delivery of the consignment. Therefore, M/s Ashoka Trading Company has the t itle as per Section 74 of the Railways Act, 1989. The appellant, M/s Shree Gopal Enterprise had no title over the consignm ent and a mere certificate to the effect that M/s Ashoka Trading Company has no objection if the amount paid to the applicant. The disclaimer does not confer ti tle to the applicant, it was observed. The judgment and order has been impugned on the ground that there was no pleading in the written reply filed on behalf of the Union of India/respondent, herein, that the claim is bad as per Section 74 of the Railways Act. The learned Tribunal ought to have considered that M/s Ash oka Trading Company authorized the applicant/appellant to claim compensation. During hearing, the applicant filed an affidavit and the letter dated 16 -12-1999, issued by M/s Ashoka Trading Company authorizing the applicant/appella nt to claim compensation. The certificate of disclaimer as well as the affidavi t are sufficient to prove the title of the appellant/applicant to claim compensa tion. The provisions contained in Section 74 of the Railways Act, 1989 are ena bling provisions and the said provisions have been wrongly construed by the lear ned Tribunal. The leaned counsel appearing for the appellant has submitted that the co nsignment was neither weighed nor counted at the relevant point of time and ther e was specific plea of the respondent that the consignment involved in this case was booked by the sender at forwarding station under remarks in the railway rec eipt (cid:28)said to contain (cid:29), (cid:28)SWA (cid:29), (cid:28)L/U (cid:29), the bags were not counted and packing cond ition were not complied with. In this regards, the learned counsel has relied upon a case of Shreeniwa s Bsudeo Vs. Union of India and Others, reported in 2002(1) GLT 605. In the cit ed case, the forwarding note and railway receipt clearly indicate that the Railw ay Authorities never accepted the weight of the bags declared by the sender at t he time of booking. The weight (cid:28)said to contain (cid:29) was acted upon only for the pu rpose of calculation of freight and it was held that under no circumstances, the remark (cid:28)said to contain (cid:29) can be interpreted as (cid:28)contained (cid:29). In the aforesaid ci ted case, the claim of the claimant was rejected on the ground that the rice boo ked at the booking station was not weighed by the Railway staff and the weight i ndicated by the sender was accepted only for the purpose of calculation of freig ht. Herein this case, it is not clear from the impugned judgment that the ba gs were not counted at the booking station. Admittedly, the shortage was detect ed at the time of delivery of the consignment and the short certificate was issu ed by the Railway Authority. By issuing the short certificate, the Railway Authority accepted that th ere was (cid:28)short (cid:29) delivery of the consignment. Section 74 of the Railways Act, 19 89 says that the property in the consignment covered by a railway receipt shall pass to the consignee or the endorsee, as the case may be and on the delivery of such railway receipt to him, he shall have all the rights and liabilities of th e consignor. Herein this case, M/s Shree Gopal Enterprise i.e. appellant and M/s Asho ka Trading Company were the consignees or endorsees. However, the consignment w as delivered to M/s Ashoka Trading Company and on the basis of the disclaimer le tter, M/s Ashoka Trading Company, the applicant, claimed title over the consignm ent. Section 19 of the Railways Claim Tribunal Act, 1987 authorizes a person to make an application to the Claims Tribunal and the person may either appear in person or take the assistance of a legal practitioner of his choice to presen t his case before the Claims Tribunal. From Section 19, it appears that it is not incumbent on a person to appe ar himself to present his claim petition. Even if M/s Ashoka Trading Company, as a consignee, has title over the consignment, it can very well put its claim thr ough ots legal practitioner when the consignment was endorsed both in favour of the claimant/applicant M/s Shree Gopal Enterprise as well as M/s Ashoka Trading Company, prima facie, is the proof that the applicant, M/s Ashoka Trading Compan y and M/S Gopal Enterprise had title over the consignment. It is crystal clear from the observations made by the learned Tribunal t hat the consignment, in question, was book by M/s Kesar Enterprise, Behari Kesar Enterprises, Baheri in favour of self and as per the reverse side of RR, it was endorsed to M/s. Shree Gopal Enterprise and then, it was again endorsed to M/s Ashoka Trading Company by M/s Shree Gopal Enterprise, who ultimately took the de livery of the consignment. As M/s Ashoka Trading Company took the delivery of t he consignment, the learned Tribunal with the help of Section 74 of the Railways Act held that the property in the consignment passed on to M/s Ashoka Trading C ompany. There is no dispute that the property in the said consignment was delivered to M /s Ashoka Trading Company and accordingly consignment passed in favour of M/s As hoka Trading Company but it was M/s Shree Gopal Enterprise, who endorsed to deli very of the property to M/s Ashoka Trading Company and when it was found short d elivery, M/s Ashoka Trading Company submitted the disclaimer letter to M/s Shree Gopal Enterprise and on the basis of the same, M/s Shree Gopal Enterprise filed the application claiming compensation. The learned Tribunal wrongly construed the meaning of Section 74 and came to a c onclusion that the applicant/appellant is not entitled to claim any compensation . In view of the above, I find that it is fit case to remand back for disp osal. Accordingly, the judgment and order dated 05-06-2002, passed by the Railw ay Claims Tribunal, Guwahati Bench in Application No. 1452 of 1998, is hereby se t aside and quashed. The matter is remanded back to the learned Tribunal for disposal in accordance with law. This appeal stands allowed and disposed of.