Kalyan Rai Surana JUDGMENT
Kalyan Rai Surana, J.
1. Heard Mr. B. Sarma, the learned Standing Counsel appearing for the Railways, the appellant herein. Also heard Ms. M. Sharma, the learned Counsel appearing for the respondent.
2. This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 is directed against the judgment and order dated 30.07.2010, passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati in Application No. OA. 138/2002(Old)/OA-I/GHY/2002/0138(New). The appellant is the respondent in the said claim application, which was filed by the respondent.
3. The case of the respondent in the above referred claim application was that a consignment of sugar was booked on 26.10.2000 from station called UGR to NGC station under RR No. 257847. It was projected that the respondent was the owner of goods, holding legal title in terms of Section 74 of the Railways Act, 1989. The said consignment was said to be booked in safe, sound and secured condition under the "Railway Risk" rate after meeting all legal and statutory inspections as per Railway Rules. It was projected that the consignment had reached the destination station with undue delay in transit. It was projected that at the time of unloading, the wagon seals and card labels were absent and that the doors were having big gaps and the stacks were in disturbed condition and the wagon was found in a broken and damaged condition with cut holes. On unloading there was a shortage, which was stated to be recorded in the "unloading tally book". The Chief Goods Supervisor at New Guwahati Station was informed about such shortage by letter dated 10.11.2000, with a request to issue short delivery certificate. However, such certificate was not issued because the goods were booked under "said to contain" railway receipt remarks. In the claim application, it was mentioned that calculation of claim was 1,313 kg. i.e. 13 bags sugar found short received X Rs. 17/- per kg. = Rs. 23,321/-. The said sum was claimed along with interest at the rate of 18%. It was stated that the loss occurred in the case was caused due to gross negligence and misconduct on the part of the appellant herein and that they were guilty of breach of contract, malfeasance, misfeasance and that they are liable to compensate for the loss suffered by the respondent herein with full cost and interest. The said application under Section 16 of the Railway Claims Tribunal Act, 1987 was filed on 30.04.2002.
4. The appellant herein had entered appearance as the respondent in the claim petition on 01.11.2002 and written statement dated 01.11.2008 was submitted on 05.01.2010. On 14.06.2010, while the appellant's witness had suited an affidavit dated 22.04.2010, the learned counsel for the respondent filed a prayer for discovery of following documents under section 18(3)(b) of the Railway Claims Tribunal Act, 1987 read with Rule 20(b) of Railway Claims Tribunal (Procedure) Rules, 1989:-
i. Original Forwarding Notes which our consignor executed in terms of IRCM-Vol-II of 1991 Rule No. 1402 read with Section 64 of Railway Act, 1989.
ii. Loading Tally book of booking station meeting compliance of IRCM-Vol-II of 1991 Rule No. 1512 & 1513.
iii. Original Railway receipt submitted by us at the time of delivery at the destination station.
iv. Seal and card labels of destination point meeting compliance of IRCM-Vol-II of 1991 rule No. 1570, 1578(a) 1713 and 1714 read with Railway Circular bearing No. C/65/O/69/ID dated 22.04.1975.
v. Copy of unloading tally and Delivery deficiency massage of destination point meeting compliances of IRCM-Vol-II of 1991 rule No. 1715, 1716, 1718, 1720 and 1721.
vi. All records about the movements of the wagons during Railways transit meeting compliance under section 95 and 97 of Railway act 1989 read with IRCM-Vol-II of 1991 rule No. 2124.
5. The LCR shows that as per order dated 14.06.2010, the learned Tribunal had passed an order to the effect that - "Applicant's counsel files prayer for discovery documents. Put up on 26.07.2010."
6. The learned Tribunal by an order dated 26.07.2010 framed issues on separate sheet; which were:-
i. Whether notice U/s. 106 of The Railway Act, 1989 was served to the respondent Railway in time?
ii. Whether the respondent proves that they have delivered the consignment to the applicant at the destination station?
iii. Whether the applicant proves that they have received the consignment short at the destination?
iv. Relief and order?
7. In respect of issue No. 1, the learned Tribunal had held that the goods were booked on 26.10.2000, and that the notice dated 20.11.2000 was acknowledged by the respondent on 20.11.2000. Therefore, notice was served on time. In respect of issue No. 2, it was held that in support of their contention the appellant herein did not produce the original RR, forwarding note, transit report and seal card labels, which were requested by the respondent herein in their prayer dated 14.06.2010. However, the appellant herein had submitted one affidavit where they had mentioned that the consignment was booked under 'said to contain', loading was not supervised by railway staff, loaded directly from truck to wagon, wagon sealed and riveted in presence of the sender and that regarding supply of documents, it was stated that these were preserved for 6 (six) months only and in this distant date, it was not possible to supply the documents (Seal Card Label), etc. Hence, it was held that the appellant herein had failed to prove that they had delivered the consignment intact at the destination. In respect of issue No. 3, it was held that the letter for issue of short certificate, notice, application, affidavit and prayer for discovery of documents submitted by the respondent herein proved that the appellant herein did not deliver the entire consignment at the destination station to the respondent herein. Hence, in respect of issue No. 4, the claim of Rs. 22,321/- was allowed along with the interest at the rate of 6% from the date of the filing of the claim application. The appellant was directed to make payment within 90 days from the date of the order, failing which, the amount would carry interest at the rate of 7%. In addition, the appellant was directed to pay proportionate cost of application fee of Rs. 1,158/- and Legal Practitioner's fee of Rs. 1,224/-.
8. The learned counsel for the appellant has submitted that the railway receipt
issued in this case showed that the consignment was booked on the condition of "said to contain" basis, as such, it cannot be construed as if the goods booked "contained" the quantity as mentioned in the railway receipt. It is submitted that the loading of goods and the wagon was not supervised by the Railway's staff and the consignment of sugar was loaded directly from the truck to the wagon. It is submitted that it cannot be assumed that there was any shortage of sugar at the time of delivery of consignment because the respondent had not proved the weight of sugar actually loaded. It is submitted that the Railway receipt contained the necessary particulars that are recorded in the "forwarding note". Hence, the non-production of the "forwarding note" cannot be said to be fatal. The learned Standing counsel for the appellant had referred to the various provisions of the Indian Railway Commercial Manual Vol. II, issued by the Ministry of Railway (Railway Board) (hereinafter referred to as "IRCM- II" for short).
9. It is further submitted that there was no initial complaint that the goods contained in wagon was not received at the destination station under "rivet intact condition". The only allegation was of shortage of quantity of sugar at the time of delivery. Therefore, there was no requirement for the Railway Administration to preserve the "seal and card label" or "rivet intact condition report" beyond the prescribed period of 6 (six) months, after which it is destroyed. It is submitted that adverse presumption cannot be drawn against the Railways for not producing the rivets, seals, labels etc., because a request for those were made beyond the time prescribed for their preservation. It is also submitted that the Railways are required to place thousands of wagons and hundreds of railway rakes for loading and unloading throughout the Country. Hence, it is not possible to supervise the loading of each wagon and each railway rake. Therefore, the burden of proof of having loading loaded on particular quantity of sugar was on the respondent, who did not discharge their burden of proof and the onus cannot be shifted on the Railways. In support of his submissions, the learned Standing Counsel for the appellant has placed reliance on the case of The Union of India Vs. M/s. P.P. Enterprises, MFA 272/10, decided on 21.03.2018.
10. Per-contra, the learned counsel for the respondent has meticulously referred to the various provisions of the Railways Act, 1989 including section 62 to 65 as well as IRCM-II Rules No. 1402, 1415, 1418, 1419, 1442, 1512, 1513, 1578, 1580, 1713, 1714, 1715, 1720, 1721 and 2106 to project that the Railways were required to adhere those rules and that it was their duty to permit the consignee of the goods to make remarks on the unloading tally books. Therefore, when the respondent found that the wagon was in a damaged condition and therefore, there was shortage of goods, the same was recorded in the "unloading tally book" for which, a prayer was made before the learned Railway Claims Tribunal for a direction to the appellant to produce such books. However, as those relevant documents were not produced, adverse presumption was rightly drawn against the appellant. In support of her submissions, the learned counsel for the respondent has relied on the judgment rendered by this Court in the case of (i) Union of India Vs. M/s. Ajmera Brothers, MFA 297/2010, decided on 31.08.2017, and (ii) Union of India Vs. M/s. Shri Ganeshar Traders, 2001 (2) TAC 203 (Mad).
11. The learned counsel for the respondent has submitted that under similar circumstances, this Court had dismissed the appeal of the Railways. By relying on the case of M/s. Ganeshar Traders (supra), it is submitted that by putting a rubber stamp on railway receipt to the effect that "loading was not supervised by railway staff" "direct loading", "loading and unloading by owner", etc., cannot absolve the railway of their liability to compensate the respondent, who was the owner of the goods, due to short delivery at the destination station. The learned Counsel for the respondent has also placed his reliance on the cases of Union of India Vs. M/s. P.P. Enterprises and other connected cases which was disposed of by this court by a common judgment and order dated 01.04.2014, as well as the case of Union of India Vs. M/s. Ganapati Enterprise, MFA 18 of 2009 decided on 02.03.2017 to project that as the seal and card labels were not produced, the matter was liable to be remanded back to the learned Tribunal so that the relevant records could be called for. The learned counsel for the respondent had also relied on the cases of M/s. Jyoti Four Mills Vs. Union of India, MANU/GH/0066/1984 : (1984) 1 GLR 276, the judgment dated 02.03.2017 passed by this Court in MFA 18/2009 (Union of India Vs. Ganpati Enterprise), and the case of Union of India Vs. Sunrise Traders, MANU/GH/0866/2015 : 2016 (1) GLT 447.
12. Having heard the rival submissions made by the learned counsel for both the sides, the following points of determination arise for decision in this case:
i. Whether there was any requirement of the Railway Administration to produce rivets, seals/labels etc. and unloading tally book in respect of consignments are booked at Railway risk under "said to contain" basis?
ii. Whether the impugned judgment is sustainable in facts and in law?
13. Both the points of determination are taken up together. As per the LCR received from the learned Railway Claims Tribunal, the written statement of the appellant is signed and verified on 11.08.2008. However, as per the order-sheet of the learned Tribunal, written statement was submitted on 05.01.2010.
14. The decision on issue No. 1, as decided by the learned Tribunal is examined.
The learned Tribunal had held that the notice dated 20.11.2000 was served on Railways on 20.11.2000. On a perusal of the said notice, it is seen that the said letter does not contain any reference to Section 106 of the Railways Act, 1989. However, the said letter can be construed to be information about the shortage of sugar at the time of delivery. Therefore, such a letter may be deemed to be a notice within the meaning of section 106(2) of the Railways Act, 1989.
15. The issues No. 2 and 3, a decided by the learned Tribunal are taken up together. The learned Tribunal had held that in support of their contention, the appellant herein had not produced the original RR, forwarding note, transit report and seal card label. It was held that those documents were requested by prayer dated 14.06.2010. Hence, it was held that the appellant failed to prove that they had delivered the consignment intact at destination. For the same reason, in respect of issue No. 3, it was held that the appellant did not ensure delivery of the entire consignment to the respondent herein at destination. In this connection, a perusal of the LCR shows that the said petition for discovery was presented on 14.06.2010. The said petition was directed to be put-up on 26.07.2010. The following order was passed by the learned Tribunal on 14.06.2010 and 26.07.2010:
"14.06.2010.
Both the parties are present.
P.O. file affidavit of Sri N.C. Das. Copy given to applicant counsel.
Applicant counsel file prayer for discovery documents.
Put up on 26.07.2010."
"Present: K.P. Maheswari, Ld. Counsels for the applicant.
Shri R. Ramchiary, PO and Shri A. Kumar, CLA for the respondent.
Counsel for the respondent filed extract of delivery book marked as R-1 taken on record.
Issues framed on separate sheet.
Argument heard. Order reserved."
16. Thus, it is seen that though the respondent herein had made a prayer for discovery of certain documents, no order was passed thereon, as such, no direction was issued on the appellant to produce the relevant documents. Thus, in the opinion of this Court, the finding recorded by the learned Tribunal on issues No. 2 and 3 that the appellant herein had not produced the documents is not sustainable.
17. Moreover, a perusal of the record shows that on 10.11.2000, a request was made by the respondent to Chief Goods Superintendent, New Guwahati BG Station, NF Railway for issuance of short/delivery certificate stating therein that 13 bags sugar short, loose and leaky condition. On the body of the said request letter, an endorsement was made by the Chief Goods Superintendent, New Guwahati that "Short Certificate not issued as the consignment booked S/C RR ... (illegible)." Thereafter, a letter dated 20.11.2000 was issued with a request to grant the respondent a personal hearing to solve the issue. There is no mention in this letter that it was a notice under section 106 of the Railways Act, 1989. However, as there is a complaint of short delivery, this letter can be deemed to be a notice by operation of section 106(2) of the Railways Act, 1989. The Divisional Commercial Manager, NF Railway, by a letter dated 29.11.2000, informed the respondent that the consignment were received at New Guwahati in original covered wagons with seals and rivets intact condition, as such, no short delivery certificate or delivery certificate can be issued as per railway rules. Once again, by Advocate's letter dated 01.12.2000, it was stated that the railway letter dated 29.11.2000 was illegal and a request was made to the Senior A.R.M., NF Railway for giving an opportunity of hearing. Thereafter, on 02.02.2002, by letter dated 02.02.2002, the respondent had written to the General Manager, Claim, NF Railway for an early settlement of the matter. This was followed by another letter dated 07.02.2002 for opening a compensation claim in the office of the NF Railway and settle the claim. All these time, the respondents had projected that there was a shortage of 1313 kg. Sugar, and claim was made @ Rs. 17/- per kg. amounting to Rs. 22, 321/-. However, for the first time in the claim petition, the respondent had projected that at the time of unloading, they found the wagon seals and card labels were absent and that the doors having big gaps and the stacks were in disturbed condition and the wagon was found in a broken and damaged condition with cut holes which suggested criminal interference en-route and that the shortage of the consignment was recorded in the unloading tally book. Thus, there was a change in stand of the respondent in the claim petition.
18. It is seen that under the provisions of Rule 1714 of IRCM-II, seals, labels, etc. Are to be carefully preserved for six months and then destroyed. It is seen that by letter dated 29.11.2000, the NF Railway had referred to the respondent's letter dated 06.11.2000, and the claim was repudiated. The respondent reiterated their request for hearing by letter dated 01.12.2000. However, the respondent remained dormant till 02.02.2002, when a letter for claim was issued, followed by another letter dated 02.02.2002. Thereafter, the claim petition was filed on 30.04.2002. The prayer to calling for some records was made on 14.06.2010.
19. In this connection, it is seen that in this case, no request was made to the NF Railway Administration by the respondent within the prescribed time of six months period to preserve the seal and card labels. In the opinion of this Court, unless either by a letter or by an order by the learned Tribunal, the Railway administration is communicated to preserve the relevant documents like, the original RR, forwarding note, transit report and seal and card labels, loading and unloading tally book, the Railway Administration was under no obligation to preserve and to produce such seals, labels, documents, before the learned Railway Claims Tribunal. In the considered opinion of this Court, merely because at one point of time, an allegation of shortage of consignment is made the Railway administration are not obliged to preserve the necessary documents for unlimited time. Rule 1714 of IRCM-II cannot be invoked if demand for preservation of such documents are not made within the period of 6 (six) months from the date of delivery of consignment. The court cannot be oblivious of the fact that Indian Railways transport huge volume of goods through large network of railway stations, sidings, transhipment points by engaging thousands of employees, as such, the competent authority must be informed in writing to preserve the seals, labels, documents, etc., for being called in claim proceedings before the Railway Claims Tribunal. Moreover, it is seen that the learned Tribunal did not consider the true copy (extract) of delivery book No. 32/50/9 marked as R-1, which was certified as per section 197 of the Railways Act, 1989. The submission of the said document is found mentioned in order dated 26.07.2010, the extract of which has been reproduced herein before. A perusal of the said document shows that there was an endorsement therein of - "No remarks", and it also contained endorsement as to "sd/- for Srhee (sic.) Gopal Enterprises". Therefore, it is seen that materials exist on record showing that no remarks was entered by anyone in the delivery book about shortage or pilferage, or wagon being cut and broken, doors of wagons having wide gaps, absence of seal and card labels, delay in transit, disturbed stacks, etc., as complained for the first time in the claim petition. Moreover, it is not the complaint of the respondent that their owner/staff, who had gone for unloading of wagons were not permitted to write any remarks in the delivery book, rather, in the claim petition, it was projected that the respondent had made remarks in the unloading tally book.
20. In the opinion of this Court, the Railways had no notice to produce the card and seal labels. The respondent had filed a petition dated 14.06.2010 for production of such document, i.e. after about 10 years. On such petition, the Railways had taken a stand that the documents were not available. This Court finds no infirmity in the said stand, which is not violative of Rule 1714 of IRCM-II. Hence, the drawing of adverse inference against the Railways is not found sustainable, more so, when no order was passed by the learned Tribunal on the said petition dated 14.10.2010.
21. Under the circumstances, notwithstanding that the goods were transported at "Railway Risk" which, as stated in the bar entails 20% excess charge to cover for the Railway risk, as the goods were booked under "said to contain" basis, the Railway Administration shall not be responsible for the loss. As stated earlier, there was no initial complaint that the wagon seals and card labels were absent, rivet seals were broken or that the door was in the open condition at the time of unloading and that stacks of goods were in disturbed condition with wagon body found broken, damage and having cut holes. Hence, this Court is constrained to hold that the said condition of the wagons having not been brought to the notice of the appellant, it cannot be concluded that the Railways were at fault for the short delivery of goods.
22. The Hon'ble Madras High Court, in the case of M/s. Shri Ganeshar Traders (supra), had held that it was the duty of the Railway authorities to supervise at the time of loading and therefore, the railway administration cannot escape from the responsibility by putting a rubber stamp or by making an endorsement in the railway receipt that the loading was not supervised by railways. It was held that the non- supervision of loading was utter neglect by railway administration and that their failure cannot be taken as a shelter to escape the liability. However, on facts, the present case is distinguishable from the facts of the case cited above, because in the facts in the cited case was that open delivery of consignment was taken and the surveyor also inspected the goods and joint survey report was subscribed both by the railway administration and the consignee and that it was proved that some bags were found in wet and damaged condition. Moreover, damage during transit was also proved.
23. The case of M/s. Jyoti Four Mills (supra), it was held by this court that the Railway Administration to be absolved of its liability under Section 73 of the Railways Act, 1890 (equivalent to Section 93 of the Railways Act, 1989), it was necessary that in the forwarding note, not only there should be a recording of the fact on defective and improper packing of the goods, it should be further recorded that as a result of such defective or improper packing, the goods are liable to damage deterioration leakage or wastage. In the opinion of this Court, the said finding is trite law in the subject. Therefore, in the opinion of this Court, the burden lies on the respondent to show that there was pilferage of the goods en-route. If there was an evidence of pilferage then the Railways Act, 1989 provides for open delivery under Section 81 of the said Act. In this case, the said provision was not taken recourse to. Therefore, at this stage, it would be impossible to hold whether there was evidence of pilferage of 1,313 kg. sugar transported by the appellant. Hence, reference to the aforesaid case is not found to help the respondent in any manner.
24. In the case of Sunrise Traders (supra), this Court had held that non-production of relevant documents by the Railways called for an adverse presumption under Section 114 Illustration (g) of the Evidence Act. In the present case in hand, it has been held that the learned Tribunal did not provide any opportunity to the appellant to produce the documents. On filing of the said petition for discovery on 14.06.2010, the learned Tribunal, without giving any opportunity to the Railway Administration to produce the documents, heard the claim petition on merit. On the date when prayer for discovery was made, 10 years from the date of delivery of consignment had lapsed. Under such circumstances, the adverse inference under section 114 Illustration (g) of the Evidence Act cannot be taken recourse to, as no order for discovery or production was passed, therefore, on facts, the present case is distinguishable with the facts of the case of Sunrise Traders (supra). Hence the said authority does not help the respondent. For the same reason, the facts of the case of the Ganpati Enterprise (supra) are also distinguishable because no opportunity was granted to the Railway Administration to produce the relevant documents. Moreover, there is no statement in the claim petition of what quantity of sugar was found shortage in how many bags of sugar. Therefore, in this case, bag-wise shortage was not proved. Hence, the said authority is also not found to be of any help to the respondent.
25. Therefore, the first point of determination is answered in the negative by holding that as the railway administration was not asked to preserve the relevant documents, prior to expiry of 6 (six) months from the date of delivery of consignment, there was no requirement of the Railway Administration to preserve and/or to produce the rivets, seal and card labels, loading, unloading tally book, etc. in respect of consignments are booked at Railway risk under "said to contain" basis.
26. It is seen that in this case, the shortage is being projected to be a loss of 1,313 kg. sugar. In this case, the respondent did not produce any beejuk, or did not tender any other evidence before the learned Tribunal to prove the record of the actual weight of sugar per bag. From the materials available on record, it does not appear that any prayer was made before the Railways for open delivery of consignment of sugar. Under the circumstances, when the Railways administration did not check the condition or weight of every bag of sugar before loading, this Court finds it impossible to concur with the finding by the learned Tribunal that the Railways was responsible for the shortage of 1,313 kg. sugar.
27. In view of the discussions above, this Court cannot concur with the finding by the learned Railway Claims Tribunal on issues No. 2 and 3. Hence, it is held that such loss and/or shortage of 1,313 kg. Sugar falls within the exception as provided under sub-section (g) and (h) of the Section 93 of the Railways Act.
28. Thus, in respect of issue No. 5, it is held that the alleged shortage of the 1,313 kg. sugar fell within the exception mentioned in Section 93 of the Railways Act. Hence, the Railways cannot be held to be responsible for compensating the loss amounting to Rs. 22,321/-. Accordingly, the computation/assessment of loss is also not found sustainable. The said finding by the learned Railway Claims Tribunal is hereby interfered with and is set aside.
29. Therefore, in view of the discussion above, the points of determination No. 2 is decided in the negative and in favour of the appellant by holding that the award of claim vide the impugned judgment and order dated 30.07.2010, passed by the learned Railway Claims Tribunal, Guwahati Bench, Guwahati, in O.A. 138/2002 (Old)/OA-I/GHY/2002/0138(New) is not sustainable on facts and in law.
30. Under the circumstances and in view of the discussions above, the appeal stands allowed. Consequently, the claim petition stands dismissed.
31. The Parties are left to bear their own cost.
32. Let the LCR be returned back.
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