Gauhati High Court
Page No.# 1/19 vs Union Of India Gm on 27 June, 2025
Page No.# 1/19
GAHC010130382013
2025:GAU-AS:8856
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/85/2013
M/S. SUNRISE TRADERS
FANCY BAZAR, H.B.ROAD, GUWAHATI, ASSAM, PIN-781001.
VERSUS
UNION OF INDIA GM, NF RLY
MALIGAON, GUWAHATI, ASSAM, PIN-781011.
Advocate for the Petitioner : MR.B MAHESHWARI, MR. DIVYANSH RATHI,MR. K P
MAHESWARI,MR.K P MAHESWARI,MR.A GOYAL
Advocate for the Respondent : SC, NF RLY, MR.A K SARKAR,MS.M CHATTERJEE,MS.U
CHAKRABORTY,MSK KALITA,MS.M PHUKAN
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
Date of Hearing : 06.03.2025.
Date of Judgment : 27.06.2025.
JUDGMENT AND ORDER(CAV)
1. The appellant in this case is M/s Sunrise Traders and the respondent is The
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Union of India represented by the General Manager, NF Railway.
2. Heard learned counsel Mr. D. Rathi for the appellant and learned Special
Senior Railway Advocate, Ms. U. Chakrabarty for the respondent.
3. The appellant’s case in brief is that on 21.05.2010, by Invoice No. 118, and
Railway receipt No. 212051816, 883 packets of potatoes weighing 45 kgs each
were booked from (Delhi Kishanganj) DKZ to (New Gauhati) NGC. At
destination, it was found that the potatoes in the packets were damaged and
rotten and unfit for human and animal consumption. The potatoes got damaged
owing to the delay in delivery and the respondent was thus liable to pay
compensation. Moreover, Railways collected Rs. 9,500/- towards demurrage
charge and the appellant is entitled to realize the demurrage charges from the
respondent. 883 packets containing 4 quintals of potatoes were valued at Rs.
1,200/- per quintal and the respondent is thus liable to pay a compensation of
Rs. 4,80,000/-.
4. On finding the potatoes in utterly damaged condition, the appellant
submitted their claim for non-delivery of goods vide the claim letter dated
03.06.2010 enclosing the original Railway receipt to the Office of the G.M.
(Claim), N.F. Railway and the same was acknowledged by the Railways vide
letter dated 09.06.2010. Reminders were also sent for tracing the goods to the
Railways vide letters dated 14.06.2010 and 21.06.2010. The information about
the arrival of the goods was received after about 40 days of transit. The
appellant/applicant then vide letter dated 29.06.2010 requested the Railways to
return the original RR to enable them to take delivery of the goods at
destination point with instructions to the goods clerk for delivery of goods free
of DC and on proper assessment of damages, the Railways returned the RR vide
Railway letter dated 29.06.2010 without any instructions to CGS/NGC about
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delivery of goods free of DC and for assessment of loss for the damaged goods.
5. Finally, the Railways granted delivery and loss assessed by a team of
Railway Officers vide the assessment report certificate dated 01.07.2010 and it
was reported that on visual examination by DCM/GHY and Food Inspector/NGC,
Food Inspector who certified that 883 bags of rotten potatoes were found in
damaged condition and unfit for human and cattle consumption, vide letter
L/H/7/F.1/10 dated 01.07.2010. On the contrary, the Railways forced the
applicant to pay Rs. 9,500/- which was paid vide MR No. 882269 dated
04.07.2010. As the DC collected by the Railways was utterly illegal, the
applicants have claimed Rs. 4,80,000/- + Rs. 9,500/- = Rs. 4,89,500/- on
account of the negligence and misconduct of the Railway authorities.
6. The respondents filed written objection contending inter alia that the validity
of service and sufficiency of notice under Section 106 of the Railways Act is not
admitted by the respondent as the amended claims notice dated 12.07.2010
was served by an individual who affixed his initials only on behalf of the
claimants, Sunrise Traders without any power of attorney. It is averred that the
demurrage charges were correctly realized.
7. It is argued on behalf of the Railways that the consignment was booked by
the sender at Forwarding station under the remarks in the Railway receipt as:-
“Wagon directly examined, found fit and water tight, train load conditions
complied with, loaded direct from truck to wagon and loading not supervised by
Railway staff, Bags not of uniform size, conditions of contents not checked by
Railway staff, “said to contain” packaging condition outer knot, OR”
8. Learned counsel for the respondents laid stress in her argument that the
consignment was booked and loaded at the “owner’s risk” rate under Section 97
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of the Railways Act, and as such the respondent is not liable to pay any
compensation. The nature of relief as sought for in Paragraph-7(ii)(a) of the
application are not admitted by the respondent. The respondent has issued
letter to the applicants for furnishing beejuck/sale invoice and other relevant
documents but the appellant did not comply. Violation of Rule-7(ii)(b) of the
Railway Rules is not admitted as there was no negligence or misconduct on the
part of the respondents. It is averred that the applicant had purchased the
goods at New Delhi but the market value of the consignment has been
furnished at Guwahati which is not applicable to prove the valuation and thus
the claim petition is not maintainable.
9. Learned counsel for the respondent further emphasized through her
argument that the RTI information dated 28.07.2010 collected by the applicant
proves that the packaging condition was not complied with proof of the remarks
available on the Railway receipt and as such the Railways is not liable to refund
any payment to the applicant under Section 93(f) of the Railways Act. It is
further contended that the applicant has failed to prove the value of the
consignment as per provisions of Section 65(2) of the Railways Act.
10. An issue was framed by the Tribunal relating to the issue raised by the
respondent that no proper notice under Section 106 of the Railways Act was
served.
11. On this issue, it was held by the Tribunal that the booking was on
21.05.2010.
(i) Exhibit-A1= R1 is the copy of the Railway receipt
vouchers for the same which depicts that the forwarding note is
dated 08.05.10 and the invoice is dated 20.05.2010. The
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consignor as per Exhibit-A1= R1 is R.D. Mukunda & Co Freight
Forwarder, Office No. 2, Goods Office, DKZ and the consignee
was Karan Traders.
(ii) Exhibit-A2 is the copy of the letter dated
03.06.2010, issued to the General Manager, Claims, N.F. Railway
together with the Railway receipt stating that the consignment
booked by original of Exhibit-A1= R1 was not delivered till the
date of forwarding the letter.
(iii) Exhibit-A3 is the acknowledgement dated
09.06.2010 issued by the Chief Claims Officer, N.F. Railway
acknowledging the receipt of Exhibit-A2.
(iv) Exhibit-A4 is a letter issued to the GM, NF
Railways on 14.06.2010 referring to Exhibit-A2 requesting for
tracing out the wagon and releasing the same.
(v) Exhibit-A5 is the copy of a letter addressed to the
respondents by the applicant/appellant dated 28.06.2010
stating that the information collected indicates that the wagon
has reached it’s destination after about 38 days delay and the
goods were completely damaged.
(vi) Exhibit-A6 is the copy of the letter dated
29.06.2010 from the applicant to the Chief Commercial
Manager/FM & Claims, N.F. Railway requesting the return of the
Railway receipt for taking delivery on proper assessment of their
loss incurred.
(vii) Exhibit-A7 is copy of the letter from the Office of
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the General Manager/Claims, N.F. Railway dated 29.06.2010
stating that the Railway receipt is forwarded and a request was
made to the applicant to contact the concerned person for
delivery.
(viii) Exhibit-A8 is the copy of the letter to the Chief
Commercial Manager/ Claims, N.F. Railway dated 05.07.2018 by
the applicant requesting to settle the claim at Rs.4,80,000/- with
the endorsement of the respondent to the effect that it had
received the same on 06.07.2010.
(ix) Exhibit-A9 is the copy of another letter dated
12.07.2010 to the Chief Commercial Manager/FM & Claims, N.F.
Railway demanding compensation and the endorsement of the
receipt by the respondent dated 15.07.2010, and;
(x) Exhibit-A10 is the notice purported to be issued
under Section 106 of the Railways Act.
12. It has been held by the learned Tribunal that it is discernable from the
evidence that Exhibit-A(1)=Exhibit-R(1) is the evidence of booking of
consignment on 21.05.2010 and on the reverse of Exhibit-A(1) is the
endorsement in favour of the appellant. It was then held by the learned Tribunal
that the signatures on Exhibit-A(2) and A(10) appears to be by the same hand
which affixed the signature on the application. Although the signatures in other
letters does not appear to be similar.
13. As per Section 106 of the Railways Act, a person shall not be entitled to
claim compensation for loss, destruction, damage, deterioration or non-delivery
of goods carried by the Railways unless a notice thereof is served by him or on
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his behalf within 6 months from the date of entrustment of the goods. It was
held by the learned Tribunal that the notice was issued within 6 months, and as
per Sub-section 2 of Section 106, any information, demand or enquiry shall be
deemed to be a notice of the claim. It was held by the learned Tribunal that in
the instant case, the notice has been properly issued and served.
14. It has been held by the Tribunal that respondents did not state any reason
for the delay in delivery. The learned Tribunal has held that there are no
materials to accept or reject the appellant’s case that all the wagons except the
one involved in this case reached the destination in time. Exhibit-A1=R1, does
not indicate that the potatoes were damaged or of substandard quality and the
potatoes being vegetables, if kept in a sealed wagon for a period of 30 days,
putrefaction is inevitable. It was held by the Tribunal that on the materials
placed on record, the delay caused in transit resulted in the damage of the
goods.
15. The liability in causing the delay was also attributed to the appellant. It was
held by the Tribunal that although the goods were brought by the appellant to
the consignee on 07.05.2010 or 08.05.2010, the goods were booked as late as
21.05.2010, but the Railways cannot shy away from the responsibility of the
delay as the goods were perishable goods and were prone to decay.
16. The Tribunal has recorded sound reasonings and this decision of the learned
Tribunal that the Railways are responsible for the delay in delivering the goods
to the appellant is correct. I also record my concurrence to the decision of the
learned Tribunal that notice under Section 106 of the Railways Act has been
properly issued and served.
17. The Tribunal did not accept and believe the photocopy of the letter issued by
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the Chambers of Commerce which quoted the price of the potatoes @ Rs.1200/-
per quintal. The learned Tribunal also did not accept Exhibit-14, another
photocopy of a letter issued by the Guwahati Potato Onion Merchants
Association stating that the price of potatoes was Rs.1125/- to Rs.1200/- per
quintal.
18. It was held by the learned Tribunal that the rules were violated as originals
were not appended along with the application.
19. The evidence was scrutinized in depth and all the documents along with the
receipts were taken into consideration and the learned Tribunal dismissed the
application and held that the appellant has failed to prove that he is entitled for
a particular sum as compensation as well as the demurrage charges incurred
upon him.
20. 883 bags of potatoes arrived after 40 days. The delay caused by the
appellant also resulted in the damage of the potatoes. The appellant himself has
admitted that the potatoes were brought for transportation on 07.05.2010 or
08.05.2010 but were booked only on 21.05.2010.
21. It is true that the delay cannot be attributed solely to the applicant. Delay
was also caused by the Railways. The Railways have justified their delay relating
to transportation of certain quantities in a day indicating that the delay was not
caused by Railways as 883 bags of potatoes could not have been delivered
within that period of time in their hand. Although, contributory negligence has
been attributed by the Tribunal by holding that notice has been properly served
and there was indeed a delay of delivery of the consignment of potatoes, yet,
the Tribunal on scrutinizing the documentary evidence held that the price of the
potatoes have not been correctly and truthfully stated by the
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applicant/appellant.
22. It is argued on behalf of the appellant that according to the Indian Railways
Commercial Manual, Volume-II, the goods ought to have been delivered to the
consignee within 10 days as the goods were perishable goods but the Railways
have delivered the goods after 38 days.
23. Learned counsel for the appellant has relied on the decision of the High
Court of Judicature at Bombay in 2004 SCC Online Bom 300 in connection
with Union of India and Anr Vs. Abdul Karim and Co , wherein it has been
observed by the Bombay High Court that:-
“13. It is not in dispute that four consignments were booked on different
dates and the clusters plantains were delivered to the plaintiff. It is also
not disputed that the goods were booked at owner’s risk and the goods
were found to have deteriorated at the time of delivery. There is also no
dispute that there was about 2 days’ delay in delivering the goods of
three consignments and there was a delay of four days in the delivery of
one consignment. When the railway administration did not adduce any
evidence as to how the goods were handled in transit, the delay in
delivery would certainly cause the deterioration of the goods.
15. Section 76 of the Indian Railways Act contemplates that the railway
administration shall be responsible for the loss, destruction, damage or
deterioration of animals or goods proved by the owner to have been
caused by delay or detention in their carriage unless the railway
administration proves that the delay or detention arose without
negligence or misconduct on the part of the railway administration or of
any of its servants. This provision of law casts responsibility on the
railway administration for delay in delivery of the goods or if the goods
are deteriorated during transit, the detention of the same in transit.
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Section 74 of Indian Railways Act deals with the goods which are to be
carried at the owner’s risk rate and contemplates as under:
“When any animals or goods are tendered to a railway administration for
carriage by railway and the railway administration provides for the
carriage of such animals or goods either at the ordinary tariff rate (in this
Act referred to as the railway risk rate) or in the alternative at a special
reduced rate (in this Act referred to as the owner’s risk rate), the animals
or goods shall be deemed to have been tendered to be carried at owner’s
risk rate, unless the sender or his agent elects in writing to pay the
railway risk rate.
(2) Where the sender or his agent elects in writing to pay the railway risk
rate under sub-section (1), the railway administration shall issue a
certificate to the consignor to that effect.
(3) When any animals or goods are deemed to have been tendered to be
carried, or are carried, at the owner’s risk rate, then, notwithstanding
anything contained in section 73, the railway administration shall not be
responsible for any loss, destruction, damage, deterioration or non-
delivery, in transit, of such animals or goods, from whatever cause
arising, except upon proof that such loss, destruction, damage,
deterioration or non-delivery was due to negligence or misconduct on the
part of the railway administration or of any of its servants.”
24. In the instant case it is contended by the appellant that no explanation of
delay was offered by the Railways. The delivery certificate or the open delivery
certificate amounts to admission of liability. The appellant has also relied on the
decision of this Court in Union of India Vs. Jay Prakash and Associates
wherein MFA 122/2011, vide order dated 28.06.2024, it has been observed
that:-
“Exhibits A1 to A12 are the delivery
certificates jointly signed by both sides, which confirms
short delivery of the consignment. On the basis of the said certificate, the
Tribunal agreed with the respondent that there was a short delivery of the
consignment. ”
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25. The appellant has also relied on the decision of the Hon’ble Supreme Court
in Jetmull Bhojraj vs The Darjeeling Himalayan Railway Company Limited
and Ors, Manu/SC/0035/1962,wherein it has been held by the Hon’ble
Supreme Court that:-
” 23. The High Courts in India have taken the view that the object of
service of notice under this provision is essentially to enable the railway
administration to make an enquiry and investigation as to whether the
loss, destruction or deterioration was due to the consignor’s laches or to
the wilful neglect of the railway administration and its servants and
further to prevent stale and possibly dishonest claims being made when
owing to delay it may be practically impossible to trace the transaction or
check the allegations made by the consignor. In this connection we may
refer to a few of the decisions. They are Shamsul Huq v. Secretary of
State I.L.R. (1930) Cal. 1286 Mahadeva Ayyar v. S.I. Railway Co. I.L.R.
(1921) Mad. 135 Governor-General in Council v. G.S. Mills Ltd. I.L.R.
(1449) Pat. 178, Meghaji Hirajee & Co., v. B.N. Railway Co. Ltd. A.I.R.
1939 Nag. 141. Bearing in mind the object of the section it has also been
held by several High Courts that a notice under s. 77 should be liberally
construed. In our opinion that would be the proper way of construing a
notice under that section. In enacting the section the intention of the
legislature must have been to afford only a protection to the railway
administration against fraud and not to provide a means for depriving the
consignors of their legitimate claims for compensation for the loss of
damage caused to their consignments during the course of transit on the
railways.”
26. In the light of the decision of the Hon’ble Supreme Court in Jetmull
Bhojraj (Supra) and in view of the foregoing disuciions on the issuance and
acceptance of notice, it is reiterated there were no laches or irregularities in
service of notice to consignee.
27. In this case, the appellant has laid stress in his argument relating to non-
compliance of Rule 1746 of the Indian Railway Commercial Manual, Volume-II.
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The rule is if a consignment and the invoice for which it is received or the
Railway receipt for which has been presented for delivery at the station, is not
received within a reasonable time, the destination station should initiate the
enquiries at once for tracing the consignment as indicated in the Rules, after
accounting for the relevant invoice in the delivery of goods booked, if not
already done.
28. According to Rule(B), one day is required for every 250 kms or part thereof,
on the overall distance plus one day each for loading and unloading in relation
to all broad gauge routes. In the instant case, the distance from the loading
point to the destination point was 1855 Kms.
29. It is further argued that it was decided between both the parties that the
price of the potatoes would be taken as Rs.10/- per kilo but this was denied by
the Railways through their written statement. The Lower Court record also
reveals that orders were passed to assess the value of the potatoes @ Rs. 10/-
per kg, which was finally drooped.
30. As the respondents did not offer any explanation for the undue delay, it was
held that the respondent is responsible for the delay.
31. The learned Tribunal after an in depth discussion dismissed the appellant’s
prayer for compensation. The weight was questioned by the learned Tribunal.
The receipts were discussed in detail and thereafter, holding that the appellant
failed to prove the correct weight of the potatoes, the prayer of the appellant
was dismissed.
32. It was observed by the learned Tribunal that the weight of the potatoes for
the first time was reflected in Exhibit R6 and later in Exhibit A8. Exhibit A8
shows that the appellant did not produce the bill before the respondent, which
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was questioned by the respondent through the written reply. An invoice was
produced and a photocopy was produced by the appellant issued by the
Chambers of Commerce, which stated the price of potatoes to be Rs.1200/- per
quintal. After a detailed calculation, it was held by the learned Tribunal that a
photocopy of the bill dated 20.05.2010 marked as Exhibit A13 reflected the
weight of one bag of potatoes to be 50 kgs, which implies that the total product
was 441.50 quintals.
33. It is pertinent to mention at this juncture that the Tribunal did not accept
the bill, Exhibit A13 as it was produced at the 11 th hour and to the detriment of
the respondent. However, after thoroughly scrutinizing the Trial Court Record, it
has surfaced that Exhibit A13 is not in the record and moreover, it will be a futile
exercise to get into the details of Exhibit A13.
34. The learned Tribunal has strongly slammed Exhibit A13. At this juncture, it is
apt to mention that when Exhibit A13 is not found in the record and when
Exhibit A13 has been rejected by the learned Tribunal, this Court would refrain
from getting into the details of Exhibit A13.
35. It was held by the learned Tribunal that the photocopy of the letter issued by
the Guwahati Potato Onion Merchants’ Association marked as Exhibit A14
cannot be relied upon as the appellant, is a member of the association and the
association is an interested witness. The price of potatoes per kg according to
the association is Rs.1125/- to Rs.1120/- per quintal. It was held by the learned
Tribunal that there are departments like Bureau of Economics and Statistics,
which could have provided the wholesale price index of potatoes.
36. It was further held by the learned Tribunal that except freight which could
be seen from Exhibit A1 = R1, no documents are forthcoming to prove the price
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of the potatoes vis-à-vis the weight. It was observed by the Tribunal that the
applicant/appellant is a litigant who plays dirty games to mulct undue benefits
from the Railways. As the appellant failed to produce any income tax
assessment, books of accounts or bills of the same period, it was observed by
the Tribunal that suppression speaks volumes and the applicant/appellant is a
litigant who plays dirty games to claim compensation. However, the Tribunal
entered into a finding that the applicant is entitled to 50% of the valuation of
goods as compensation but as the applicant has not come with clean hands, the
applicant is not entitled to compensation and the learned Tribunal rejected the
appellant’s claim for refund of the demurrage charge allegedly incurred by the
respondent.
37. It is pertinent to mention at this juncture that RR at Exhibit A1 = R1 clearly
depicts 400 quintals of potatoes transported by the Railways. The controversial
Exhibit A13 which is not in the record and which has been vehemently criticized
by the Tribunal, clearly reveals that the weight of the potatoes would be 441.50
quintals.
38. Thus, the decision of this Court in Union of India versus M/S Indian Oil
Corporation in connection with MFA 92/2016 vide the order dated 21.05.2020, is
not similar to this case and the decision of the Hon’ble Supreme Court relied
upon by the respondent in Hari Sao and Another versus the State of Bihar
reported in AIR 1970 Supreme Court 843, is not applicable to this case.
39. Paragraph 8 of the decision of the Hon’ble Supreme Court in Hari Sao
(supra) clearly reflects why the ratio of the decision of the Hon’ble Supreme
Court is not applicable to this case. This case was relating to transporting of 251
bags of chilies whereas at the destination point when the wagons were
unloaded, 197 bags of straw were discovered instead of 251 bags of chilies.
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40. This instant case is relating to 400 quintals of potatoes. It has not been
disputed by the respondent that some other goods instead of potatoes were
found at the destination point where the goods were unloaded.
41. Learned counsel for the respondent has relied on paragraph 9 of the decision
of the Hon’ble Supreme Court in Hari Sao‘s case (supra), which is quoted herein
below:-
“9. In this connection reference may be made to the Goods Tariff Rules. Rule
15 of Part 1 of the Goods Tariff shows that :
“The weight, description and classification of goods and quotation of rates as
given in the railway receipt and forwarding note are merely inserted for the
purpose of estimating the railway charges and the railway reserves the right of
re-measurement, re-weighment, reclassification of goods and re-calculation of
rates and other charges and correction of any other errors at the place of
destination and of collecting any amount that may have been omitted or
undercharged. No admission is conveyed by a railway receipt that the weight as
shown therein has been received or that the description of goods as furnished
by the consignor is correct.”
Under Rule 22(1) every consignment of goods when handed to the railway for
despatch must be accompanied by a forwarding note which must be signed by
the sender or his authorised agent and must contain a declaration of the weight
in accordance with Section 58 of the Indian Railways Act and destination of the
goods consigned. Under Rule 24(2) if a materially false account is delivered
with respect to the description of any goods, the person who gives such false
account, and if he is not the owner, the owner also, is, on conviction by a
Magistrate, liable to a fine which may extend to Rs. 50/- per maund or part of a
maund of the goods, and such fine will be in addition to the rate to which the
goods may be liable.”
42. In the decision of this Court in Union of India versus M/S Indian Oil
Corporation Limited in connection with MFA 92/2016 it has been observed
that :-
“16. Mr. G Goswami, learned counsel for the appellant Railways relies upon the
judgment of this Court dated 26.04.2019 in MFA 20/2012 passed in Union of
India Vs. Bajaj Trading Company to impress upon that the matter may not be
remanded back for a fresh decision as it would amount to granting a fresh
Page No.# 16/19opportunity to the respondent IOC to claim after a lapse of long period of time
and also in view of the failure on the part of the respondent IOC to file an
application under Order 41 Rule 27 of the CPC seeking leave to lead evidence at
the appellate stage. But we are of the view that in the instant case, the Tribunal
misdirected itself in not determining the claim raised by the respondent IOC at
all and merely relied upon the principle of drawing adverse inference which in
the circumstances of this case appears to have been inapplicable. As the
Tribunal had not decided the core question at all i.e. what was the weight or
volume of the goods loaded by the respondent IOC at the place of origin, we
are of the view that this matter requires a remand to the Railway Claims
Tribunal for a proper decision on the said aspect.”
43. Reverting back to this case, it is held that the RR clearly reflects that 400
quintals of potatoes were transported. Exhibit A13 which has shown 41 kgs
extra has not been exhibited in the Court or is found in the record. So, it cannot
be held at this stage that there are contradictions in the weight of the potatoes.
This is a long pending case and at this juncture, remanding back this case for a
bill or receipt relating to weight of the potatoes is not warranted.
44. The respondent has also relied on the decision of this Court in MFA No.
1/2013 in connection with M/S Bajaj Trading Companies versus Union of India
wherein vide order dated 17.12.2024, it has been observed that :-
“20. But, the appellant herein had failed to establish the fact that consignment
of salt containing 40,444 bags was booked on 10.11.2009 and loaded in the
wagon, by producing relevant documents such as Lorry Challan and payment of
Sales Tax, Books of Accounts, Balance Sheet and Beejuck/Sale Invoice.
21. Further, it appears from the record that the appellant herein had not
demanded for open delivery of the consignment at the destination point. Rather
he had demanded for issuing one delivery certificate. And accordingly, the
respondent herein had issued the delivery certificate- i.e. Exhibit-R3. But, said
Exhibit does not indicate that the condition of seal of wagons was broken or
there was pilferage or there was any criminal interference.
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22. Section 81 of the Railways Act, 1989 provides that where the consignment
arrives in a damage condition or shows sign of having been tampered with and
the consignee or the endorsee demands for open delivery, the Railway
Administration shall give open delivery in such manner as may be prescribed
and read with Para No. 1840, 1842 (i) to (vi) of IRCM- Vol-II.
23. That being so, the learned Tribunal had rightly held that the
applicant/appellant had not produced any evidence to show that the remarks
recorded in the Exhibit-R4 are contradictory and he had not raised any
objection to those recordings. The finding so recorded by the learned Tribunal is
also strengthened by the decision of Orissa High Court in Union of India vs.
Industrial Development Corporation of Orissa Limited, reported in AIR 1995
Orissa 298, so relied upon by it.”
**** ***** ****
“25. In the result, and in view of foregoing discussions and findings, I find this
appeal bereft of merit, and accordingly, the same stands dismissed leaving the
parties to bear their own cost. Send down the record of the learned Tribunal
with a copy of this judgment and order.”
45. In the instant case, the Tribunal has already observed that the consignor as
per Exhibit A1 = R1 is R.D. Mukunda & Co Freight Forwarder, Office No. 2,
Goods Office, DKZ and the consignee is Karan Traders. Exhibit A2 is the copy of
a letter dated 03.06.2010 issued to the General Manager Claims, N.F. Railway,
together with the RR stating that the consignment booked by original of Exhibit
A1=R1 is not delivered till the date of the forwarding letter.
46. The learned Tribunal has already held that the respondent is liable to
contributory negligence as the appellant is also responsible for delay in loading
the goods. Appellant has himself admitted that the potatoes were brought for
transportation on 07.05.2010 or 08.05.2010 but were booked only on
21.05.2010.
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47. It is also pertinent to mention at this juncture that as per Rule 1746 of IRCM
Rules, the goods ought to have been unloaded at destination point after ten
days of booking as the distance was 1855 kilometers. Without calculating all the
details, the period required for the arrival of the goods at the destination point,
it would be germane to reiterate that the learned Tribunal has already held the
appellant responsible for contributory negligence. The respondent was also held
responsible for contributory negligence.
48. I would also like to rely on the decision of this Court in Union of India versus
Sunrise Traders reported in 2016 (1) GLT 447 wherein it has been observed that
:-
“12. Having so found, it appears that the learned Tribunal has not committed
any error in arriving at a finding under issue No. 3 holding that 441 bags of
onion were in damaged condition. The only thing which was left for decision of
the Tribunal was to make an assessment of the compensation. True, the
claimant could not produce beejuck to show the purchase rate of the onion.
Under such circumstances, the learned Tribunal presumed the price to be Rs.
5/- per Kg as reasonable rate. Some amount of guess work is permissible by a
Claims Tribunal when the basic facts are on record. In the case of Chain Sukh
Jain v. Union of India reported in (2003) 3 GLR 267, this court held that guess
work is a must for disposal of the case in absence of complete evidence. Here
in this case, damage of 441 bags of onion is an established fact. The only
question is what should be correct price of the damaged onion has not been
proved by the claimant. This is why, the learned Tribunal took a pragmatic view
and made a guess work that each kilogram of onion costs Rs. 5/- which does
not appear to be absurd. Even in the present memorandum of appeal, no
specific ground has been taken questioning the correctness of the guess work
as to reasonable rate of each kilogram of onion. Having so situated, none of the
findings of the learned Tribunal can be interfered with in exercise of appellate
Page No.# 19/19power. Consequently, this appeal is found to be devoid of any merit. The appeal
stands dismissed.”
49. In the wake of the foregoing discussions, I deem it appropriate to assess the
price of the potatoes at Rs. 1200/- per quintal which also does not appear to be
absurd. The appellant has claimed for a refund of Rs.4,80,000/- (Rupees Four
Lacs Eighty Thousand) on account of shortage of goods, as the goods were
damaged. The appellant quoted the price of 1 quintal of potatoes to be Rs.
1200/-.
50. The Railways who are held responsible for delay in delivery of goods to the
consignee is hereby directed to pay 50% of Rs.4,80,000/- (Rupees Four Lacs
Eighty Thousand) within three months of the date of this order.
51. In addition. The Railways are directed to refund the demurrage charges of
Rs. 9,500/- already paid by the appellant.
52. Appeal is hereby partly allowed.
53. Send back the Trial Court Record.
JUDGE
Comparing Assistant