IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.539 of 2007 RAM SALT TRADERS PROPERIETOR MANISH NAHATTA, R/O GULAB BAG, P.O. & P.S. GULAB BAG, DISTRICT PURNIA .. APPELLANT Versus THE UNION OF INDIA THROUGH THE GENERAL MANAGER, NORTH EAST FRONTIER (N.F.) RIALWLAY, MALIGAON, GUWAHATI .. RESPONDENT With M.A. No.540 of 2007 RAM SALT TRADERS PROPERIETOR MANISH NAHATTA, R/O GULAB BAG, P.O. & P.S. GULAB BAG, DISTRICT PURNIA .. APPELLANT Versus THE UNION OF INDIA THROUGH THE GENERAL MANAGER, NORTH EAST FRONTIER (N.F.) RIALWLAY, MALIGAON, GUWAHATI .. RESPONDENT **** For the petitioner .. Mr. K.M. Mishra, Adv. (in both the cases) For the respondent (Railway) .. Mr. Siddhartha Pd., Adv. **** /8/ 23.02.2011 Heard the counsel for the parties. 2. These two Miscellaneous Appeals have been heard together and are being disposed off by this common order as in both the Appeals the common point of law is involved. 2 3. In M.A. No. 539 of 2007 arises out of the order, dated 26.07.2007, passed by the Railway Claims Tribunal, Patna, in Claim Application No. OC 00050 of 2001, by which the claim application has been dismissed whereas in M.A. No. 540 of 2007 arises out of the order, dated 26.07.2007, passed by the Railway Claims Tribunal, Patna, in Claim Application No. OC 00051 of 2001, by which the claim application has been dismissed. In both the Appeals, the appellant is Ram Salt Traders through Proprietor Manish Nahatta. 4. The claim application was filed by the appellant, Ram Salt Traders under Section 16 read with Section 13(1)(a) of the Railway Claims Tribunal Act, 1987, claiming compensation to the tune of Rs.43,040/- and Rs.20,800/- respectively with 10% interest pendentilite and future interest rate at the rate of 18% from the respondent, the Union of India through the General Manager, N.F. Railway, Guwahati, for short delivery of the consignment. 5. In both the cases consignment of 1189 bags and 1169 bags respectively of iodized salt was booked under Railway Receipt No. 8464491 and 846488 on 3 15.03.1998 and entrusted to Railway for carrying from Gandhinagar to Katihar and during the unloading of the said article at the destination on 31.03.1998, 130 bags respectively and 269 bags of the consignment were found short as out of 1189 bags of iodized salt only 1059 bags were delivered and the rest 130 bags were not delivered whereas with regard to the consignment of 1169 bags of iodized salt under Railway Receipt No. 846488 only 900 bags were delivered at the destination and, hence, 269 bags were found short and it is alleged that the consignment were found short by 130 and 269 bags due to willful negligence and misconduct on the part of the Union of India through the Railway. 6. The said claim application has been supported with the documents, the notice under Section 106 of the Railway Claims Tribunal Act, 1987, dated 06.04.1998, marked as Exhibit “A”, applicant‟s letter, dated 31.03.1998, marked as Exhibit “A-1”, photo copy of Railway Receipt 846491 marked as Exhibit “A-2”, applicant‟s affidavit, dated 05.02.2001 and 08.12.2006 marked as Exhibit “A-3” and beejak, dated 16.03.1998, marked as Exhibit “A-4”. The written statement filed on 4 behalf of the respondents alleging that the application is barred by limitation. The consignment was booked at the risk of the owner and the respondents can not be held liable for destruction/shortage of non-delivery of the goods unless the negligence or misconduct on the part of respondents is proved by the applicant and the short delivery is not admitted due to the negligence of the respondents. It has, further, been asserted that the consignment was booked by sender through Railway Receipt “said to contain” and the consignment directly loaded from the truck to wagon by the sender and not supervised by the Railway and the respondents also filed documents, original copy of Railway Receipt 846491, dated 15.03.1998, Exhibit “R1” and forwarding note, Exhibit “R2”. 7. On the basis of the pleadings of the parties four issues were framed, i.e., (i) whether the claim application of the applicant is maintainable?, (ii) whether alleged consignment reached the destination station in the same in which it was booked?, (iii) whether the applicant has delivered 130 bags of salt short from the alleged consignment entitled him to receive compensation of 5 Rs.20, 800/- ? and (iv) any other relief. 8. However, in the Claim Application No. OC 00050 of 2001 salt was booked by Railway Receipt 846488 and 269 bags of the consignment were found short and alleged that the said short delivery was due to willful negligence and misconduct on the part of the Railway authorities who are respondents and five documents filed, i.e., the notice under Section 106 of the Railway Claims Tribunal Act, 1987, dated 06.04.1998, marked as Exhibit “A”, applicant‟s letter, dated 31.03.1998, marked as Exhibit “A-1”, photo copy of Railway Receipt 846491 marked as Exhibit “A-2”, applicant‟s affidavit, dated 05.02.2001 and 08.12.2006 marked as Exhibit “A-3” and beejak, dated 16.03.1998, marked as Exhibit “A-4”, and the written statement was filed in similar manner as the application barred by limitation and, however, the defence in the written statement taken that consignment was booked as “said to contain” and the goods were loaded on the wagon directly by the sender from the truck, which was not supervised by Railway staff. However, in the case additional written statement was filed that the consignment reached 6 destination station without any interference in route and opening the stocks were found in disturbed condition and the alleged shortage was due to the short loading by the sender at the forwarding station and the consignment was booked as “said to contend” and, hence, onus was on the party to prove that the number of bags said to have containing salt entrusted to the Railway for carrying and it is asserted that the applicant is to strictly prove under Section 65(2) of the Railway Claims Tribunal Act, 1987, and the documents filed, enquiry report and the forwarding notes. 9. on the basis of the pleadings of the parties, the issues were framed as to whether claim application of the applicant is maintainable, whether the alleged consignment reached the destination station in the same condition in which it was booked, whether the applicant was delivered 269 bags of salt short from the alleged consignment entitling him to receive compensation of Rs.43,040/- from the Railway or any other relief the applicant is entitled. 10. However, the Tribunal while deciding issue no. (i) in both the cases held that the claim application is 7 not barred by limitation and is maintainable under Section 17(1)(a) of the Railway Claims Tribunal Act. 1987. However in Claim Case No. OC 00051 of 2001 it was held that Shri Durga Salt Trading Company is consignor and the consignee and at the back of the Railway Receipt, as per Exhibit “R1” there is an endorsement made by Shri Durga Salt Trading Company to the fact that the consignment be delivered to Ram Salt Traders, hence, Ram Salt Traders is an endorsee and on producing the Railway Receipt is entitled to receive compensation and the evidence of Manish Nahatta in his affidavit sworn on oath that 1059 bags of the consignment were delivered to him and respondents have not contested or adduced any evidence to prove otherwise and, hence, held that the respondents have delivered the consignment to the applicant, hence, admitted applicant‟s right over the consignment and, further, held that the endorsee of Railway Receipt is entitled to same remedies as to the owner and held that the claim application is maintainable. 11. In Claim Application No. OC 00050 of 2001 it was held that Ram Salt Traders not indicated either in claim application or anywhere as to in what capacity they 8 have filed the claim application. It has been held that Ram Salt Traders has not indicated either in their application or anywhere else as to in what capacity they have filed the claim application for compensation and as per the Railway Receipt filed by them along with the documents the forwarding note, Exhibit “R2” shows that the consignor is Vijay Salt Syndicate and consignee is Keshari Enterprises. The copy of the Railway Receipt does not carry endorsement to the fact that the consignment was delivered to any other party and the applicant has not led much in evidence that he has entrusted over the suit, hence, held that the appellant of Claim Application No. OC 00051 of 2001 has not locus standi to file claim petition. 12. However, deciding issues no. (ii) and (iii) in both the cases it was held that once 130 bags of iodized salt short against total of 1189 bags booked on Railway Receipt No. 846491 in wagon N.R. tags 84834, the applicant has filed a letter, dated 31.03.1998, to Chief Goods Superintendent, Katihar, to issue short certificate and the Commercial Supervisor, Goods, Katihar, endorsed on this letter that the consignment established in open 9 wagon and was booked as “said to contain”. No D.D. message was also issued and as per record 1059 bags of iodized salt were unloaded against the said wagon and no short certificate was issued and in similar manner in Claim application No. OC 00051 of 2001 a letter of request made for issuance of short certificate and on the said letter Commercial Superintendent, Goods, Katihar, has endorsed that the consignment arrived in open wagon was booked as “said to contain” and in D.D. message was also issued, no short certificate was issued and this is not a conclusive evidence to prove that any short delivery was made till it is established that indeed 1189 bags and 1169 bags of the iodized salt were loaded actually and factually at the forwarding station and it was held that since the Railway Receipt qualifies to have been issued with note of “said to contain” “directly loaded from the truck to wagon” quality and quantity and bags were not checked by the Railway staff and, thus, Section 65(a) of the Railway Claims Tribunal Act, 1987, stipulates that in such case burden of proving the weight and number of package lie on the consignor, the consignee or the endorsee and relied on the decision reported in A.I.R. 1970 S.C., 843 (Hari Sao & 10 Anr. Vrs. The State of Bihar) and A.I.R. 1956 Madras, 176 (Union of India Vrs. S.P. Lakhu Raddiar) held that since no evidence has been adduced and original beejak has not been filed and applicant‟s own admission is traceless held that the claim application must fail and, further, held that in view of the findings issues no. (ii) and (iii) held to have failed, the applicant is not entitled to any relief. 13. The learned counsel for the appellant, however, contends that the quantity of goods were dispatched/loaded when the consignment was initially entrusted to the Railway for carriage and carriage was charged on the basis of the consignment loaded and endorsed and since 130 and 269 bags were delivered in short supplied as against 1189 bags only 1159 bags of salt were provided whereas with regard to 1059 bags only 900 bags were delivered and, hence, appellant is entitled for the compensation and reliance has been placed upon decision reported in A.I.R. 1997 Raj, 123 (The Union of India Vrs. Roop Narayan) and 2002 (2) P.L.J.R., 695 (The Union of India Vrs. The Tata Iron & Steel Co. Ltd). 11 14. The learned counsel for the respondent, however, contends that Section 65 of the Railway Claims Tribunal Act, 1987, provides the weight and number of package if in not checked by the Railway servant and statement to that effect is recorded in such circumstance Railway Receipt is to be proved by the consignor, consignee or endorsee and contend that consignment loaded from truck to wagon, quantity and quality could not check by the Railway staff and the short certificate were not issued by the Railway and endorsement with the consignment is established in open wagon and was booked "said to contain" and no D.D. message was issued and, further, the consignor, consignee or endorsee has not laid any evidence and the forwarding notes also does not support the applicant‟s case that "said to contain" and Railway Receipt does not find support, hence, the claim is not entitled. The Tribunal has rightly rejected the claim of the applicant‟s. 15. Hence, on the rival submissions of the parties the question for consideration whether the plaintiff is entitled to the claim for alleged short supply. 16. However, the fact established that 12 consignment of 1169 and 1189 bags were booked by Railway Receipt No. 8468488 and 84649 on 15.03.1998 and it is alleged that the said consignment was delivered short supply of 130 and 269 bags, i.e., 1169 only were delivered instead of 1189 bags. However, on the consignment of Railway Receipt No. 846491 the consignor and consignee was Durga Salt Traders and Company and on Railway Receipt No. 846491 there is endorsement that the consignment is to be delivered to Ram Salt Traders and, hence, Ram Salt Traders marked as endorsee, however, on Railway Receipt no. 846488 the consignor and consignee is Vijay Salt Syndicates and Keshari Enterprises and, hence, Ram Salt Traders is neither consignor nor consignee nor endorsee. Hence, Ram Salt Traders is not entitled to claim on Railway Receipt no. 846488 whereas Ram Salt Traders is an endorsee on Railway Receipt No. 846491 and, hence, entitled to claim compensation. However, the point for consideration whether Ram Salt Traders is entitled for compensation for short supply of iodized salt. 17. Section 65 of the Railways Act provides that the Railway Receipt shall be prima facie evidence of 13 weight and the number of package. However, the proviso to Section 65 of the Railways Act provides that if weight and number of the package is not checked by a Railway Servant authorized in this behalf then the consigner, consignee and endorsee shall be bound to prove the weight of the consignment. However, Section 66 of the Railways Act laid down that the owner or the person having charged of any goods which are brought on railway for carriage shall deliver a statement in writing on demand by Railway Servant containing particular of goods as would be enable the Railway Servant to determine the rate of such carriage. Section 66(2) of the Railways Act, further, laid down that if the owner of the goods refuses to give such statement the Railway Servant shall be entitled to charge highest rate, any clause of such goods or even refuse to accept the goods for carriage, other conditions are 3, 4, 5 and 6. The Railway authority, who accepts the consignment must have demanded proper statement from the consigner for acceptance of the goods loaded, the Railway must have received all the statements and particular to be furnished by the consigner before the Railways. The very fact the Railway Receipt was issued indicates that all the required 14 particulars and statement must have been furnished by the consigner. The freight for consigner was charged for the weight by the consigner so implied the Railway accepted the weight of consignment. The endorsement of the consigner or consignee in Railway Receipt would not absolve Railway from it‟s liability of short delivery and this view has also been expressed in decision reported in 2002(2) P.L.J.R., 695 (supra). 18. Section 93 of the Railways Act clearly lays down that the Railway administration shall be responsible for the loss, destruction, damage and deterioration in transit on any consignment except under certain circumstances as listed from “a” to “i” of Section 93 of the Act responsible for the short supply. 19. In this connection a question raised whether consignment took under “said to contain” Railway Receipt would cover under Section 93 of the Act to an admission on the part of the Railways that said articles had, in fact, were loaded under a fact that the claimants had filed a claim petition for short delivery of numbers of package of cotton seeds on account of negligence of Railway and considering the Rule (b) of Commercial Manual 1529 (b) 15 and Section 65 as well as Section 93 of the Railway Act it was observed in paragraph 15 of the decision reported in A.I.R. 1997 Raj, 123 (supra). “……. “In „said to contain‟ railway receipts, the responsibility of the Railway Administration would be covered under Section 93 of the Railways Act, 1989, provided that the consignor, consignee or endorsee proves that the specified in number of bags were actually loaded in the wagon at the originating station. In a specific case of damage or deterioration in transit the proviso regarding number of bags under Section 65 of the Railways Act would be obviously not attracted as the receipt at destination sufficiently confirms the presumption that those bags were loaded at the originating station.” 20. In decision reported in 2002(2) P.L.J.R., 697 (supra) this Hon‟ble Court has also held that the endorsement of consignor or the consignee in the Railway Receipt would not absolve the Railway from it‟s liability of short delivery which occurs during transit and this is so 16 mentioned in Section 93 of the Act clearly laid down that the Railway Administration shall be responsible for the loss destruction, damage or deterioration on a transit of any consignment except, as contained in A to F of the aforesaid Section 93 of the Railways Act. 21. Section 64 of the Railways Act also provides that the person who entrusted goods to the Railway Administration shall execute a forwarding note in such format as may be specified by the Central Government. The consignor shall be responsible for correctness of the particulars furnish by him in the forwarding note and the consigner shall indemnify the Railway Administration against any damage suffered by it and so the Railway Administration and so the Railway has admitted the weight and granted receipt and has not challenged it as wrong then the Railway would not be permitted to take the plea that the weight furnished by the consigner were wrong and this view has been supported in decision reported in 2000(2) P.L.J.R., 607 (supra). While considering Section 64 the Rajasthan High Court in it‟s decision reported in A.I.R. 1997 Raj, 123 (supra) has held that a perusal of Section 64 of the Act goes to show 17 that forwarding note is a primary evidence and railway receipt is secondary evidence as railway receipt is prepared on the basis of forwarding note and not otherwise. 22. However, in decision reported in A.I.R. 1997 Raj, 123 (supra), the same argument advanced as in this case relying on A.I.R. 1970 S.C. 843 (supra) the onus of proving the quantity and content of consignment was upon the claimant. However, in case reported in A.I.R. 1970 S.C. 843 (supra) the special leave petition filed against the order upholding the conviction by the High Court for offence under Section 420 of the Penal Code. However, the allegation was that the appellant met with Station Master and produced forwarding note for booking consignment for dry chili loading down without the help of Railway employee and the Railway khalasi examined and sealed the wagon from both sides and Railway Receipt was made out by the Station master to the fact that the consignment was „said to contain‟ 251 bags of dry chili and endorsement SWA (sender‟s weight accepted). However, the seal of the wagon was broken and it was found that it contain 197 bags of husk instead of 250 bags 18 of dry chili and first information report was registered and the prosecution examined several witnesses to establish that appellant has brought straw in place of chili and loaded and it was held that claimant on false representation induced to make out a Railway Receipt for valuable security. Under the fact the Supreme Court raised an issue that there can be no doubt that the appellant by deceiving the Station Master induced him to deliver a Railway Receipt which could be used as valuable security, but, assuming that the appellant thereby induced the Station Master to make out the Railway Receipt and the seal have to be shown that making alternative receipt was likely to cause damage or harm to the Railway or State and held considering the relevant provisions that the Railway do not run any additional goods and the issue of the Railway Receipt was, therefore, was not likely to cause any damage or harm to the Railway. 23. However, considering the decision reported in A.I.R. 1997 Raj, 123 (supra), where it has been held “in the cases cited by the learned counsel for the appellant, the provisions pertaining to tally books and forwarding note were not considered. Therefore, the ratio of the said cases, 19 is not applicable in these appeals” and held that if the Railway Receipt contain "said to contain" and it does not amount to admission on the part of the Railway administration that said number of article had, in fact, been loaded, but, when responsibility has to be fixed in the event of any packet found missing at the destination then the examination of tally book and forwarding note is necessary and confirmed the judgment of the Tribunal delivered in favour of the claimant. 24. Hence, taking into consideration the fact that what has been decided in A.I.R. 1970 S.C., 843 (supra) was in different context not applicable to the facts and circumstances of the case. However, the decision reported in A.I.R. 1997 Raj, 123 and 2002(2) P.L.J.R., 695 (supra) where relevant consideration of Sections 64, 65, 66 and 93 of the Railways Act taking into consideration and, further, the fact that the forwarding note mentions the numbers of bags loaded is a primary evidence and, hence, tried analogy and taking into consideration these provisions since the forwarding note and Railway Receipt have been marked as Exhibits R/1 and R/2 when produced by the Railway which mentions 20 about the loading of 1189 bags of iodized salt Railway has granted and a receipt regarding the delivery of only 1059 bags of iodized salt and there is no affidavit by the Loading Clerk denying these endorsements and, hence, the finding recorded by the Tribunal is not sustainable on the ground that the respondent has not proved the weight and value of the consignment said to have entrusted to the Railway, however, when the forwarding note, itself, mentions 1189 bags having been loaded is the prima facie evidence of loading the goods and there is no affidavit by the Loading Clerk denying the said endorsement and, hence, the finding that the claimant has not proved the loading of the said bags is not sustainable and is hereby set aside and I find and hold that the claimant is entitled to the claim on the ground of short supply of 130 bags of iodized salt. 25. However, the same view has been taken by order, dated 07.02.2002, in an unreported decision passed in M.A. No. 353 of 2001 and the said view has been confirmed by order, dated 10.04.2002, in L.P.A. No. 440 of 2002. The fact of the case as mentioned in M.A. No. 853 of 2001 that consignment booked of 1140 bags of 21 iodized salt is without from Railway Receipt, the railway authority delivered 834 bags at destination and so claim petition filed for damages of 306 bags of salt, the Tribunal allowed the appeal. The argument advanced in view of Section 65 of Railway Act that onus lies on claimant. The submission was rejected holding that Section 65 of Railway Act provides that Railway Receipt shall be prima facie evidence of weight and number of packages. The Railway Receipt apparently show that 1140 bags of iodized salt was booked and 834 bags handed over, thus, clear shortage of 306 bags and, hence, allowed the claim. 26. Hence, taking into consideration the facts and circumstances of M.A. No. 540 of 2007 the