:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL NO.809 OF 1993 Union of India, Represented by the General Manager, Central Railway, Bombay V.T. ...Appellants. Vs. M/s.Natwarlal Vissanji & Co. Coal Merchants, Natwar Theater, Jalgaon- 425001. ...Respondents. Mr.A.N.Samant, Advocate for the Appellants. Mr.G.S.Mohan Rao, Advocate for the Respondents. CORAM : R.S. MOHITE,J. DATE : 22nd April,2008. ORAL JUDGMENT : 1. This is the first appeal filed by the Union of India impugning an exparte Judgment and order passed by the Railway Claims Tribunal, Bombay directing them to pay Rs.25,117/- being the claim made by the respondents. The order further directs that in default of payment, the appellants are also entitled for interest at the rate of 10% on Rs.25,117/- till the date of the payment. 2. The brief facts of the case were as under. a) That, a Consigner, West Jharkhand Colliery which :2: was coal producing company despatched 27 Box Wagons of w coal to consignees by name Maharashtra Vegetable Products and Maharashtra Oil Industries situated at Dhulia. The Coal was loaded at Bijuri and was to be dispatched by railway to Dhulia. These 27 box wagons were loaded under Invoice No.s 5,6,7 and 8. Out of these only 26 wagons were delivered and one rack did not arrive at the destination. That, thereafter, for the first time, on 6.10.1988 the respondents wrote to the Chief Commercial Supdt. seeking a refund stating that they had dispatched one full rack of 27 wagons loaded with steam coal. Their only grievance in the letter was that the wagons were brought to the destination by longer route and therefore, excess freight charges of Rs.504410/- were charged. b) This dispute raised in the letter dated 6.10.1988 was attempted to be settled by the railway vide their letter addressed to the appellants on 10.6.1989 where they agreed to pay an amount of Rs.30,271/-. The appellants disputed that this amount as a correct settlement of their claim for bringing goods by a longer route. We are however, not presently concerned with this dispute. c) It appears that as regards the missing wagon the railway by their letter dated 8.12.1989 settled the :3: claim by calculating the value of the missing wagon at Rs.40,416.00. From this they deducted an amount of Rs.19,538/- being the value of the freight due and thus refunded only Rs.20,878.80ps. d) Being aggrieved by the deduction of freight charges when in fact, the wagon was not delivered, on 24.7.1991, the respondents filed a claim before the Railway Claims Tribunal. The claim was for an amount of Rs.25,117/-. This claim comprised of Rs.19,538/- being the excess freight charges, Rs.5428/- being the interest and Rs.121/ being the notice charges. 3) The roznama indicates that after service upon the railways the matter was adjourned from time to time for filing the written statement. Since the written statement was not filed, the court accepted the affidavit in lieu of examination in chief. The record indicates that after examination in chief on behalf of the respondents a pursis was filed closing their evidence. 4) After evidence was closed, the record indicates that a written statement was tendered to the Tribunal. Thereafter also there were several dates and ultimately without permitting the cross examination, the impugned judgment and decree came to be passed. The record :4: indicates that the appellants made an application for taking the written statement on record by condoning the delay. Ultimately by an order dated 27.8.1993, the application on behalf of the appellants for taking their written statement on record was rejected and on the same day the impugned judgment and order allowing the claim of the respondent came to be passed. 5) I have heard both the sides. In my view, the appeal against the respondents requires to be allowed on a short point. The claim has been filed without giving prior statutory notice as required under Section 78-B of the Indian Railways Act, 1890 within 6-months from the date of entrustment of the goods. The said section 78-B reads as follows. 78-B. Notification of claims to refunds of overcharges and to compensation for losses- A person shall not be entitled to a refund of an overcharge in respect of animals or goods carried by railway or to compensation for the loss, destruction, damage, deterioration or non delivery of animals or goods delivered to be so carried, unless his claim to the refund or compensation has been preferred in writing by him or on his behalf- :5: (a) to the railway administration to which the animals or goods were delivered to be carried by railway, or (b) to the railway administration on whose railway the destination station lies, or the loss, destruction, damage or deterioration occurred, within the six months from the date of the delivery of the animals or goods for carriage by railway; Provided that any information demanded or inquiry made in writing from, or any complaint made in writing to any of the railway administration mentioned above by or on behalf of the person within the said period of six months regarding the non delivery or delay in delivery of the animals or goods with particulars sufficient to identify the consignment of such animals or goods shall, for the purposes of this section, be deemed to be a claim to the refund or compensation. 6) On this point the Advocate for the respondents :6: sought to argue that they had made a complaint in writing within six months on 6.10.1988 and therefore, notice must be deemed to have been given by virtue of proviso of above section as reproduced herein above. There is no substance in this point. On perusing the said letter dated 6.10.1988, it is clear that same does not pertain to the claim or any part thereof but pertains to different grievance concerning bringing of wagons from a longer route. There is no earlier complaint made by the respondents on record which can be treated as deemed notice within the meaning of the aforesaid proviso. It was next sought to be contended that the deduction was made for the first time by the railways on 8.12.1989. It is seen that there was no earlier claim in relation to the valuation of the contents of the missing wagon at all. If there was any such letter of claiming value of the missing wagon, the same is not produced by the respondents when they led their evidence by an affidavit in lieu of examination in chief and producing their documents. The record only indicates that only dispute raised within 6-months pertains to bringing the goods from a longer route. In this view of the matter, the tribunal ought to have considered the question of limitation under Section 78-B of the Indian Railways Act. The impugned judgment does not indicate that there was no application of mind to this aspect of the matter. The Appeal must :7: therefore be allowed on this ground alone. 7) In the result, the appeal is allowed. The impugned judgment and order is quashed and set aside. Appeal stands disposed off. ( R.S. MOHITE, J.)