MFA 17/2011 BEFORE THE HON’BLE MR. JUSTICE A.C. UPADHYAY JUDGMENT & ORDER (ORAL) Heard Mr. B. Devi, learned standing counsel, NF Railway, appeari ng for the appellant, and Mr. A. Goyel, learned counsel appearing for the respon dents. 2. This appeal under Section 23 of the Railways Claims Tribunal Act , 1987 is directed against the judgment and award dated 12.11.2010, passed by th e learned Railway Claims Tribunal, Guwahati Bench, Guwahati, in Claim Applicatio n No.478/2006. 3. Facts, leading to the filing of this appeal, may be stated in br ief, as follows:- A consignment of total 31,269 nos. bags weighing 75 kilogram eac h was booked on 27.04.2006 by the respondent-applicant, from HVD to NLP under RR No.390993, 390994, 390995 and 390996, but at the destination, 3762 nos. bags we re delivered short by the appellant-Railways. Thereafter, the respondent-applica nt served a notice under Section 106 of the Railways Act, 1989 to the appellant- Railways. The respondent-applicant, thereafter, filed a claim petition before th e Railway Claims Tribunal, Guwahati Branch, Guwahati, stating inter alia, that t he appellant-Railways is fully responsible for shortage of bags and is liable fo r the loss suffered by the respondent-applicant. 4. The appellant-Railways filed a written statement raising certain objections and the appellant-Railways though accepted notice under Sections 106 , but did not admit the service, validity and sufficiency of notice under Sectio n 106 of the Railways Act, 1989. The appellant-Railways further stated that the respondent-applicant has no cause of action and right to sue as the application filed by the respondent-applicant was not verified by proper person having autho rity. 5. On the basis of the pleadings of the parties, the following issu es were framed by the Tribunal: 1. Whether notice u/s 106 of the Railways Act, 1989 was served by the appli cant to the respondent? 2. Whether the respondent has delivered the entire consignment to the appli cant at the destination as per RR? 3. Whether the applicant proves that they received the consignment short at the destination? 4. What order? What relief? 6. The respondent-applicant as well as the appellant-Railways produ ced documents in support of their respective stand. 7. The learned Railways Claims Tribunal, Guwahati Bench, Guwahati, on careful scrutiny of the exhibits (Exbts.A.5 to A.8) decided that the notice u nder Section 106 of the Railways Act, 1989 was delivered to the appellant-Railwa ys authorities. The learned Tribunal, while discussing the issue Nos.2 and 3 hel d as follows: ISSUE NO. 2 &3 (These two issues are interrelated and hence being taken together for convenienc e of discussion) In their application, the Applicant has stated that they booked 31269 ba gs of salt in safe, sound and secured condition under proper supervision of book ing railway staff at booking point, loadings were also witnessed, verified and s urveyed by Government approved surveyor agencies, that the consignment was trans shipped enroute, that at the time of delivery, they found all the MG wagons with out seals and all the doors in open condition, that on unloading they found 3762 bags short for which the railway issued certificates. The Delivery Certificates(Exhibit : A1 to A4) shows that there was a sho rtage. The Respondent has not submitted the original Railway Receipt, original F orwarding Note, Transit Report, Transshipment Report, Seal and Card Labels, in a bsence of which it is not conclusively proved that the wagons were received in S RI condition. They have only made a general denial in their written statement wi thout any documentary proof. During the final hearing, both the parties agreed and accepted 3762 bags as quantum of shortage. Therefore it is proved that the entire consignment was not delivered by the Respondent at the destination and the Applicant’s plea that they received the consignment short stands proved. Hence these two issues are d ecided against the Respondent. 8. On perusal of the delivery certificate (Exhibits A.1 to A.4), it appears that there was a shortage and the appellant-Railways authorities did no t submit the original railway receipt, original forwarding note, transit report, transshipment report, seal and card labels, in absence of which it is not concl usively proved that the wagons were received in SRI condition. The appellant-rai lways authorities could not, except making a general denial in their written sta tement, produce any documentary proof to prove that the railway wagons were foun d intact at the time of delivery of the goods and the railway wagons were admitt edly loaded in safe, sound and secured condition under proper supervision of rai lway booking staff at the booking point, and the loadings were also witnessed, v erified and surveyed by the government approved surveyor agencies and the consig nment was transshipped en-route at the time of delivery. It was also found by th e appellant-railways authorities that all the MG wagons were without seals and a ll the doors were in open condition and on unloading, they found 3762 bags short , for which the appellant-railways issued a certificate to that effect. 9. Having admitted the shortage of delivery of goods, now, the appe llant-Railway authorities cannot turn around and say that the respondent-applica nt is not entitled to compensation for shortage of delivery of goods. 10. Ms. B. Devi, learned standing counsel for the appellant-Railways vehemently submitted that since the booking of the goods were made in terms of the forwarding note, prepared by the consignor that is the respondent-applicant, the appellant-Railways authorities cannot be saddled with the liability of shor t supply of consignment. Learned counsel for the appellant-Railways authorities further vehemently submitted that it is the burden of proof of short supply of t he goods on the respondent-applicant. In support of her contention, learned coun sel for the appellant-Railways relied on a decision, reported in 2002(1) GLT 605 : Sreeniwas Basudeo vs. Union of India & Ors., wherein a single Bench of this C ourt observed as follows: 5. The above contentions cannot be accepted. The forwarding note and the railwa y receipt clearly indicate that the Railway authorities never accepted the weigh t of the bags declared by the sender at the time of booking. The weight said to contain was acted upon only for the purpose of calculation of freight. However , the situation would have been reverse had there been evidence of weighment at the time of booking. Under no circumstances, the remark said to contain can be interpreted as contained . 11. However, in the instant case, unlike in Sreeniwas Basudeo(supra) , the railways authorities themselves found and certified that the MG wagons wer e found without seals and all the doors were in open condition, and on unloading , they also found 3762 bags short, for which they issued certificates. Therefore , the railways authorities, admittedly, having found the bags missing from the r ailway wagons, cannot backtrack from the responsibilities of making the goods lo ss incurred by the respondent-applicant. 12. Learned counsel for the appellant-Railways further relied on a d ecision reported in AIR 1973 Patna 244 : Union of India vs. Shewnath Rai, wherei n a division Bench of Patna High Court held that the onus is on the respondent-a pplicant to establish the quantity of goods dispatched in the wagon and no relia nce can be put on the railway receipt, Bijak and forwarding notes for this purpo se as there is no legal evidence to prove the actual quantity of goods loaded in the wagon. The relevant extracts of the decisions in Shewnath Rai(supra) read a s follows: 11. For the reasons mentioned above, disagreeing with the lower appellate Court , I hold that there is no legal evidence of the actual quantity of the groundnut oil loaded at the dispatching station. The documents relied upon by the lower a ppellate Court in coming to the conclusion that 565 maunds and odd groundnut oil was dispatched from the dispatching station are not such documents from which s uch a conclusion can be legally arrived at. Since there is a want of legal evide nce on this point, I hold that the plaintiff-respondent has failed to prove that there was short delivery of 112 maunds and odd of groundnut oil 13. Learned counsel for the respondent-applicant, by referring to th e Rule 1713 of the Indian Railway Commercial Manual submitted that seals and lab els, etc. should be removed only by the railway staff. 14. Learned counsel for the respondent-applicant further relied on a decision of this Court reported in 1984(1) GLR 276 : M/S Jyoti Flour Miss. Vs. Union of India & Ors., wherein it was observed that since the Railway authoritie s did not produce the forwarding notes, the burden of proving the negligence on the part of the Railways did not shift to the plaintiff and the claimant cannot be lawfully be asked to share the loss equally. The relevant extract of the deci sion reads as follows: 12. In T.M. Veerappa vs. Union of India(supra) it has been held that when goods are sent at the Railway risk and there is shortage in delivery on account of pi lferage in transit, the case comes within the general responsibility of the Rail way administration under sec. 73 and the onus lies upon them to prove that they had taken reasonable care even if the goods were proved to have been defectively packed by the consignor. Section 77-C has no application to such a case. As was held in Union of India vs. Laduram AIR 1974 Calcutta 207(supra) in order that t he railway administration may be absolved of its liability under Section 73 it i s necessary that in the forwarding note not only there should be a recording abo ut the defective or improper packing of the goods but also it should be further recorded that as a result of such defective or improper packing the goods are li able to damage, deterioration, leakage or wastage. Where in the forwarding note only the fact of defective or improper packing has been recorded, but the conseq uence of such defective or improper packing has not been recorded, Section 77C(1 )(b) is not available to the Railway Administration. Similarly in K.R. Rajamanic kam Chettiar vs. Union of India, AIR 1974 Madras 375 it has been held that the r ailway administration cannot escape its liability for loss, destruction etc. by pointing out that such loss was the result of any one of the causes enumerated i n sec. 73. Similar was the finding in Chabildas Manikdas vs. The Union of India, AIR 1980 Andra Pradesh 78, that when any loss, destruction or damage is proved to have arisen from any omission or negligence of the consignor, the Railway Adm inistration is not relieved of its responsibility for the loss, destruction or d amages unless the Railway administration further proves that it has used reasona ble foresight and care in the carriage of the goods . 15. Referring to yet another decision reported in AIR 1997 Rajasthan 123 : Union of India vs. Roop Narayan & Ors., learned counsel for the responden t-applicant submitted that since the Railway administration has failed to prove that the consignments were delivered intact and since no seal labels of the wago ns were produced, the Railway authority cannot be escaped the liability. 16. In view of the above discussions, I am of the view that the Rail way authorities cannot escape the liability of making the loss sustained by the respondent-applicant, which is categorically admitted by the appellant-Railway a uthorities. 17. In view of the above, the appeal filed by the appellant-Railway authorities is devoid of merit, and accordingly, the appeal filed by the appella nt-Railway authorities stands dismissed.