THE HON’BLE SRI JUSTICE C.V.RAMULU CIVIL MISCELLANEOUS APPEAL No.474 of 2005 JUDGMENT: This Civil Miscellaneous Appeal, under Section 23 of the Railway Claims Tribunal Act, 1987, is directed against the order dated 28.03.2005 passed in O.A.No.14 of 2002 on the file of the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, whereunder the application filed by M/s.Agro Food Products-respondent herein against the South Eastern Railways-appellant herein, for refund of Rs.88,603/- collected as undercharges, was allowed with a direction to the Railways to refund Rs.75,087/- only collected by them as undercharges with interest @ 6% per annum on the said amount from the date of application till the final refund. Appellant is the South Eastern Railways located at Kolkata represented by its General Manager. Respondent is M/s. Agro Food Products situated at Vizianagaram. It appears, the respondent Company booked 11 wagons on 11.08.2001 with the appellant Railways, for transportation of wheat from Kanpur to Vizianagaram, and paid the freight charges at Kanpur itself, for which Railway Receipt (R.R.) was issued indicating the carriage of consignment from Kanpur to Vizianagaram via New Khanti Junction (NKJ). But, after the consignment reached Vizianagaram, the Railways computed the freight charges according to the distance of longer route i.e., via Moghalsarai-Gomohon, and collected the differential amount from the Company as undercharges, on the ground of Rationalisation Scheme, which was paid under protest, and later on, the Company filed O.A.No.14 of 2002 before the Railway Claims Tribunal, Secunderabad Bench, Secunderabad, against the Railways, seeking refund of Rs.88,603/- collected as undercharges. For the sake of convenience, the parties are referred to as arrayed in the said O.A.14 of 2002. It was the case of the applicant Company before the Railway Claims Tribunal (hereinafter called as ‘the Tribunal’) that on 11.08.2001 it booked 11 wagons with the respondent Railways for transportation of wheat from Kanpur to Vizianagaram, for which indent was placed at Kanpur for carriage of the consignment via NKJ, being the shortest route, and accordingly, it paid freight charges at the booking station namely Kanpur itself. It was the further case of the applicant that after the consignment reached the destination station i.e., Vizianagaram, the Railways charged the freight applicable for a longer route i.e., Moghalsarai-Gomoh and demanded the differential amount of freight charges, as undercharges, which was paid under protest in order to avoid heavy damage vide money receipt No.993544 dated 04.10.2001, and, therefore, it sought refund of the amount collected as undercharges. The respondent railways filed written statement before the Tribunal denying the allegation that the Railways have arranged the movement of the wagons through a longer route, and stated that, normally, the food grains wagons are carried by the shortest route when there is no specific route restriction, and if there is specific route restriction like Rationalisation Scheme, then the food grains traffic is carried only by the restricted route irrespective of the option given by the applicant for shortest route, and the freight charges for the consignment will be collected as per the distance of the route. It was stated that in the instant case, they have made out a case that inasmuch as the Rationalisation Scheme was in operation at the relevant point of time, as per which all food grains traffic from Northern Railway towards Kharagpur – Waltair are to be routed via Moghalsarai – Gomoh and freight will have to be charged as per the distance of that route only, booking of the consignment by the petitioner Company from Kanpur to Vizianagaram via NKJ is incorrect and, therefore, the destination station i.e., Vizianagaram was responsible to collect the undercharges on the consignment and, as such, the collection of undercharges from the petitioner is neither illegal nor unreasonable. On the basis of the above pleadings, the following issues were settled for trial: “1.Whether the respondent has collected excess freight charges by wrong calculations showing by long route Moghalsarai – Gomoh though the goods were sent by shorter route? 2.To what relief?” On behalf of the applicant, one Ashok Kumar Daga was examined as AW.1 and documents Exs.A1 to A3 were marked. On behalf of the respondent, R.W.1, who was working as the Chief Goods Supervisor at the relevant point of time, was examined and documents Exs.R1 and R2 were marked. The original Railway Receipts, which were produced by the Railways as per the directions of the Court, were marked as Exs.C1 to C11. After detailed consideration of both oral and documentary evidence on record, with regard to issue No.1, the Tribunal observed that the Railways have not adduced any evidence to show that the subject wagons were actually carried via Moghalsarai – Gomoh route, as provided in the Rationalisation Scheme, and also that though the respondent Railways had sufficient time to collect relevant documents to prove that the subject wagons were actually transported by the longer route in accordance with Rationalisation Scheme and not by the route indicated in the Railway Receipt, the Railways have failed to discharge this burden. The Tribunal further observed the evidence of R.W.1, who, in his cross-examination, stated that he was not aware as to the route by which the consignment was actually carried from Kanpur to Vizianagaram and that the Railways did not have any record to show that the consignment traveled via NKJ route or Moghalsarai – Gomoh route. In view of these observations, the Tribunal held that the Railways have not shown anything contrary to the evidence of RW.1. Further, at paragraph 12 of the impugned order, it was held that in a situation where the Rationalisation Scheme is in operation, it is incumbent on the part of the forwarding station to follow the instructions as contained in the said Scheme and collect the freight charges as per the distance at the forwarding Station itself, and if this is failed to be followed, the monetary effect of it cannot be passed on to the customer at the destination station by invoking Rule 1811 of Indian Railway Commercial Manual, and, therefore, the action of the railways in collecting the freight as undercharges at the destination station is wrong and the case of the applicant succeeds. Thus, by the impugned order dated 28.03.2005, the Tribunal allowed the application as stated above. Aggrieved thereby, the present civil miscellaneous appeal is filed. Sri B.H.R. Choudary, learned counsel for the appellant Railways, strenuously contended that inasmuch as the Rationalisation Scheme was in operation at the relevant point of time, booking of the subject consignment from Kanpur to Vizianagaram via NKJ, the shortest route, instead of booking via ‘Moghalsorai – Gomoha’ route as per the Rationalisation Scheme, and collecting the freight charges accordingly, by the forwarding station is incorrect, and, therefore, it was the responsibility of the destination station to collect the difference of freight charges as per the Rationalisation Scheme and, as such, collected the same. Learned counsel further submitted that Section 78(3) of the Railways Act, 1989, empowers the Railways to correct any other error or collect any amount that may have been omitted to be charged, before delivery of the consignment. Learned counsel for the respondent Company supported the impugned order and submitted that the Railway Claims Tribunal gave cogent reasons for allowing the application filed by the respondent Company. It is difficult to agree with the submissions made by the learned counsel for the appellant Railways. Admittedly, the route from Kanpur to Vizianagarm via NKJ was not the route as provided in the Rationalisation Scheme. It is also not in dispute that the Railway Receipt evidences the carriage of consignment from Kanpur to Vizianagaram via NKJ. Apart from this, absolutely there is no evidence placed by the Railways before the Tribunal to show that the subject wagons were transported via Moghalsarai – Gomoh route as provided in the Rationalisation Scheme. In the absence of evidence in this regard and when it is not the case of the Railways that the shortest route opted by the petitioner and as noticed in the R.R., on the basis of which the freight charges were actually collected at the forwarding station, is not available, it must be deemed that the consignment was transported as per the route mentioned in R.R. and freight charges are to be collected on the basis of the route indicated in R.R. only, but the Railways are not justified in charging the freight applicable on the longer route i.e., via Moghalsarai – Gomoh, the route on which the goods were never carried. The Railways either ought not to have accepted the booking of the subject consignment via NKJ, the route through which the applicant wanted to carry his goods, or they could have collected the freight charges as per the Rationalisation Scheme at the forwarding station itself, but collection of difference of freight charges at the destination station on the ground that the goods must be deemed to have been carried via Moghalsarai – Gomoh and, therefore, the applicant is liable to pay the undercharges is most irrational, as was found by the Tribunal. In these circumstances, I am of the considered opinion that the Tribunal has not committed any error calling for interference of this Court under Section 23 of the Railway Claims Tribunal Act and the civil miscellaneous appeal is, therefore, liable to be dismissed. Accordingly, this civil miscellaneous appeal is dismissed. No order as to costs. _____________ C.V.RAMULU,J 05.08.2010 v v