ash 1 fa-712.96 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.712 OF 1996 Union of India. .. Appellant Vs Indian Rayon & Industries Ltd. .. Respondent -- Shri A.N. Samant for the Appellant. Mrs. Sonia Miskin h/f Shri B.L. Chhajed for the Respondent. -- CORAM : A.S. OKA, J DATED : 28TH JUNE, 2011 ORAL JUDGMENT : . Heard learned counsel appearing for the Appellant and the learned counsel appearing for the Respondent. 2. The challenge in this Appeal is to the judgment and order dated 23rd January, 1996 passed by the Railway Claims Tribunal, Bombay. 3. A claim was made by the Respondent-Company of Rs. 72,347.55 by way of compensation for non-delivery of a consignment. 4. The case of the Respondent Company is that a consignment ash 2 fa-712.96 dated 6th August, 1991 of 489 bags of cement was book from Malkhed Road to Pune at Railway Risk rate. It is contended that the consignment was never delivered to the Respondent-Consignee. Reliance is placed on various letters addressed by the Respondent Company to CGC, Pune. By a letter dated 20th January, 1992, a claim was filed by the Respondent. The claim of Rs.53,790/- has been made being the value of the cement together with interest. 5. Various contentions were raised in the written statement including a contention regarding the absence of the statutory notice. The contentions raised by the Respondent were negatived and impugned order was passed directing the Appellant to pay a sum of Rs. 53,790/- with proportionate costs and interest at the rate of 12% per annum from the date of the application till the date of the event. 6. Learned counsel appearing for the Appellant submitted that the entire burden was on the Respondent to prove that a particular quantity of the goods was loaded in the railway wagon. He submitted that one Mr. B.D. Agarwal examined by Respondent had no personal knowledge. He relied upon a decision of this Court dated 16th June, 2004 in Second Appeal No. 725 of 1986 ( Shri Motilal Bhagchand Lodha v. Union of India ). He submitted that when the claim application was decided, the Railway Tribunal was not granting an ash 3 fa-712.96 opportunity to cross-examine the witnesses and, therefore, no cross- examination was made of the witness examined by the Respondent. Learned counsel appearing for the Respondent supported the impugned judgment and order. 7. The initial burden was on the Respondent to prove that the goods were loaded in the railway wagon. The weight mentioned in the railway receipt does not amount to an admission of the correctness of the weight. Therefore, the burden is on the Respondent to prove as to what was the weight of the consignment. 8. Whether the initial burden of proof is discharged or not depends on the facts and circumstances of the case. As far as the judgment in the Second Appeal No.725 of 1996 is concerned, there was a concurrent finding of fact recorded that the Plaintiff could not lead satisfactory evidence about the quality of the coal as well as the exact market value of the coal. In the present case, along with the affidavit in lieu of the examination-in-chief filed by the Respondent of one Shri B.D. Agarwal, the documents were produced on record. The Appellant produced only one document being the forwarding note which is marked as R-1. In the facts of this case, it must be noted that an application dated 20th July, 1995 was moved before the Tribunal by the Respondent calling upon the Appellants to produce several documents ash 4 fa-712.96 including the various reports, trans-shipment registers, registers showing D.D.P.C. wire & messages sent by the Railway servants, T.X.R’s wagon examination report. Prior to making such application,the Advocate for the Respondent had served a notice to produce the documents. The said notice bearing acknowledgment of the Appellant is produced on record. Even Roznama of the proceedings refers to the said application. On 11th October, 1995, the learned Member of the Railway Tribunal noted that the Appellant does not desire to file any reply to the said application. Thus, this is a case where the material documents were withheld by the Appellant and therefore, an adverse inference ought to have been drawn against the Appellant. Perusal of the record shows that there is no application made by the Appellant seeking permission to cross examine the witness Shri B.D. Agarwal who has filed the affidavit in lieu of the evidence. Even if contention of the learned counsel appearing for the Appellant is accepted that the Tribunal never used to permit cross-examination in those days, this is a case where the Tribunal was right in holding that the Respondent had discharged the burden especially in the light of the fact that the Appellant did not produce documents after being called upon. In fact, no reply was filed to the application made by the Respondent calling upon the Appellant to produce the documents. Therefore, in the facts of the case, the Tribunal was right in holding that the burden was discharged by the Respondent. There does not appear to be any ash 5 fa-712.96 dispute as regards booking of a consignment by the Respondent and non-delivery thereof. 9. The Tribunal has granted interest at the rate of 12% per annum. The Tribunal could have always granted interest under the provisions of Section 3 of the Interest Act and under Section 34 of the Code of Civil Procedure, 1908. However, in view of Section 34 of the said Code, there was no warrant for grant of interest at a rate exceeding 6% per annum. To that extent, the impugned judgment and order will have to be modified. 10. Hence, I pass the following order:- (a) The impugned judgment and order is modified only to the extent to which interest at the rate of 12% per annum has been granted and the rate of interest is hereby fixed at 6% per annum instead of 12% per annum. (b) The Appeal is partly allowed on above terms with no orders as to costs. (c) The amount deposited by the Appellant in this Court ash 6 fa-712.96 has been invested in the Fixed Deposit. The Registrar (Judicial-I) will pass necessary order of disbursement of the amount payable to the Respondent with interest accrued thereon in terms of the modified judgment and order. The balance amount be refunded to the Appellant. ( A.S. OKA, J )