1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER 1. S.B.CIVIL MISC. APPEAL NO.663/1992. M/s.Indian Oil Corporation Limited. VERSUS Union of India. 2. S.B.CIVIL MISC. APPEAL NO.668/1992. M/s.Indian Oil Corporation Limited. VERSUS Union of India. 3. S.B.CIVIL MISC. APPEAL NO.669/1992. M/s.Indian Oil Corporation Limited. VERSUS Union of India. 24.02.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.S.Kasliwal ] Mr.K.Verma ] for the petitioner. Mr.S.S.Hasan, for the respondent-U.O.I. ***** REPORTABLE S.B.CIVIL MISC. APPEALS NO.663/92 & 668/92. These two appeals have been filed by the Indian Oil Corporation against the judgment of the learned Railway Claims Tribunal dated 05.08.1992 in Claim Case No.OA-1-165 of 1990 and OA-1-166 of 1990 whereby the claim filed by the Indian Oil Corporation against the Union of India through General Manager, Western Railway, Church Gate, Bombay has been dismissed. The facts, in brief which are common in both the cases, are that the Indian Oil Corporation filed a claim 2 for compensation for the alleged shortage in the quantity of its product which was transported through the Railways from the siding of the Indian Oil Corporation i.e. from Sabarmati to Udaipur City in Appeal No.663/1992 vide RR No.528089 dated 21.10.1987 from Khari Rohar Road to Bais Godam, Jaipur in Appeal No.668/1992 vide RR No.863885 dated 19.04.1988. Both these appeals have been taken up together because the claim has been filed on account of the fact that the tank wagon which was received at the destination the valve of the tank was found leaking resulting in a shortfall in the quantity of the goods. In both the cases, the seals and nut bolts were found in order of the valve and there was no tampering. The dip was taken at the destination station by the appellant- corporation in the presence of the railway authority and as per the case of the appellant-Corporation there was a shortfall in the quantity of the product transported as detected at the destination station. This has given rise to the claim for the shortage of the quantity being filed by the corporation. The Railways denied the claim of the Corporation alleging that the loading of the wagons was carried out at the siding of the Indian Oil Corporation-appellant where the staff of the Railways was not present at the time of loading of the product in the oil tankers and, therefore, the RR that was issued was on the basis of “said to contain”. In the case of “said to contain” RR issued by the Railways, an endorsement is put which 3 reads as follows:- “Loaded by sender in his siding neither loading supervised nor contents and quantity checked by Railway staff. Sealed by sender.” It is said that in common parlance as understood in the Railway terminology the effect of the above endorsement on RR is treated as “said to contain” RR. On the basis of the above, the Railways- respondents denied the claim of the appellant taking the stand that so far as the shortfall is concerned, since they were not associated with the loading or packaging of the material, it is not proved as to how much quantity was in fact loaded in the wagon/tanker as is borne out from the above endorsement and, therefore, they cannot be saddled with the liability for any amount of shortfall claimed on the basis of the quantity as mentioned in the RR. Since the Railways denied the claim, the appellants preferred a claim petition before the learned Tribunal. On the basis of the pleadings, the learned Tribunal framed the following issues:- “Appeal No.663/1992: 1. Whether the tank wagon in question was received at destination station in leaky condition and there was a shortage of 2124 litres of High speed diesel? 2. Whether the tank wagon in question was placed in the applicant's siding and at that time there was no leakage. So, the 4 railway administration is not liable for any shortage or leakage of the consignment in the applicant's siding? 3. Whether the applicant has suffered a loss of Rs.7164/- on account of the above said short delivery and the applicant is entitled to get it? 4. Whether valid notice under Section 78B of the Indian Railways Act has not been given by the applicant? 5. Relief? Appeal No.668/1992: 1. Whether 41820 litres MS was booked and loaded in the tank wagon by the consignor of the suit consignment? 2. Whether tank wagon was found leaking from bottom valve at the destination station and a joint dip was taken and shortage was found 2240 litres MS? 3. Whether the applicant has suffered a loss of Rs.17,639/- on account of the above said short delivery? 4. Whether the loading was not supervised and verified by the railway administration and “said to contain” RR was issued. So, the railway administration is not responsible for the shortage? 5. Relief?” The learned Tribunal relying upon the endorsement in the RR came to the conclusion that since the loading was carried out by the appellant- Corporation itself at its siding and it was not supervised by the Railway Staff and the consignment was sealed by the sender itself and the seals have not 5 been tempered with and the nut-bolts were intact the Railways-respondent herein cannot be held liable in such a case. Learned counsel for the appellant submitted stressing on the Railways Receipts that the quantity of goods which were put in the tankers have been specified in the RR which has been prepared by the Railways and on the basis of the weight and the quantity of the goods the Railways has charged the freight and at the destination there has been a shortage on account of leakage. The quantity which has been received if deducted from the quantity which finds mentioned in the RR which is the quantity for which the freight has been charged by the Railways, the Railways could easily have been saddled with the liability for the difference of the quantity between the quantity for which the freight has been charged, which would be the quantity which has been packed at the Railways siding by the Corporation and the quantity which has been received at the destination. Learned counsel in this behalf relied upon the decisions in the case of Union of India and Bharat Petroleum Corporation Limited reported in II (2002) ACC 411 and in the case of M/s.Parmeshwar Lal Murarka & Company Vs. Union of India & Others reported 1992(1) RLW 599. In response to the aforesaid submissions of the learned counsel for the appellant, learned counsel appearing for the respondents submitted that in the 6 present case, the facts which have come on record are that the goods were loaded by the Corporation at their own siding and under their own supervision in which the Railway administration and staff was not associated. What was the quantity of the goods that was actually loaded is a fact to be proved by the consignor-claimant as the Railways on their part have only accepted the goods with the endorsement of “Said to contain” reading “Loaded by sender in his siding neither loading supervised nor contents and quantity checked by Railway staff. Sealed by sender”. He submits that the claimant has failed to prove and discharge the burden initially which lies upon the consignor to show that the quantity which has been mentioned in the RR was in fact loaded by the consignor in the wagon in question. He submits that until and unless the aforesaid burden is discharged, the question of holding the Railways responsible for any shortage does not arise even if there was a leakage at the valve of the tanker/wagon as detected at the destination, as without proving the fact as to what was the quantity of goods packed at the time of dispatch, the quantity of shortage cannot be ascertained so as to quantify the amount of damages on account of shortfall or loss in transit. I have carefully considered the rival submissions and I have gone through the record and judgment of the learned trial court. In the case of Union of India Vs. Bharat Petroleum Corporation Limited (supra) decided by the learned 7 Single Judge of the Madhya Pradesh High Court, the learned Judge held the Railways responsible and liable for the shortfall holding that none prevented the Railways from being present and supervising, checking and loading the goods and since the Railways have accepted the weight, as declared by the Corporation, it cannot be absolved from the liability by applying dual standards i.e. one for charging the fare and other so far as denying the liability is concerned based upon the endorsement. So far as the decision of this court in the case of M/s.Parmeshwar Lal Murarka & Company Vs. Union of India & Others (surpa) is concerned, it was a case where the consignment reached after two months i.e. from the date of dispatch and some of the tins were found empty as well as damaged. This learned trial court, as held in para 4 of the said report, had placed the burden for proving negligence and mismanagement on the defendants i.e. Union of India (Railway) and the Union of India had failed to discharge the burden by not producing any evidence and the defendant was thus, held liable for the damages. Having heard learned counsel for the parties and having considered the above submissions along with the judgments referred to, I am of the view that initial burden to show that the quantity, as alleged by the Indian Oil Corporation was packed in the wagon lies with the Indian Oil Corporation-appellant/claimant. The Hon'ble Supreme Court had occasion to decide the 8 similar question in the case of Hari Sao and Another V.s State of Bihar reported in AIR 1970 SC 843 and in para 10 and 11 of the said report relying upon the decision of Nagpur High Court in the case of Dominion of India Vs. Firm Museram Kishunprasad reported in AIR 1950 Nagpur 85 and Madras High Court in the case of Union of India Vs. S.P.L.Lakhu Reddiar reported in AIR 1956 Madras 176, their Lordships of the Hon'ble Supreme Court in para 10 and 11 of the said report, have laid down as follows:- “10. In Dominion of India V. Firm Museram Kishunprasad, AIR 1950 Nag 85 a railway receipt was issued to the consignor qualified with the statement that the wagon was said to contain 255 bags of coconuts. As only 251 bags were received at the destination, the plaintiff made a claim for the price of the 4 bags of coconuts by way of damages. It was held by the Nagpur High Court that there was no proof that 255 bags had in fact been loaded. Referring to Rule 22 of the Gods Tariff General Rules it was said that the receipt issued “qualified the number of stating that the wagon was 'said to contain' 255 bags ..... and the number was mentioned merely to calculate the freight.” Reference was also made to Rule 15 under which the mentioning of the weight in the railway receipt did not amount to an admission of the correctness of the statement and according to Nagpur High Court “this rule applies with even more vigour where the railway receipt in addition contains the 'said to contain' remark.” 11. In Union of India V. S.P.L.Lakhu Reddiar, AIR 1956 Mad 176 a claim was made against the railway for short delivery of 11 bags. The railway receipt showed that the wagon was said to contain 200 bags of white toor. It was urged there that as the 9 seals were intact at the end of the journey the responsibility for the shortage must lie with the railway. It was pointed out that there would be so if the railway staff had loaded the goods after verifying them and in the circumstances of the case the railway could not be held responsible for any shortage so long as there was no proof of tampering with the seals. The decision in the Nagpur case (supra) was followed in Madras and it was held that the endorsement to the effect that the consignment was 'said to contain' a certain number of bags did not amount to any admission on the part of the railway administration that the said number of bags had in fact been loaded.” (Emphasis supplied.) Based upon the above judgment of Nagpur and Madras High Courts, the Hon'ble Supreme, as in the case at hand was dealing with a case where the Railway Receipt made mention that the consignment contained 251 bags of chillies with letters “L/U” endorsed meaning that the responsibility for loading and unloading vested with the consignor. The wagons on reaching the destination were found to contain only 197 bags of chaff. In these facts, their Lordships of the Hon'ble Supreme Court held in para 8 of the report as follows:- “..... The question therefore arises as to whether the railway ran any additional risk or liability in acting upon the representation of the appellants and mentioning in the railway receipt the goods consigned were said to be 251 bags of chillies when in fact they were only 197 bags of straw. There can be little doubt that the railway did not run any additional risk. In case the goods were consumed by fire or even stolen from the 10 wagon due to any negligence on the part of railway administration the owner would have to prove that he had put on rail 251 bags of chillies. He would also have to prove the weight of the chillies and the approximate value thereof. For this he would have to call evidence to show how and when he acquired the goods and the price he paid for them and exactly what quantity he loaded in the wagons. There would be no presumption that the goods put in the wagon were chillies because the railway did not accept the consignment as such and described it as 251 bags allegedly containing chillies. Nor was there any acceptance of the weight of the goods by the railway. The endorsement 'S.W.A.' would negative the plea, if any, that the weight was accepted by the railway. The endorsement “L/U” emphasised that the loading and unloading being in charge of the consignor the railway could not be held liable for any negligence in loading or unloading.” (Emphasis supplied.) Relying upon the aforesaid judgment of the Hon'ble Supreme Court, the Orissa High Court in the case of Union of India Vs. Aluminum Industries Limited reported in AIR 1987 Orissa 149 while first dealing with the judgment of Nagpur High Court in Dominion of India Vs. Firm Museram Kishunprasad (supra) and Madras High Court in the case of Union of India Vs. S.P.L.Lakhu (supra) and a Division Bench judgment of the Orissa High Court in the case of Orient Paper Mills Ltd. Vs. Union of India reported in AIR 1984 Orissa 156, has held as follows:- “..... that in a suit for damages for loss of goods against the Railway Administration, the onus lies on the plaintiff to establish the 11 actual loading of the goods for the loss of which the claims have been made.....” (Emphasis supplied.) Dealing with the shortage certificate issued at the destination, the Division Bench of the Orissa High Court in para 8 of the said report held as follows:- “8. A shortage certificate amounts neither to an acknowledgment of liability nor holds out any hope to the consignee as to the time of delivery and is merely evidence of actual event that certain goods or articles have fallen short with reference to what the plaintiff states to have been despatched. A shortage certificate is no proof of the fact that the quantum of goods claimed to have been despatched has actually been despatched unless the fact of despatch of the quantum of goods is actually established. In this connection, reference may be made to the principles laid down in (1962) 28 Cut L T 540 : (AIR 1963 Orissa 31), Union of India V. Prakash Ch. Sahu.” (Emphasis supplied.) Similarly, in the case of Union of India Vs. Chotelal Shewnath Rai reported in AIR 1973 Patna 244, which was relied upon by the Division Bench of the Orissa High Court it has been laid down as under:- “.....mere mention of a particular weight on the railway receipt and the forwarding note for the purpose of calculating the freight charge, no admission on the part of the railway as to the correctness of the weight of the goods loaded can be made out to fix up the liability.” Thus, dealing with the above, the Division Bench 12 of the Orissa High Court came to the finding in para 11 as follows:- “11. There is no legal evidence to come to a finding that 1122 pieces of aluminium ingots had actually been loaded in the wagon at the consignor's siding at Renukoot. Apart from the shortage certificate (Ext.5) and the description given in the railway receipt (Ext.A), there is no proof in support of the impugned finding that actually the consignor had loaded 1122 pieces of aluminium ingots at the siding of the consignor for delivery to the plaintiff at Sambalpur. The suit, mainly based on the shortage certificate and the railway receipt, the evidentiary value of which has been discussed above, was not to be decreed by the trial Court. There is no legal basis for a finding that there had been shortage of 252 pieces of aluminium ingots. There was no evidence, as earlier indicated, that the railway staff had supervised the loading and sealing of the wagon at the siding of the consignor and this should not have been assumed, as has been done by the learned subordinate Judge.” Thus, I find from the law that has developed on the judgment of Nagpur, Madras, Orissa and Patna High Courts and the Hon'ble Supreme Court is that the claimant must prove the actual entrustment and loading of the consignment in its quantity and the nature of the consignment as well as its value. It is only after that the actual loading of the actual goods with its quantity and quality and value is established that the Railway establishment can be held liable for any shortfall or damage at the destination, as has been held in the above judgment. 13 The judgment of the M.P.High Court in the case of Union of India Vs. B.P.C.L. (supra) and of this Court in the case of M/s.Parmeshwar Lal Murarka & Co. (supra) wherein the burden was placed upon the Railways being contrary to the law laid down by the Hon'ble Supreme Court cannot with respect be said to be binding. In the facts and circumstances, therefore, since the finding of the learned Tribunal is that the appellant failed to establish the actual quantity of the goods that were loaded cannot hold the Railways liable merely because of the fact that RR contains the weight on which basis the Railways has charged the freight. Even assuming that there was a shortfall, as alleged on the basis of the alleged shortage certificate which too has not been held to be of much help, the quantity of the shortfall cannot be ascertained by merely taking the weight and the measure of the quantity which has been received at the destination. In the facts and circumstances, the appellant failed to discharge the onus placed upon it in both the claims from which these appeals have been filed against the judgment of the learned Tribunal. In the light of the above discussion these appeals against the judgment of the learned Tribunal fail and accordingly stand dismissed. There shall be no order as to costs. S.B.CIVIL MISC. APPEAL NO.669/1992 14 So far as the appeal No.669/1992 is concerned, the facts are slightly different but there, in my opinion, would have no difference so far as the merits of the claim in the appeal is concerned. The facts in the present appeal are that the Corporation alleged that certain quantity of Motor Spirit (Petrol) was dispatched by the Corporation from its siding at Kharivohar to Hanumangarh vide RR No.495397 dated 07.06.1987. The wagon No.5488 in which the said Motor Spirit of 41210 Litres was booked became sick on the way. Enroute, the quantity of Motor Spirit (Petrol) in the said wagon was transhipped to another tank wagon and the measurement taken at the said station enroute. When the transshipped wagon reached the station, the quantity was again checked and as per the corporation, there was a shortfall in the quantity giving rise to the claim. The Railway Administration on receiving the claim from the Corporation was at first agreeable to settle the claim for 50% of the amount claimed which was not accepted by the Corporation and, hence, a claim came to be filed. The Corporation was not willing to accept the offer of the Railways because as per the Corporation, the dip at the booking station at Kharivohar was 214.1 cm and at the transshipped station when the dip was taken, it was found to be 205.4 cm and at the destination station when the dip was taken, the quantity was found to be 190.0 cm. 15 Based upon the above, the shortage of 3438 litres was said to have occurred based upon the measure taken at Kharivohar and at the destination. The Corporation claimed the damages for the loss on the basis of their claim based upon the dip of original quantity said to have been loaded as 214.1 cm at the loading station, whereas the Railways were willing to accept the loss on the basis of the measurement taken in their presence at the transshipment point where the dip was found to be 205.4 cm which was done in the presence of both the parties. The learned Tribunal accepted the measurement as 205.4 cm, which measurement was jointly taken and conducted by the Corporation and the Railways and taken at the transshipment point, and calculated the shortfall on the basis of the difference based upon the shortage between the measurement taken at the transshipment point and the destination station. In view of what has been held while deciding the appeals No.663/1992 and 668/1992, since the actual quantity loaded at the booking station has not been proved, the same principle would be applicable so far as the present appeal No.669/1992 is concerned and since the only quantity which has been proved is 205.4 cm at the transshipment point enroute, the learned Tribunal, in my opinion, has not committed any error in allowing the claim on the basis of the difference based upon the shortage between the measurement taken at the transshipment point and the destination station. 16 This appeal accordingly fails and is hereby dismissed. There shall be no order as to costs. (DALIP SINGH),J. Solanki DS, Jr.P.A.