FA/2091/1999 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 2091 of 1999 With FIRST APPEAL No. 2092 of 1999 To FIRST APPEAL No. 2095 of 1999 With FIRST APPEAL No. 2097 of 1999 To FIRST APPEAL No. 2099 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== UNION OF INDIA Versus STEEL AUTHORITY OF INDIA LTD ====================================== Appearance : MR BIPIN I MEHTA for Appellant. MR SUNIT S SHAH for Respondent. ====================================== CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 22/08/2008 FA/2091/1999 2/5 JUDGMENT ORAL JUDGMENT 1. By way of these appeals, the appellant has challenged judgment and order dated 7th January 1999 of the Railway Claims Tribunal, Ahmedabad Bench passed in Claim Application No.601 of 1990 and allied matters, whereby the claim applications filed by the respondent herein were allowed by awarding different amounts. 2. The facts in brief, as emerging from record, are as under: 3. The Steel Authority of India-Respondent herein dispatched iron goods from their plant at Bokaro and Bhilai in several wagons to Sabarmati. On arrival of the wagons, the respondent herein found gaps near the doors and loading inside the wagons appeared to be disturbed. Therefore, the respondent herein approached Area Superintendent, Western Railway, Ahmedabad, to give delivery after reweighing the goods, which was refused by the railway. Therefore, the respondent herein took delivery of the goods under protest and got the goods surveyed by a private surveyor and obtained a report showing shortage under various railway receipts. Therefore, the respondent herein approached Railways with the claim as per the certificate issued by surveyor but the railway did not pay any amount to them. Therefore, after serving notice under Section 78B/106 of the Railways Act, the respondent herein filed claim applications for recovery of loss suffered by it. In the said suit, the appellant herein has filed written statement and denied claim for compensation. It is averred in written statement that value of consignment is in dispute and service of notice is not accepted by railway. The appellant has also not accepted report of surveyor showing shortage in the goods. It is also averred that during the course of transit consignment was never handled by railway staff and whatever was loaded was delivered to consignee. It is also averred that since the FA/2091/1999 3/5 JUDGMENT consignment was loaded under 'L' condition, which means loading and unloading was to be done by the party. On the basis of above averments, railway prayed for dismissal of claims of the respondent herein. 4. After considering the evidence on record, railway claims tribunal allowed the applications filed by the respondent herein by impugned order. Being aggrieved by it, the appellant has filed these appeals. 5. Heard learned advocate, Mr.Bipin Mehta for the appellant and learned advocate, Mr.Shah for the respondent. 6. Learned advocate, Mr.Mehta submitted that since the consignment was loaded under 'L' condition, which means that loading and unloading was to be done by the party, the respondent herein cannot claim any compensation. He also submitted that claim of the respondent herein cannot be proved by a report of private surveyor. He also submitted that statutory rules prohibit reweighment and, if required under exceptional circumstances, it can be granted only in accordance with rules and procedure prescribed and there were no exceptional circumstances in the the present case. He also submitted that in similar facts, many claims have been rejected by railway claims tribunal. Therefore, he submitted that these appeals may be allowed by quashing and setting aside impugned order. 7. On the other hand, Mr.Shah has supported the order of the Railway Claims Tribunal and submitted that since the respondent herein has produced witnesses as well as undergone cross-examination in support of its case, it was rightly accepted by the tribunal. He also submitted that factum of shortage in goods is proved by report of surveyor. He also submitted that railway has wrongly not given FA/2091/1999 4/5 JUDGMENT reweighment at the time of delivery of the goods. He, therefore, submitted that the order of the Railway Claims Tribunal may not be disturbed in these appeals. 6. I have considered the submissions made on behalf of the appellants and also gone through the judgment of the Railway Claims Tribunal and other relevant documents. While discussing the evidence on record, Railway Claims Tribunal has observed as under in paragraph 14 to 17 of the judgment: “14. The respondent have also pleaded that goods were loaded under 'L' condition in the siding and whatever was loaded was delivered. Such a reasoning has no basis at all. Forwarding note showing weight has been submitted by the applicant. The Rule returnable on has been made by railway staff showing the weight offered and freight also charged accordingly. In face of all this not to accept their own version of tonnage shown in the Rule returnable on by railway is not reasonable at all. The goods were loaded under railway risk rate and it was for the railway to have proved that there was no negligence and consequent shortage. Certainly the party had grievance, which was not set right by giving reweighment delivery. Therefore, the railway is liable to pay compensation for the shortage declared in the original weighment slip and confirmed in the survey report. 15. The respondent have pleaded that delivery was given under clear receipt and hence there was no shortage. Actually at this initial stage, the claim of the party has been rejected on this basis by CCO by their Jetter available on the file. The contention of the railway that delivery was given under clear signature cannot be accepted because extract of delivery book in 8 cases shows that delivery was taken under protest and not under clear signature. In three cases, the extract of delivery book has not been submitted, and hence no conclusion can be drawn. In one case no.009600031, the delivery book shows only signature and no remarks. However, in such cases, it was best to present the original delivery book to verify the record correctly. Even if in one case, delivery has been taken under FA/2091/1999 5/5 JUDGMENT clear receipt, nothing takes away the right of the claimant to ask for compensation if the shortage was detected. After all, the party has to take delivery only after surrendering RRs, paying dues and signing on the delivery book. 16. With a view to substantiating their shortage, the applicant has also produced witnesses, who have undergone cross examination. They are the surveyors in each case and the SAIL employee in charge. Such cross examination of both the surveyor and SAIL employee also lends support to the fact that shortage existed. 17. As per our discussion above, it is now amply proved that the railway erred in not giving reweightment delivery and forced the applicant to get the goods surveyed by the approved surveyor. The reweightment was done at the weigh bridge of SAIL located in the same siding. The Steel Authority of India Limited are the manufacturers of the iron goods booked and have submitted the original bill of the shortage. We have no difficulty in accepting these bills.” 7. From the above observations, it is clear that the tribunal has considered all the submissions raised by railways and also considered the evidence on record appropriately. I am in complete agreement with the reasonings given and finding arrived at by the Railway Claims Tribunal while passing impugned order. No other evidence is shown to me to take a contrary view. Therefore, I do not find any reason to interfere with the impugned judgment. 8. For the reasons stated herein above, the appeals deserve to be dismissed and the same are dismissed with no order as to costs. (K.S.Jhaveri, J.) *malek