ash 1 fa-1113n977.96 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1113 OF 1996 WITH FIRST APPEAL NO. 977 OF 1996 Union of India. .. Appellant Vs The Tata Iron & Steel Company Ltd. .. Respondent -- Shri A.N. Samant for the Appellant in both the Appeals. Shri Sunil Chavan i/by Mulla & Mulla & Craigie Blunt and Caroe for the Respondent in both the Appeals. -- CORAM ; A.S. OKA, J DATED : 1ST AUGUST, 2011 ORAL JUDGMENT: . These Appeals can be disposed of by a common judgment as certain common issues are involved. 2. The First Appeal No.1113 of 1996 takes an exception to the judgment and order dated 3rd June, 1996 passed by the Railway Claims Tribunal on an application filed by the Respondent. The case made out in the application was that on 27th May, 1991, the Respondent consigned from Tata Nagar Station on the South Eastern Railway a consignment of 56.720 MTs of steel under an invoice bearing RR No. 013089. The destination of the consignment was Kalamboli, a station of Central Railway. The said consignment was booked at the railway rate ash 2 fa-1113n977.96 risk. According to the case, on 16th June, 1991, the 3rd Respondent delivered the consignment at Kalamboli Stock Yard. The consignment was in the broken and tampered condition and only a part weighing 49 MTs of the said consignment was delivered. It is contended that by a letter dated 16th June, 1991 addressed to the Central Railways, the Respondent informed the Central Railways that the consignment was in open condition and sought open delivery after re-weightment. The said request was rejected by the Central Railways by its letter dated 20th June, 1991. According to the Respondent, the request was wrongly rejected. Therefore, the Respondent by its letter dated 21st June 1991 informed the Central Railways that an appointment was fixed on 24th June, 1991 for re-weightment of the consignment by M/s. Indian Surveyors Private Limited and in fact a request was made to the Central Railways to depute its Inspector for joint inspection at the time of re- weightment. Accordingly, on 24th June, 1991 M/s. Indian Surveyors Private Limited carried out inspection and re-weighment of the consignment and found that only a quantity of 49 MTs was found to be delivered after re-weighment, resulting into a shortage. It is alleged that the said short delivery was due to negligence on the part of the 2nd and 3rd Respondents (South Eastern Railways and Central Railways, respectively). After lodging a claim as per Section 78 of the Indian Railways Act, a claim was made for compensation before the Tribunal on the ground that the Respondent has suffered loss. Interest was ash 3 fa-1113n977.96 claimed at the rate of 18% per annum. The claim was contested by the Appellant by filing a written statement. It was contended that the Appellant was not aware as to what happened from 17th June, 1991 till the contents were re-weighed by the private agency. It was denied that there was a short delivery. By the impugned judgment and order, the claim of Rs.87,700/- with proportionate costs and interest thereon at the rate of 12% per annum from the date of filing of the claim application till the date of payment has been granted. 3. The claim application subject of First Appeal No.977 of 1996 also arises out of a consignment booked from Tata Nagar Railway Station in the jurisdiction of the South Eastern Railway to Kalamboli Station. The consignment was of 56.540 MTs of Hot Rolled Steel. The place of destination was Kalamboli. The said consignment was booked under the Railway Receipt No.016621. Even in this case, according to the Respondent, there was a short delivery. The request made for re- weighment of the consignment was declined by the Appellant and, therefore, the Respondent carried out re-weighment through M/s. Indian Surveyors Private Limited. Thereafter, a claim was lodged which was not granted. Therefore, a claim application was filed claiming compensation of Rs.1,00,072.56 ps. The Claim Petition was contested by the Appellant by raising the same contentions which were raised in the Claim Petition subject matter of the companion Appeal. The ash 4 fa-1113n977.96 Railway Claims Tribunal granted compensation of Rs.65,300/- together with interest thereon at the rate of Rs.12% per annum from the date of filing of the Claim Application till the date of payment. 4. Learned counsel appearing for the Appellant submitted that the delivery of consignment was admittedly taken by the Respondent. He submitted that the re-weighment has been carried out by a third party. He submitted that after having accepted the delivery without protest, there was no occasion to make a grievance about the short delivery. His submission is that even according to the case made out by the Respondent, only the Central Railway can be held liable. He submitted that interest at the rate of 12% per annum which has been granted is excessive. He submitted that there was no agreement containing a stipulation to pay interest. He, therefore, submitted that the Railway Claims Tribunal has committed a gross error. 5. I have carefully considered the submissions. There is a finding recorded in both the cases by the Railway Claims Tribunal that before taking delivery, the Respondent had applied for re-weightment and the said request was turned down. Therefore, the Respondent had to carry out re-weighment from a private agency. There is a finding recorded that even a notice of the date and time fixed for re-weighment of the consignment by the private agency was served to the Appellant. ash 5 fa-1113n977.96 The Learned Member of the Railway Claims Tribunal has considered the provisions of the Weighment of Consignments ( in Wagon Load or Train Load) Rules, 1990. After considering the said Rules, in paragraph 9 of the impugned judgment and order subject matter of challenge in First Appeal No.977 of 1996, the learned Member of the Railway Claims Tribunal held thus:- “In this connection, reference is made to Weighment of Consignments ( in Wagon Load or Train Load) Rules, 1990. Under Rule 3 of these Rules, in the case of goods booked at railway risk rates, if the consignee has reason to believe that the wagon offered to him for delivery at destination does not contain the quantity of goods entrusted for carriage, makes a request in writing to the Divisional Commercial Superintendent or any other railway servant authorized in this behalf for the weighment of such consignment at destination station the weighment shall be done subject to the provision of Rule 4. Rule 4 details the circumstances under which the railway servant concerned may disallow such a request. The request for reweighment can be disallowed when the consgingment is received in covered wagon and the seals of the loading station are intact and there is no other evidence of the consignment having been tampered in transit, or, the consignment has been received in open wagon and there is no sign of tampering of the original packing or other evidence of such consignment having been tampered in transit, or, the consignment is of perishable nature and is likely to lose weight in transit or in the opinion of such railway servant, the weighment is not feasible due to congestion in the yard. Now, in the present case, none of these circumstances existed so as to justify the rejection of the Applicant for reweighment." 6. Similar reasons have been assigned in the impugned judgment subject matter of the other Appeal. There were no reasons ash 6 fa-1113n977.96 assigned by the Railways to reject the prayer for re-weighment. Therefore, on the basis of the said Rules of 1990, the learned Member of the Tribunal has held that none of the circumstances existed so as to justify the rejection of the request of the Respondent for re-weighment. There is no reason to find fault with the said finding. 7. The representative of the agency which carried out re- weighment has also been examined. Thus, the short delivery was duly proved. In the circumstances, the order made for payment of compensation is fully justified. 8. The Railway Claims Tribunal has granted interest @ 12% per annum. There was no agreement produced on record to show that the contractual rate of interest is 12% per annum. In view of Section 34 of the Code of Civil Procedure, 1908 which is held as applicable to the Tribunal, the interest at the rate exceeding 6% per annum could not have been granted. 9. Going by the assertions made by the Respondent, the Claim will lie against the Central Railway and not against the South Eastern Railways. However, the liability is of the Union of India. Therefore, this is a matter of internal adjustment between the two Railway Administrations of Union of India which is the Appellant. ash 7 fa-1113n977.96 9. Hence, I pass the following order:- (a) The impugned judgments and orders are modified. (b) It is directed that interest payable will be at the rate of 6% per annum from the date of filing of the claim applications till the date of deposit or realisation. (c) The Appeals are partly allowed on above terms. (d) If the amount deposited by the Appellant either in this Court or Tribunal is found to be in excess of the amount as per the modified judgments and orders, the refund of the balance amount with interest accrued thereon, if any, shall be made to the Appellant. (e) There will be no orders to costs. ( A.S. OKA, J )