Allahabad High Court
Bharat Petroleum Corporation ... vs Union Of India Thro General Manager ... on 19 September, 2023
Author: Saurabh Lavania
Bench: Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Neutral Citation No. - 2023:AHC-LKO:59811 Reserved On 05.07.2023 Delivered On 19.09.2023 Court No. - 18 Case :- FIRST APPEAL FROM ORDER No. - 49 of 2018 Appellant :- Bharat Petroleum Corporation Ltd.Through Power Of Attorney Respondent :- Union Of India Thro General Manager Northern Railway N.Delhi Counsel for Appellant :- Sm Singh Royekwar,Mohammad Ehtesham Khan Counsel for Respondent :- Arun Kumar Verma,Neerav Chitravanshi with Case :- FIRST APPEAL FROM ORDER No. - 923 of 2017 Appellant :- Bharat Petroleum Corporation Ltd. Thru.Its Constituted Power Respondent :- Union Of India Thru Its General Manager Northern Railway Counsel for Appellant :- Sm Singh Royekwar,Mohammad Ehtesham Khan Counsel for Respondent :- Arun Kumar Verma with Case :- FIRST APPEAL FROM ORDER No. - 926 of 2017 Appellant :- Bharat Petroleum Corporation Ltd. Thru.Its Constituted Power Respondent :- Union Of India Thru Its General Manager Northern Railway Counsel for Appellant :- Sm Singh Royekwar,Mohammad Ehtesham Khan Counsel for Respondent :- Arun Kumar Verma with Case :- FIRST APPEAL FROM ORDER No. - 929 of 2017 Appellant :- Bharat Petroleum Corporation Ltd. Thru.Its Constituted Power Respondent :- Union Of India Thru Its General Manager Northern Railway Counsel for Appellant :- Sm Singh Royekwar,Mohammad Ehtesham Khan Counsel for Respondent :- Mahendra Kumar Mishra with Case :- FIRST APPEAL FROM ORDER No. - 931 of 2017 Appellant :- Bharat Petroleum Corporation Ltd. Thru.Its Constituted Power Respondent :- Union Of India Thru Its General Manager Northern Railway Counsel for Appellant :- Sm Singh Royekwar,Mohammad Ehtesham Khan Counsel for Respondent :- Arun Kumar Verma with Case :- FIRST APPEAL FROM ORDER No. - 47 of 2018 Appellant :- Bharat Petroleum Corporation Ltd.Through Its Power Attorney Respondent :- Union Of India Through Its General Manager Northern Railway Counsel for Appellant :- Sm Singh Royekwar,Mohammad Ehtesham Khan Counsel for Respondent :- Mahendra Kumar Mishra,Anuj Dayal,Mrs.Suniti Sachan with Case :- FIRST APPEAL FROM ORDER No. - 224 of 2018 Appellant :- Bharat Petroleum Corporation Limited Through General Manager Respondent :- Union Of India Through General Manager Northern Railway Counsel for Appellant :- Sm Singh Royekwar,Mohammad Ehtesham Khan Counsel for Respondent :- Mahendra Kumar Misra with Case :- FIRST APPEAL FROM ORDER No. - 225 of 2018 Appellant :- Bharat Petroleum Corporation Limited Throu General Manager Respondent :- Union Of India Through General Manager Northern Railway Counsel for Appellant :- Sm Singh Royekwar,Mohammad Ehtesham Khan Counsel for Respondent :- Arun Kumar Verma,Neerav Chitravanshi Hon'ble Saurabh Lavania,J.
1. As the issue involved in all these appeal(s), broadly, is similar as such with the consent of the learned counsel for the parties, the same are being decided by this common order.
2. Heard Sri M.E. Khan alongwith Sri Shashank Mishra, learned Counsel for the appellant and Sri Arun Kumar Verma as also Sri Mahendra Kumar Mishra, learned Counsel for the respondent-Railway.
3. All the appeal(s), indicated above, were filed by Bharat Petroleum Corporation Limited (in short "BPCL"), under Section 23 of The Railway Claims Tribunal Act, 1987 (in short "Act of 1987"), challenging the award(s) passed by the Railway Claims Tribunal (in short "Tribunal"), at Lucknow in the case(s) detailed here under:-
Sl. No. Case No. Parties Name Amount Claimed Dismissed On
1.
OA/I/04/09 BPCL vs. Union Of India Rs.10,19,849/-
06.10.2017
2. OA/I/07/09 BPCL vs. Union Of India Rs.1,65,452/-
25.11.2016
3. OC/I/10/2010 BPCL vs. Union Of India Rs.3,54,010/-
25.08.2017
4. OA/I/32/2012 BPCL vs. Union Of India Rs.1,88,626/-
15.09.2017
5. OA/I/33/2012 BPCL vs. Union Of India Rs.1,58,451/-
15.09.2017
6. OA/I/03/14 BPCL vs. Union Of India Rs.4,32,279/-
04.11.2016
7. OC0400030 BPCL vs. Union Of India Rs.1,35,100/-
01.12.2016
8. OC0400045 BPCL vs. Union Of India Rs.3,41,542/-
21.04.2017
4. In all the case(s), indicated above, the Tribunal dismissed the claim petition(s) preferred by BPCL.
5. It would be apt to refer that all the appeals were filed along with the application(s) for condonation of delay duly supported with an affidavit and after taking note of the facts and circumstances indicated therein, this Court condoned the delay and now all the appeals can be heard and decided on merits. The relevant record of the Tribunal pertaining to the case(s) indicated above is also available.
6. The relevant facts, in brief, related to all the appeals are to the effect that the BPCL loaded the consignment/petroleum product from its siding meaning thereby the petroleum product, which is subject matter of all the appeal(s), was not loaded at a siding belonging to Railway Administration and undisputedly at the time of loading of petroleum product in the wagon(s), no Goods Clerk or any other Staff of Railway Administration was present for tallying or supervising the petroleum product loaded in the wagon(s) and the petroleum product loaded by BPCL was unloaded at a siding of BPCL and just prior to unloading of the same, at the request of BPCL, the 'Joint Dip Certificate(s)' were prepared and as per these Certificate(s), the shortage was found in petroleum product loaded in the wagon(s) by BPCL at its siding.
7. In all the 'Joint Dip Certificate(s)', it has been indicated that "RA 1989, AR-94-(2), RLY not responsible for any shortage".
8. It would be apt to refer that the Railway receipt(s) related to claim(s), in issue, were issued to BPCL with remark(s) namely 'S/C' (said to contain), 'SWA' (senders' weight accepted) and 'loading not supervised by Railway Staff'.
9. It would also be apt to take note that the BPCL has not stated that the receipt(s) issued by Railway Administration to BPCL were not with remark(s) namely 'S/C' (said to contain) SWA (senders' weight accepted), 'loading not supervised by Railway staff' as also remark on 'Joint Dip Certificate(s)' before the Tribunal.
10. In the aforesaid factual background, claim petition(s), cases indicated above, were filed on the basis of 'Joint Dip Certificate(s)'.
11. In support of the pleas taken, the BPCL adduced the evidence by way of affidavit(s) except in one Case i.e. Case No.OC0400030.
12. The affidavit(s) of evidence were not filed by a responsible person present at the siding of the BPCL fromwhere the petroleum product was loaded in the wagon(s) and which was subsequently delivered at the place indicated by BPCL and this aspect of the case can be taken note of from the following details:-
(i) In Case No.OA/I/04/09, the affidavit of evidence was filed by Sri Baldev, Senior Assistant-Claims at the Office of General Manager, Bharat Petroleum Corporation Ltd., Regional Office at Plot No. 5 & 6, Sector-1, Noida, U.P.
(ii) In Case No.OA/I/07/09, the affidavit of evidence was filed by Sri Baldev, Assistant-Claims at the Office of General Manager, Bharat Petroleum Corporation Ltd., Regional Office at Plot No. 5 & 6, Sector-1, Noida, U.P.
(iii) In Case No.OC/I/10/2010, the affidavit of evidence was filed by Sri Baldev, Senior Assistant-Claims at the Office of General Manager, Bharat Petroleum Corporation Ltd., Regional Office at Plot No. 5 & 6, Sector-1, Noida, U.P.
(iv) In Case No.OA/I/32/2012, the affidavit of evidence was filed by Sri Baldev, Senior Assistant-Claims at the Office of General Manager, Bharat Petroleum Corporation Ltd., Regional Office at Plot No. 5 & 6, Sector-1, Noida, U.P.
(v) In Case No.OA/I/33/2012, the affidavit of evidence was filed by Sri Baldev, Senior Assistant-Claims at the Office of General Manager, Bharat Petroleum Corporation Ltd., Regional Office at Plot No. 5 & 6, Sector-1, Noida, U.P.
(vi) In Case No.OA/I/03/14, the affidavit of evidence was filed by Sri Baldev, Senior Assistant-Claims at the Office of General Manager, Bharat Petroleum Corporation Ltd., Regional Office at Plot No. 5 & 6, Sector-1, Noida, U.P.
(vii) In Case No.OC0400030, the affidavit of evidence of BPCL was not filed.
(viii) In Case No.OC0400045, the affidavit of evidence was filed by Sri Baldev, Senior Assistant-Claims at the Office of General Manager, Bharat Petroleum Corporation Ltd., Regional Office at Plot No. 5 & 6, Sector-1, Noida, U.P.
13. The claim of the BPCL in all the claim petitions was opposed by the Railway before the Tribunal. It appears from the record available before this Court that the Railway based upon the provisions of The Railways Act, 1989 (in short "Act of 1989") and remark(s) upon the railway receipt(s) as also 'Joint Dip Certificate(s)' opposed the claim(s) of BPCL and based upon the same the Railway stated that there is no liability on the Railway Administration. Stand of Railway before the Tribunal was to the effect that the petroleum product was not loaded at a siding of Railway and the loading was not supervised by the Goods Clerk/Staff of Railway and was required to be delivered by the Railway Administration at a siding not belonging to Railway Administration and accordingly, the Railway, as per law, shall not be responsible for any loss of such consignment for whatever cause arising after the wagon(s) containing the consignment has been placed at the specified point of interchange. The Railway denied the claim(s) of the BPCL by saying that the loading, sealing and tightening of the valves etc. is always done by the BPCL or its servants at the siding belonging to BPCL and the Railway receipt(s) were issued with remark(s) i.e. 'S/C' ('said to contain'), 'SWA' ('senders' weight accepted') 'loading not supervised by the Railway Staff' and as such a conjoint reading of relevant provisions of the Act of 1989 and these remark(s) make the point crystal clear that the Railway would not be responsible for any loss, if any, occurred during transshipment/transportation.
14. Taking note of the facts that the petroleum product was loaded by BPCL at a siding not belonging to Railway Administration for carriage by Railway and Goods Clerk or any other Staff for tallying or supervising petroleum product loaded by BPCL in the wagon(s) was not deputed by the Railway at the siding of BPCL as also the relevant provisions of the Act of 1989 and remark(s) on the receipt(s) and 'Joint Dip Certificate(s)', the Tribunal rejected the claim of the BPCL, as appears from the order(s), under appeal(s).
15. For causing interference in the order(s), under appeal(s), Mohammad Ehtesham Khan, learned counsel appearing for the appellant/Bharat Petroleum Corporation Ltd. stated that the Tribunal failed to consider and appreciate the relevant provisions i.e. Sections 93, 94 and 110 of the Act of 1989 in its true spirit while rejecting the claim of the BPCL. He also submitted that the shortage of petroleum product was apparent from the 'Joint Dip Certificate(s)' and the same was due to mishandling, negligence, carelessness and misconduct on the part of respondent and/or their servants/agents and despite the same, the Tribunal rejected the claim of the BPCL in utter arbitrary and mechanical manner. The BPCL discharged its burden of proof regarding shortage and on the other hand, the Railway Administration failed to discharge its burden of proof as required under Sections 93, 94 and 110 of the Act of 1989. Thus, the order(s) are liable to be interfered with and the appeal(s) are liable to be allowed with a direction upon Railway to pay the amount claimed in claim petition(s) alongwith due interest.
16. In support of his submission, Sri Khan placed reliance on the judgment passed by the Delhi High Court in FAO No.249 of 2016 (Union of India Vs. M/S Steel Authority of India Ltd.) decided on 12.01.2018 and the judgment by this Court in First Appeal From Order Defective No.182 of 2003 (Union of India Vs. M/S Indian Oil Corporation) decided on 14.02.2013.
17. Opposing the appeal(s), Sri Arun Kumar Verma and Sri Mahendra Kumar Mishra, learned counsel appearing for the Railway stated that before the Tribunal all the claim petition(s) were opposed by filing written statement(s) and in support of pleas taken in written statement(s), the affidavit(s) of evidence were also filed in some cases. A conjoint reading of pleas taken in written statement(s) as also the relevant provisions of the Act of 1989 and remark(s) on the 'Joint Dip Certificate(s)' and on the Railway receipt(s) would show that no liability can be fastened on the Railway Administration.
18. Further stated that no doubt as per 'Joint Dip Certificate(s)', the material, which was loaded by the BPCL in the tank(s)/wagon(s) was not found appropriate. However, the fact remains that the consignor namely BPCL loaded the material at a siding belonging to BPCL and receipt(s) therefor were issued under qualified remark(s) namely 'S/C' (said to contain), 'SWA' (Sender's Weight Accepted), 'loading not supervised by Railway staff' and in view of said remark(s) as also the remark(s) on the 'Joint Dip Certificate(s)', which was accepted without any protest, more particularly the remark 'As per RA 1989 AR 94(II) Rly is not responsible for any shortage', the Railway is not responsible for any shortage or loss and being so, the Tribunal rightly rejected the claim of the BPCL and being so the order(s) impugned passed by the Tribunal are not liable to be interfered with by this Court.
19. Learned counsel appearing for the Railway placed reliance on the following judgments:-
(i) Union of India Vs. Jugal Kishore Khandelwal : AIR 1988 Orissa 113;
(ii) Union of India Vs. Steel Authority of India Ltd. : (2004) 12 AP CK 0115;
(iii) Union of India Vs. Aluminium Industries Limited : 1986 LawSuit (Ori) 79;
(iv) Steel Authority of India Limited Vs. Union of India : reported in 2017:DHC:4760.
20. Considered the submissions made by the learned counsel for the parties and perused the record.
21. In the aforesaid background of the case, the issue before this Court is to the effect that as to 'Whether the claim(s) of the BPCL, in the case(s) indicated above based upon the 'Joint Dip Certificate(s)', were rightly rejected by the Tribunal'.
22. In order to come to the conclusion on the aforesaid issued involved in the present appeal(s), this Court finds it appropriate to refer certain provisions of the Act, 1989 and the relevant paragraph of the Indian Railway Commercial Manual, which have been indicated.
"Relevant provisions of Railway Act, 1989 Section 62. Conditions for receiving, etc., of goods.
(1) A railway administration may impose conditions, not inconsistent with this Act or any rules made thereunder, with respect to the receiving, forwarding, carrying or delivering of any goods.
(2) A railway administration shall maintain, at each station and at such other places where goods are received for carriage, a copy of the conditions for the time being in force under sub-section (1) and make them available for the reference of any person during all reasonable hours without payment of any fee.
Section 63. Provision of risk rates.
(1) Where any goods are entrusted to a railway administration for carriage, such carriage shall, except where owner's risk rate is applicable in respect of such goods, be at railway risk rate.
(2) Any goods, for which owner's risk rate and railway risk rate are in force, may be entrusted for carriage at either of the rates and if no rate is opted, the goods shall be deemed to have been entrusted at owner's risk rate.
Section 64. Forwarding note.--
(1) Every person entrusting any goods to a railway administration for carriage shall execute a forwarding note in such form as may be specified by the Central Government:
Provided that no forwarding note shall be executed in the case of such goods as may be prescribed.
(2) The consignor shall be responsible for the correctness of the particulars furnished by him in the forwarding note.
(3) The consignor shall indemnify the railway administration against any damage suffered by it by reason of the incorrectness or incompleteness of the particulars in the forwarding note.
Section 65. Railway receipt.--
(1) A railway administration shall,--
(a) in a case where the goods are to be loaded by a person entrusting such goods, on the completion of such loading; or
(b) in any other case, on the acceptance of the goods by it, issue a railway receipt in such form as may be specified by the Central Government.
(2) A railway receipt shall be prima facie evidence of the weight and the number of packages stated therein:
Provided that in the case of a consignment in wagon-load or train-load and the weight or the number of packages is not checked by a railway servant authorized in this behalf, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight or, as the case may be, the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee.
Section:73 Punitive charge for overloading a wagon.
Where a person loads goods in a wagon beyond its permissible carrying capacity as exhibited under sub-section (2) or sub-section (3), or notified under sub-section (4), of section 72, a railway administration may, in addition to the freight and other charges, recover from the consignor, the consignee or the endorsee, as the case may be, charges by way of penalty at such rates, as may be prescribed, before the delivery of the goods:
Provided that it shall be lawful for the railway administration to unload the goods loaded beyond the capacity of the wagon, if detected at the forwarding station or at any place before the destination station and to recover the cost of such unloading and any charge for the detention of any wagon on this account.
Section 78. Power to measure, weigh, etc. Notwithstanding anything contained in the railway receipt, the railway administration may, before the delivery of the consignment, have the right to--
(i) re-measure, re-weigh or re-classify any consignment;
(ii) recalculate the freight and other charges; and
(iii) correct any other error or collect any amount that may have been omitted to be charged.
Section 79. Weighment of consignment on request of the consignee or endorsee.
A railway administration may, on the request made by the consignee or endorsee, allow weighment of the consignment subject to such conditions and on payment of such charges as may be prescribed and the demurrage charges if any:
Provided that except in cases where a railway servant authorised in this behalf considers it necessary so to do, no weighment shall be allowed of goods booked at owner's risk rate or goods which are perishable and are likely to lose weight in transit:
Provided further that no request for weighment of consignment in wagon-load or train-load shall be allowed if the weighment is not feasible due to congestion in the yard or such other circumstances as may be prescribed.
Section 93. General responsibility of a railway administration as carrier of goods.
Save as otherwise provided in this Act, a railway administration shall be responsible for the loss, destruction, damage or deterioration in transit, or non-delivery of any consignment, arising from any cause except the following namely:--
(a) act of God;
(b) act of war;
(c) act of public enemies;
(d) arrest, restraint or seizure under legal process;
(e) orders or restrictions imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorised by it in this behalf;
(f) act or omission or negligence of the consignor or the consignee or the endorsee or the agent or servant of the consignor or the consignee or the endorsee;
(g) natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods;
(h) latent defects;
(i) fire, explosion or any unforeseen risk:
Provided that even where such loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the aforesaid causes, the railway administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery unless the railway administration further proves that it has used reasonable foresight and care in the carriage of the goods.
Section 94. Goods to be loaded or delivered at a siding not belonging to a railway administration.--
(1) Where goods are required to be loaded at a siding not belonging to a railway administration for carriage by railway, the railway administration shall not be responsible for any loss, destruction, damage or deterioration of such goods from whatever cause arising, until the wagon containing the goods has been placed at the specified point of interchange of wagons between the siding and the railway administration and a railway servant authorised in this behalf has been informed in writing accordingly by the owner of the siding.
(2) Where any consignment is required to be delivered by a railway administration at a siding not belonging to a railway administration, the railway administration shall not be responsible for any loss, destruction, damage or deterioration or non-delivery of such consignment from whatever cause arising after the wagon containing the consignment has been placed at the specified point of interchange of wagons between the railway and the siding and the owner of the siding has been informed in writing accordingly by a railway servant authorised in this behalf.
Section 97. Goods carried at owner's risk rate.
Notwithstanding anything contained in section 93, a railway administration shall not be responsible for any loss, destruction, damage, deterioration or non-delivery in transit, of any consignment carried at owner's risk rate, from whatever cause arising, except upon proof, that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on its part or on the part of any of its servants:
Provided that--
(a) where the whole of such consignment or the whole of any package forming part of such consignment is not delivered to the consignee or the endorsee and such non-delivery is not proved by the railway administration to have been due to fire or to any accident to the train; or
(b) where in respect of any such consignment or of any package forming part of such consignment which had been so covered or protected that the covering or protection was not readily removable by hand, it is pointed out to the railway administration on or before delivery that any part of that consignment or package had been pilfered in transit, the railway administration shall be bound to disclose to the consignor, the consignee or the endorsee how the consignment or the package was dealt with throughout the time it was in its possession or control, but if negligence or misconduct on the part of the railway administration or of any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor, the consignee or the endorsee."
Relevant provisions of Indian Railway Commercial Manual Volume II are as under:-
1529. Loading and unloading of goods in assisted or private sidings.--(a) Where a Goods Clerk is posted in an assisted private siding, and his wages and other costs are paid for by the owner thereof, the loading of goods will be supervised and tallied by the Goods Clerk, and railway receipts will be granted for the specific number of packages loaded. Similarly, unloading of inward goods will be supervised and tallied by him (see Para 2513 also).
(b) Where no Goods Clerk is posted, consignments loaded in an assisted private siding will be booked at the serving station in the same way as any other consignment. However, since loading is not supervised by the railway staff, and also in view of the difficulty of making an accurate check of an already loaded wagon, only a "said to contain" receipt should be granted in such cases, the receipt being endorsed 'Loading not supervised by railway staff nor contents checked.
1582. Transshipment of P. O. L. traffic--(a) Where due to leakage, accident or any other cause it becomes necessary to transship the contents of a tank wagon, loaded with petroleum or other inflammable liquids, a fresh tank wagon of suitable capacity should be arranged for transshipment. The fresh lank must be of the same type as the original tank to obviate possibilities of damage. to the consignment due to contamination.
(b) As the transshipment of such traffic in tail wagons is required to be done by the consignors [consignees, the senders should be telegraphed to immediately arrange for the attendance of their representative at the time of transshipment. The responsibility to take all precautions during the. transshipment rests with the representatives of oil companies. The station staff should, however, give all necessary assistance to the representative of the senders to cordon off the area where transhipment is to be done.
(c) A certificate of the transshipment of such tank wagons is to be signed jointly by the representative of the oil companies and the Station Master in the form prescribed for the purpose by the railway administration which inter alia requires the dip, the specific gravity and the temperature of the contents both before and after the transhipment to be recorded on the form. The Station Master should per sonally verify the 'dip', etc. of the damaged tank wagon before transhipment starts and also of the fresh tank wagon before the transhipment is completed. One copy of the certificate, duly signed as above, should be retained as station record.
(d) Other instructions regarding issue of transhipment advice, etc. as laid down in Para 1581 also apply in case of transhipment of tank wagons containing petroleum or other inflammable liquids.
1919. Goods Clerks at Depots or other places, where specially provided will witness the loading of railway materials and stores. In such case, receipts for the number of articles actually loaded should be given to the despatching official. The responsibility for tallying and weighing such consignments and scaling and riveting the wagons, where necessary, rests with the station staff as for public traffic.
1920. At other places, however, where Goods Clerks are not provided, wagon containing railway materials and stores loaded by Departments in their own sidings, will be sealed and riveted independently by the depots concerned with wagon seals of their own. Station staff will grant 'said to contain receipts' at the forwarding stations. The receipts should, therefore, show "sealed and riveted by sender said to contain......................."
1921. Outward books for railway materials and stores.--Separate outward books (see Para 2008), both for local and through traffic, should be maintained for recording the invoices of railway materials and stores issued from the station. These books should be posted daily from record foil's of invoices, which should be entered in the order of their issue, i.e., in the order of their printed machine numbers.
2515. (a) Where no separate Goods Clerk is posted in a siding, the outward consignments loaded in the siding will be booked at the serving station in the same way as any other consignment. However, owing to the difficulty of making an accurate check of an already loaded wagon/vehicle, a 'said to contain' railway receipt will be granted in all cases in which such a check has not been exercised. In the case of inward traffic, the book delivery will be affected after collection of the railway receipt and freight and other charges due at the serving station before file wagons are placed in the siding on at the point of interchange, where prescribed. The Goods Clerk will neither supervise the loading of outward goods nor the unloading of inward goods.
(b) In no circumstances, should the wagons be placed in the siding or on the point of interchange, where prescribed, unless the book delivery has been effected and freight and other charges have been collected at the serving station. In the event of the siding user failing to affect book delivery after the arrival of inward wagons vehicles at the station within the time provided for in the agreement, the usual demurrage charges should be levied as prescribed from time to time.
Note.--The railway administration may permit placement of wagons without effecting the book delivery and collecting the freight and other charges due, in specific cases, where it is not possible for operational or other reasons to strictly enforce the instruction contained in (b) above. In such cases, it should be ensured that there is no delay in affecting the book delivery and collecting, the charges due immediately after the wagons are placed in the siding.
(c) Should space permit, the siding user may be allowed the option of unloading the goods at the station or in the goods shed serving the siding. In such cases, the wharfage charges should be levied at the goods are not taken delivery of and for removed within the free time allowed for this purpose.
(d) Inward wagons/vehicles which arrive at the serving station with defective seals, cut-panels, etc. must not be placed in the siding unless the contests are checked at the station/goods shed."
23. What borne out from the above quoted statutory provisions including Section 94 and Section 97 of the Act of 1989, which would be relevant for the present case, are as under:-
(i) The consignor shall be responsible for the correctness of the particulars furnished by him in the forwarding note. It is for the reason that the entries in receipt(s) indicates 'F/Note' (forwarding note). [Sub-section 2 of Section 64]
(ii) The burden of proving the weight or, as the case may be, number of packages stated therein, shall lie on the consignor, the consignee or the endorsee if the weight or number of packages is not checked by a railway servant authorized in this behalf and a statement to that effect is recorded in such railway receipt. It is in view of the fact that the receipt(s) containing remark that the 'loading not supervised by the railway staff' were issued by Railway. [Sub-Section 2 of Section 65]
(iii) The act or omission or negligence of the consignor or the consignee or the endorsee or the agent or servant of the consignor or the consignee or the endorsee and natural deterioration or wastage in bulk or weight due to inherent defect, quality or vice of the goods are required to be considered. [Sub-Section (f) and (g) of Section 93]
(iv) Proviso to Section 93 indicates that if the loss, destruction, damage, deterioration or non-delivery is proved to have arisen from any one or more of the causes indicated under Section 93, the Railway Administration shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery and thereafter the liability would be on Railway Administration to prove that it has used reasonable foresight and care in the carriage of the goods. Thus, first claimant has to prove its claim and thereafter onus would be shifted on Railway Administration.
(v) As per Section 94(2) where consignment is required to be delivered by a Railway Administration at a siding not belonging to Railway Administration, the Railway-Administration shall not be responsible for any loss, destruction, damage or deterioration or non-delivery of such consignment from whatsoever cause arising after the wagon containing the consignment has been placed at the specified point of interchange of wagon between the railway and the siding has been informed in writing by the Railway servant authorized in this behalf. It would not be out of place to refer Section 94(1) relates to goods loaded at a siding not belonging to Railway-Administration.
(vi) Section 97 starts from non-obstante clause. It says that notwithstanding anything contained in Section 93, a railway administration shall not be responsible for any loss, destruction, damage, deterioration or nondelivery in transit, of any consignment carried at owners risk rate, from whatever cause arising, except upon proof, that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on its part or on the part of any of its servants. Proviso (b) to this Section also indicates that if negligence or misconduct on the part of the railway administration or of any of its servants cannot be fairly inferred from such disclosure, the burden of proving such negligence or misconduct shall lie on the consignor, the consignee or the endorsee. In this view of the matter, the burden to prove the loss, destruction, damage, deterioration or non-delivery on account of negligence or mis-conduct of Railway staff is upon the claimant.
(vii) Para 1529 of Indian Railway Commercial Manual Volume II particularly Sub Para (b) indicates that if loading is not supervised by the railway staff then in that eventuality the receipt containing remark 'said to contain' should be issued with further endorsement that 'loading not supervised by Railway Staff nor contents checked'.
(viii) Para 1920 also indicates that where Goods Clerks are not provided the station staff will grant 'said to contain receipts' at the forwarding stations.
(ix) Sub-Para (a) of Para 2515 also indicates in the same tune. As per this para, where no separate Goods Clerk is posted in a siding, it is very difficult to make an accurate check of an already loaded wagon/vehicle, a 'said to contain' railway receipt will be granted in all cases. The Goods Clerk will neither supervise the loading nor unloading of any goods.
24. Now coming to the judgment(s) on which reliance has been placed by the learned counsel for the parties.
25. In the judgment dated 12.01.2018 passed in FAO No.249 of 2019 (Union of India vs. M/s Steel Authority of India Limited), the Delhi High Court dismissed the appeal challenging the order of the Railway Claims Tribunal. This judgment was passed by the Delhi High Court after taking note of the facts which are to the effect that the 8 Packets of Hot Rolled Sheets (HR Sheets) were booked under the Railway Receipt dated 18.11.2008 and the same were checked by RPF staff on 19.11.2008 and again on 24.11.2008 and RPF staff recorded that wagon contained 8 Bundles of HR Sheets and thereafter on 28.11.2008 at the destination only 5 packets of HR Sheets were found and also that wagon handed over to Railway on 19.11.2008 remained in the custody of Railway and was not taken back to the plant.
26. From the judgment of Delhi High Court it is apparent that the claimant before the Tribunal namely M/s Steel Authority of India Ltd. proved its case that 8 bundles of HR Sheets were handed over to the Railway and therefore the Tribunal passed the order in favour of claimant and the same was affirmed by the Delhi High Court.
27. In the judgment dated 14.02.2013 passed in FAFOD No.182 of 2003 (Union of India vs. M/s Indian Oil Corporation), this Court while dismissing the appeal of Railway and affirming the order of Tribunal, which was favourable to Indian Oil Corporation, observed that "the dip measurement was taken jointly by the staff of the respondents and Railways and thereafter, the Railway's receipt was issued mentioning the quantity of goods to be transported. The transit risk was of the Railways" and thereafter observed that "Section 94 would not apply in the instant case. Thus, in this case also the claimant proved its case regarding quantity which was loaded and was handed over to the Railways for transportation to the destination mentioned in the Railway receipt.
28. In the judgment passed in the case of Union of India vs. Aluminium Industries Limited, MANU/OR/0040/1987; the High Court of Orissa, after considering the fact that claimant examined only one witness namely Claims Assistant dealing with the Railway consignments and claims of the claimant's company and this witness in the statement stated that "he has no idea about the actual loading of the wagon at the consignor's siding at Renukoot" as also that he admitted that the place of loading was at a siding not belonging to Railway Administration but to the consignor, allowed the appeal and interfered in the order of Tribunal, which was favourable to the claimant company. Relevant paras of the same are as under:-
"6. The onus is on the plaintiff-company to establish as to what quantities had actually been booked at the forwarding station. The consignment had been booked at the consignor's own siding and there is absence of evidence from the side of the plaintiff and there has been no admission from the side of the defendant that loading had been done with the supervision of the railway staff.
7. The case reported in MANU/NA/0101/1949 : AIR 1950 Nag 85, Dominion of India v. Firm Museram Kishunprasad Melonigunj, Jubbalpore dealt with Rules 15 and 22, Railway Goods Tariff General Rules. It was held :
"Further there is no proof in this case that 255 bags were in fact loaded. According to Rule 22 of the Goods Tariff General Rules then in force cocoanuts were required to be loaded and unloaded by senders and consignees when in wagon loads. It is nowhere stated or proved by the plaintiff that the bags were loaded by railway servants or that they had opportunity to verify the number. The wagon was placed at the service of the consignor and the number stated was accepted as correct for the purpose of charging freight. It was thus that the receipt issued qualified the number by stating that the wagon was 'said to contain' 255 bags. This was perfectly fair and in order, and the number was mentioned merely to calculate the freight.
Under Rule 15 ibid it is clearly stated that by mentioning weight, etc., in the railway receipt the railway does not admit the correctness of the statement. This rule applies with even more rigour where the railway receipt in addition contains the 'said to contain' remark."
In AIR 1956 Mad 176, Union of India v. S. L. L. Lekhu Reddiar, it has been laid down that where goods were loaded in the wagon by the sender and not by the railway servants and the information given by the sender is accepted as correct for the purpose of charging freight and receipt is granted and at the destination station, shortage is detected, it is for the plaintiff to establish as to what actually were the goods delivered to the railway for carrying at the forwarding station.
As held in MANU/OR/0059/1961, South Eastern Railway v. Epari Satyanarayana, the railway receipt conveys no admission by the Railway Administration that the weight of the consignment as shown in the receipt or the description of goods as furnished by the consignor is correct. In the absence of evidence of actual booking of the goods as shown in the railway receipt, the railway is not liable for short delivery where goods are received in sound and intact condition. It is for the consignors or the consignees to adduce evidence as to the actual booking of the goods, as these facts are within their special knowledge.
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 MANU/OR/0012/1963, Union of India v. Prakash Ch. Sahu.
In MANU/BH/0081/1973, Union of India v. Chotelal Shewnath Rai, it has been held that where there is no evidence to prove the actual weight of the goods loaded in the wagon-and the loading had been done at the despatching station by the consignor, the Railway Administration is not liable for short delivery detected at the destination. From 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,
9. Approving the decisions reported in MANU/NA/0101/1949 : AIR 1950 Nag 85 (supra) and AIR 1956 Mad 176 (supra), the Supreme Court has laid down in MANU/SC/0099/1969 : AIR 1970 SC 843, Hari Sao v. State of Bihar, which also deals with the expression "S.W.A.", as follows :
"..........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."
In MANU/OR/0046/1984, Orient Paper Mills Ltd. v. Union of India, a Division Bench of this Court, with one of us (B.K. Behera, J.) has held that in a suit for damages for loss of goods against the Railway Administration, the onus lies on the plaintiff to establish the actual loading of the goods for the loss of which the claims have been made. That was also a case where the consignment had been loaded and despatched from the siding of the consignor.
10. In MANU/OR/0138/1984, Union of India v. Krishna Stores, on which reliance has been placed for the respondent, the Hon'ble Judges have dealt with the scope of Sections 73 and 74 of the Act. In that case, 660 tins of groundnut oil were despatched from ex-Havagudh by Saurastra Oil Mill to be delivered at the Kantabanji Railway Station in a wagon as per the railway receipt for being carried by the defendant railway as a carrier at the railway risk rate and the groundnut oil tins had been delivered to the defendant railway at the point of despatch in properly packed condition. It was not a case where the loading had been done at the consignor's siding without any supervision by the Railway Administration. On the facts of the reported case and in view of the provisions made in Sections 73 and 74 of the Act, the judgment and decree passed against the Railway Administration had been upheld by this Court.
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."
29. In the judgment passed in the case of Union of India vs. Steel Authority of India Ltd.; MANU/AP/1039/2004, the Andhra Pradesh High Court, after taking note of remark on the Railway receipt i.e. S/C ('said to contain') as also the fact that 'loading was not supervised by Railway staff', allowed the appeal and order of Tribunal favourable to the claimant was set aside. The relevant paragraphs of the same extracted here in under:-
"5. The Surveyor was examined as Applicant Witness No. 1. He stated that he saw the wagon containing the consignment for the first time on 01.11.1990 i.e., just before the re-weighment and he had not seen the consignment earlier, nor did he see in what condition the consignment arrived and was placed at SAIL siding. The gist of the condition of the consignment made him believe that pilferage had taken place somewhere.
6. The Junior Executive (Marketing) of SAIL was examined as A.W.2. He also stated that he had no knowledge about the circumstances and conditions of the loading of the subject consignment at the booking end at Bokaro. He saw the consignment for the first time on arrival of the consignment at SAIL siding on 25.10.1990. He noticed depressions in the level of loading of the material inside the wagon. At one point, prior to removal of large quantity of material, the wagon floor was visible. This made him to conclude that the material has been tampered and some pilferage had taken place before the wagon was placed at their siding.
7. Admittedly, the loading and delivery places are the private sidings of the SAIL. That apart, as per Section 94 of the Railways Act, 1989, (for short 'the Act') the applicant is not entitled for any compensation for whatever cause. Section 94 of the Act reads as follows Section 94: Goods to be loaded or delivered at a siding not belonging to a railway administration.--
(1) Where goods are required to be loaded at a siding not belonging to a railway administration for carriage by railway, the railway administration shall not be responsible for any loss, destruction, damage or deterioration of such goods from whatever cause arising until the wagon containing the goods has been placed at the specified point of interchange of wagons between the siding and the railway administration and a railway servant authorized in this behalf has been informed in writing accordingly by the owner of the siding.
(2) Where any consignment is required to be delivered by a railway administration at a siding not belonging to a railway administration, the railway administration shall not be responsible for any loss, destruction, damage or deterioration or non-delivery of such consignment from whatever cause arising after the wagon containing the consignment has placed at the specified point of interchange of wagon between the railway and the siding and the owner of the siding has been informed in writing accordingly by a railway servant authorized in this behalf.
8. The learned counsel appearing for the SAIL submits that under Section 78 of the Act, before delivery of the consignment the railway administration has right to re-weigh the consignment. Under Section 79 of the Act, the railway administration may, on the request made by the consignee or endorsee, allow weighment of the consignment subject to such conditions and on payment of such charges as may be prescribed and the demurrage charges if any.
9. But, in the instant case, the railway administration has refused for re- weighment of the consignment.
10. The learned counsel for the Railways submits that if the goods are booked at the owners risk, there is no obligation on the part of the railways to undertake any re-weighment. Under Section 78 of the Act, the Railways are empowered to re-weigh and re-classify the consignment for the purpose of calculating the freight and other charges and to rectify the mistakes.
11. Section 79 of the Act has no application in respect of the goods required to be loaded at a siding not belonging to the railway administration and also in respect of consignment required to be delivered by the railway authorities at a siding not belonging to the railway administration. Therefore, I am of the view that under Section 94 of the Railways Act, the SAIL is not entitled for any compensation for the alleged short delivery. However, Ex.R-1 discloses that the Railway authorities cancelled the railway receipt on delivery of the concerned goods. The consignment was received without any protest, and thereafter, they have made an attempt to throw the burden on the railways making them responsible for the short delivery of the said consignment.
12. In view of the aforesaid specific provision contained in Section 94 (1) and (2) of the Act, I am of the opinion that the SAIL is not entitled for any compensation for the damages or for the short delivery of the consigned material or for whatever reasons. Thus, the impugned order of the railway tribunal is illegal and contrary to the specific provisions contained in Section 94 of the Act."
30. The High Court of Orissa in the judgment passed in the case of Union of India vs. Jugal Kishore Khandelwal; MANU/OR/0026/1988, after considering the facts which are to the effect that the goods were not loaded under the supervision of Railway staff and the consignment was booked under 'L/U condition', which indicates that loading at dispatching station and unloading at destination station were the responsibility of consignor, as also that goods were loaded in the Wagon by the consignor himself and sealed by him and thereafter was delivered to Railway only for carriage and the endorsement on the Railway receipt, as per which the loading was not supervised by Railway and further that claimant never examined any witness to prove that actually what amount of Kerosene oil was loaded, in fact 24,500 litres kerosene oil were loaded in the wagon and that such quantity was delivered to the Railway for carriage, and also taking note of Section 73 and earlier judgment passed in the case of Union of India vs. Aluminium Industries Ltd.; AIR 1987 Ori 149, allowed the appeal filed by the Railway and interfered in the order of Tribunal, which was favourable to the claimant-Jugal Kishore Khandelwal. The relevant paragraphs reads as under:-
"3. The suit was contested by the appellant contending that the goods were not loaded at Budge-Budge under the supervision of the Railway staff. The consignment was booked under L/U condition which meant that loading at the despatch station and unloading at the destination station were the responsibility of the consignor. The goods were loaded in the wagon by the consignor himself, sealed by him and was delivered to the railways only for carriage. The railway receipt granted to the respondent itself contained the endorsement about the amount of kerosine oil loaded as only 'said to contain' and there was no acceptance on the part of the railways at any time that actually 24,500 litres of kerosine oil had been loaded in the tanker and thus no liability on the part of the appellant could be found.
4. The learned Subordinate Judge, Balasore came to the conclusion that the appellant was responsible for the loss caused to the respondent since in the shortage certificate issued at the time of delivery, loss of 11,500 litres of kerosine oil had been admitted and that further the seal on the tanker had been found to be broken at the delivery site.
5. The plaintiff-respondent, to prove his case, had examined one witness, P.W. 1 who admitted in the cross-examination that the loading as per the contract was to be made by the consignor and unloading was to be done by the consignee. Since it was a self consignment both the functions were to be discharged by the respondent. The appellant also examined 2 witness of whom D.W. 1 is the Commercial Clerk at the Budge-Budge Railway Station. D .W. 1 stated that the wagon was loaded at the siding of the Oil Corporation and not in the Railway Station and that the loading had not been supervised by the Railway staff. He also duly proved Exts. A and B i.e. the Railway receipt and the forwarding note. On the Railway receipt the endorsement regarding number and description of the wagon was entered as "One F wagon said to contain 24,500 of ..." and Ext. B/1 contained the endorsement "Loading not supervised". Such evidence led on behalf of the appellant remained unchallenged and hence it goes without saying that the wagon had been loaded only at the Corporation siding and not in the Railway Station and that further the loading was also not done under the supervision of the Railways but by the consignor himself. The Railway receipt also never acknowledged the receipt of the wagon with 24,500 litres of kerosine oil but only stated that the amount was "said to contain" in the wagon. The respondent never examined any witness to prove that actually what amount of kerosine oil was loaded at Budge-Budge to establish that in fact 24,500 litres of kerosine oil was loaded in the wagon and that such quantity was delivered to the appellant for carriage.
6. Section 73 of the Indian Railways Act attaches responsibility on the Railway Administration for loss, destruction, damage, deterioration or non-delivery in transit of animals and goods delivered to it for being carried. What is important to note is that the goods in respect of which loss is alleged and damage is claimed must first have been delivered to the Railway administration and unless such delivery is proved, there can be no question of any claim for damages. In this case however there is absolutely no proof of 24,500 litres of kerosine oil to have been delivered to the Railway Administration. A shortage certificate issued by the Railway Administration at the delivery station is not an admission of actual shortage but is merely a statement of a fact of what quantity has been taken delivery of at the destination station. It does not constitute an admission of the actual quantity received by the Railways for carriage. The law on the question was pointedly discussed by this Court in MANU/OR/0040/1987 Union of India v. Aluminium Industries Ltd. and following the principles decided in that case, it must be held that the respondent has not been able to establish any loss caused to him and hence the claim of damages must be negatived."
31. In the judgment passed in FAO No. 225 of 2013 (Steel Authority of India Limited vs. Union of India), MANU/DE/6299/2017, the Delhi High Court after considering the remark on the Railway receipt i.e. SWA ('senders' weight accepted') as also Section 65 and 94 of the Act of 1989 dismissed the appeal. The relevant paragraphs of the same are extracted herein under:-
"3. The respondent pleaded that it is not liable because the railway receipt in question was issued on the basis of 'Senders Weight Accepted' (SWA) i.e the railway receipt was not an unconditional receipt but was only the conditional receipt that what is the weight of the consignment has not been checked by the respondent/railways but the weight as given by the consignor/appellant has been accepted. Respondent relies upon Sections 65 and 94 of the Railways Act for dismissing of the claim petition.
4. It is not disputed in the facts of the present case that railway receipt shows that the same was as per SWA basis. Once the railway receipt is as per SWA basis, then, the respondent is protected by Section 94 of the Railways Act and which provides that there is no liability of the respondent/railways unless at the point of interchange to the railway wagon from the private siding a railway servant duly authorized is present, i.e the railway servant is present at the time of loading of the consignment, and therefore the railways is responsible for the weight of the consignment. Once the railway receipt is on SWA basis, then, there would be no liability in law of the respondent in terms of Section 94 of the Railways Act. Even Section 65 of the Railways Act only states that the railway receipt is only a prima facie proof of its contents and which expression of prima facie so found because of the procedure in the respondent/railways for taking SWA consignments and which is done because railways does not have provision for weighing of those consignments which are extremely heavy/bulky or those consignments because of their nature or for some other reason cannot weighed at the point of handing over of the consignment by the consignor to the railways. Sections 65 and 94 of the Railways Act are reproduced as under:-
"Section 65. Railway receipt.-(1) A railway administration shall,--
(a) in a case where the goods are to be loaded by a person entrusting such goods, on the completion of such loading; or
(b) in any other case, on the acceptance of the goods by it, issue a railway receipt in such form as may be specified by the Central Government.
(2) A railway receipt shall be prima facie evidence of the weight and the number of packages stated therein: Provided that in the case of a consignment in wagon-load or train-load and the weight or the number of packages is not checked by a railway servant authorised in this behalf, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight or, as the case may be, the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee. Section 94. Goods to be loaded or delivered at a siding not belonging to a railway administration.-(1) Where goods are required to be loaded at a siding not belonging to a railway administration for carriage by railway, the railway administration shall not be responsible for any loss, destruction, damage or deterioration of such goods from whatever cause arising, until the wagon containing the goods has been placed at the specified point of interchange of wagons between the siding and the railway administration and a railway servant authorised in this behalf has been informed in writing accordingly by the owner of the siding.
(2) Where any consignment is required to be delivered by a railway administration at a siding not belonging to a railway administration, the railway administration shall not be responsible for any loss, destruction, damage or deterioration or non-delivery of such consignment from whatever cause arising after the wagon containing the consignment has been placed at the specified point of interchange of wagons between the railway and the siding and the owner of the siding has been informed in writing accordingly by a railway servant authorised in this behalf.""
32. In the judgment passed in First Appeal No. 309 of 1999 (M/s Hindustan Petroleum Corporation Ltd. vs. Union of India); MANU/MH/0223/2004, the Nagpur Bench of Bombay High Court took note of the remark(s) on the Railway receipt i.e. S/C ('said to contain') and 'loading not supervised by the Railway staff' as also the judgment passed in the case of Union of India vs. Jugal Kishore Khandelwal and Union of India vs. Roop Narayan; AIR 1997 Raj. 123, dismissed the appeal. The relevant paragraphs of the same extracted herein under:-
"5. The case of Union of India v. Jugal Kishore Khandelwal, supra, has been based on the fact that the goods were delivered under certain conditions written on the railway receipt. First condition was denoted by the remark "said to contain" certain quantity of material. The remark "said to contain" has been interpreted by the learned Single Judge of Orissa High Court as not constituting any acceptance on the part of the railway administration that the quantity shown in the railway receipt was actually received for transportation to the destination point. The second condition was indicated by another remark to the effect that "loading not supervised" by the railway staff and this remark together with the former remark has been interpreted by the learned Single Judge of Orissa High Court to be constituting no admission on the part of railway administration of acceptance of that much quantity of goods, as has been shown in the railway receipt, for transportation to the destination point.
6. In the instant case also, the facts are similar. If we look at the railway receipt vide Ex. R/1, it can be seen that this receipt contains both the said remarks. The remark "said to contain" appears in abbreviated form as "S/C". So far as the latter remark is concerned, it appears in terms "loading not supervised by the staff". Learned counsel for the appellant submits that the abbreviation "S/C" cannot be understood by a person who has not worked any time with the railways and the appellant being not conversant with the practice of railway administration, was not expected to know the meaning and implication of the remark "S/C", and, therefore, the respondent cannot be allowed to take advantage of this remark. I am not inclined to accept this argument for the reason that when any additional remarks are made on a railway receipt, and if those remarks are illegible or could not be understood by the consignor, the consignor must seek clarification from the concerned staff of the railway, and if he does not do so, he must suffer for the inaction shown by him. Once the railway receipt is accepted by the consignor without any protest, the consignor cannot be allowed to take the defence that he did not understand the contents of the railway receipt and in this case the appellant accepted railway receipt with both the said remarks without any protest. Both the said remarks, "said to contain" and "loading not supervised by the staff" clearly indicated that the railway administration did not accept as correct the quantity of motor spirit shown to have been loaded in the tank wagon at Bajwa and appearing in the railway receipt. The appellant could have at that time insisted upon the railway staff to check the quantity of motor spirit loaded in the wagon at the time of handing over of the wagon to railways for its transportation to the destination point. If the railway staff had refused to budge, the railway receipt could have been accepted only under protest by the appellant. This has not been done by the appellant, rather the appellant appears to have accepted the remark that loading was said to contain certain quantity and was done without any supervision by the staff and, in turn, also accepted the risk that was inherently involved in handing over of the tank wagon to the railway staff for being its transported to the destination point at Khapri. These facts are similar to the facts of the aforesaid case of Union of India v. Jugal Kishore Khandelwal. Therefore, the view expressed therein by the learned Single Judge of Orissa High Court that these remarks indicated that there was no acceptance on the part of the railways of the quantity of goods delivered to it for carriage, commends itself to me and can be applied here also. Learned Member of the Tribunal, therefore, has committed no error in recording a finding that appellant failed to prove that the motor spirit delivered to it by railway administration at Khapri was in quantity shorter than what was handed over by the appellant to railways at Bajwa.
7. The learned Member has pressed into service the proviso to Section 65 of the Indian Railways Act, 1989 for rejecting the claim of appellant and rightly so. It lays down that in case consignment in wagon-load is not checked by an authorised railway servant, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight stated therein, shall lie on the consignor, the consignee or the endorsee. In this case, such statement as required by the said proviso has already been found by me to be made in the railway receipt. Therefore, burden to prove the weight stated in the railway receipt lay upon the consignor, i.e. the appellant in this case and not the respondent. The appellant, however, did not discharge it by adducing necessary evidence and, therefore, there was no way the claim application could have been granted by the Tribunal.
8. So far as the decision given by the learned Judicial Member on 6.11.1998 in the case 118/OAI/RCT/NGP/94 is concerned, which has been relied upon by the appellant, one can very well see, upon perusal of the entire judgment, that in that case there was only one remark which was to the effect "said to contain" and that the case did not have any other remark "loading not supervised by the staff", which is borne on the railway receipt involved in this case. Therefore, one can say that the facts of that case are not similar to the facts of this case, and as such, no question of acquiescence in this decision by the respondent would arise. Further, it appears that said judgment does not properly take into account the impact of proviso to Section 65 of the Railways Act, 1989, which shifts the burden of proving weight of the consignment upon the consignor, in case it is not checked by railway staff authorised in that behalf and statement to that effect is made on the railway receipt on the over all claim of the appellant in that case. Such a judgment, therefore, should not prevent the respondent from repudiating claim, in accordance with law. I, therefore, find no substance in the argument of learned counsel for the appellant made in this regard.
9. Learned counsel for respondent has also placed reliance upon the decision in Union of India v. Roop Narayan reported in MANU/RH/0026/1997 : AIR 1997 Raj. 123 to support his argument that since there was no acceptance on the part of the railway administration of the quantity of goods loaded at loading point, the railway administration was not liable for damages on account of any shortage in delivery at destination point. In the said case, there were various remarks incorporated in the railway receipt, the relevant of which were "said to contain" and "SWA" indicating sender's weight was accepted for the purpose of calculation of freight at the forwarding station. Interpreting these remarks, the learned Judge of Rajasthan High Court held that there was no admission on the part of the railways that the articles in number, as mentioned in the railway receipt, had in fact been loaded. This judgment, in my view, certainly supports the case of the respondent herein."
33. The relevant paras of the judgment passed in the case of Kanhaiya Bhalotia vs. Union of India; 2013 SCC OnLine Pat 506 by the High Court of Patna are as under:-
"The Supreme Court in the case of Hari Sao v. The State of Bihar : AIR 1970 SC 843 has considered the issue of carriage of goods at 'owner's risk rate' and the various remarks mentioned in the railway receipt applicable to such cases and it has been observed at page 845 (AIR) as follows:
"7... ...... ...... ..... ..... ...... ...... ...... ....... ....... ...... Under section 74 where goods are tendered to a railway administration for carriage at special reduced rate known as 'the owner's risk rate' then, notwithstanding anything contained in section 73, the railway administration is not to be responsible for any loss, destruction, damage etc., from whatever cause arising, except upon proof that such loss, damage, destruction etc. was due to negligence or misconduct on the part of the railway administration or any of its servants... ..... ..... ..... ...... ........ ....... ....... ......."
"8. It is, therefore, clear that the railway administration may be liable for loss, destruction or non-delivery of the goods under section 73 if it fails to use reasonable foresight and care in the carriage of the same and would also be similarly liable even in respect of goods carried at special reduced rate if there was negligence and misconduct on its part or any of its servants... ..... ..... ........ ...... ....... ....... ........ ....... .......
There would be no presumption that the goods put in the wagons 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 railways. The endorsement of 'S.W.A.' would negative the plea, if any, that the weight was accepted by the railway. The endorsement "L/U" emphasized 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."
In paragraph 10 of the judgment the Supreme Court has taken note of the judgment passed in the case of Dominion of India v. Firm Museram Kishunprasad : AIR 1950 Nagpur 85 and observed as follows:
"10. ... ...... ...... ........... ....... ........ ........ ... ...... ..... ....... 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 Goods Tariff General Rules it was said that the receipt issued "qualified the number by 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 mentioning of the weight in railway receipt did not amount to admission of 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' remarks."
A Division Bench of this Court in the case of Union of India v. Chotelal Shewnath Rai : AIR 1973 Patna 244 while considering the import of a railway receipt, forwarding note and the Bijak has held in paragraph 8 as follows:
"8. ... ........... ........ ....... ....... ....... ...... ....... ......... ...........
I have already adverted to above that the entry about the weight of the consignment mentioned in the railway receipt and the forwarding note are no admission of the railway department about the weight carried in that consignment because in the case before us the railway has not weighed the consignment at the despatching station and the loading was done by the sender ... ...... ....... ........ ....... ....... ....... .......
So far as the Bijak (Ext.2) is concerned, this is a statement made by the consigner that 565 maunds and odd ground-nut oil was despatched from Kharsalia to Tata Nagar, The person who wrote this Bijak (Ext.2) has not been examined in this case nor is it known that the said person was actually present at the time when the ground-nut oil in question was loaded in the tank wagon. As such this document (Ext.2) too cannot be said to be a legal evidence... ...... ....... ..... ...... ...... ........ ....... ...... ...""
34. From the above quoted provisions as also the judgments referred and the remark(s) on the Railway receipt(s) i.e. 'S/C' (said to contain), 'SWA' (Sender's Weight Accepted) and 'loading not supervised by Railway Staff'; it is apparent that Railway Administration would not be responsible for any loss, destruction, damage, deterioration or non-delivery in transit, of any consignment from whatever cause arising, except upon proof, that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on its part or on the part of any of its servants.
35. From the statutory provisions governing the goods/consignment carried by the railways and the various judgments passed after considering the relevant statutory provisions as also the remark(s) on the Railway receipt, it is crystal clear that for seeking compensation the consignor, consignee or the endorsee is under obligation to prove negligence or misconduct by the railway administration or its servants and even if any such negligence is proved, yet the concerned is also required to prove the loss, destruction, damage, deterioration or short delivery or the likes by adducing appropriate oral and documentary evidence.
36. The aforesaid conclusion is in consonance with the principle that plaintiff can succeed only on the strength of his own case and not on the weakness of defense. In other words, plaintiff has to stand on his own legs, not on the legs of others. As per Sections 101 and 102 of Indian Evidence Act, 1872, the initial onus is always on the plaintiff/claimant and if he discharges the onus and makes out a case which entitles him relief, the onus shifts to the defendant/opponent to prove those circumstances, if any, which dis-entitles the plaintiff/claimant to the same. Latin maxim 'Onus Probandi' conveys the Rule that one who asserts a positive fact has to prove it.
37. Admittedly, in the case(s) of BPCL, indicated above, the petroleum product was loaded by BPCL at its siding and thereafter in all the case(s) the Railway issued the receipt(s) bearing remark(s) 'S/C' (said to contain), 'SWA' (Sender's Weight Accepted) as also 'loading was not supervised by Railway Staff' and 'Joint Dip Certificate(s)' also indicates the Railway as per Section 94 of the Act of 1989 is not responsible for any loss and as such, it was the duty of the BPCL to prove by adducing appropriate evidence that (i) the petroleum product/consignment was properly loaded; (ii) quantity was appropriate as indicated in the receipt(s) and (iii) was got damaged on account of some misconduct or negligence on the part of the Railway or its servants.
38. To prove the fact that the petroleum product at a siding of BPCL was loaded properly and the same was as indicated in the receipt(s), the consignor namely BPCL was under obligation to adduce the evidence of at least one appropriate person (the person who supervised the loading at a siding of BPCL or the person who was authorized for loading and was present at a siding of BPCL) as also the relevant documentary evidence viz. Register, book etc. prepared with regard to loading by BPCL at its siding.
39. In absence of appropriate evidence, as indicated above, of consignor, the 'Joint Dip Certificate' or Calibration Certificate (on record of F.A.F.O. No.49 of 2018), to the view of this Court, was not sufficient to allow the claim of the BPCL. Thus, the BPCL, in all the case(s), failed to establish its claim as also the negligence of Railway Administration.
40. In the case(s), indicated above, it is apparent from record(s) that the BPCL failed to adduce the evidence, as required, before the Tribunal.
41. It would be apt to refer here that the affidavit of evidence in all the case, except in one case, as indicated hereinabove, was filed by one Sri Baldev, Senior Assistant Claims, Office of General Manager, BPCL, Noida, U.P. and this person has not stated in the affidavit(s) that he was present at the time of loading, obviously he can not. Moreover, in these affidavit(s) it has not been specifically stated with supporting document(s) prepared, as per norms, at the time of loading at a siding of BPCL that (i) petroleum product, in issue, was properly loaded; (ii) the sealing, tightening of valves etc. was done as per norms and further the affidavit(s) are also silent on the aspects indicated under Sub-section (f) and (g) of Section 93. Thus, to the view of this Court, the evidence adduced by the BPCL in all the case(s) was not appropriate/sufficient so as to allow the claim(s) of BPCL.
42. In view of the circumstances set forth above there cannot be any other conclusion but to dismiss these appeals.
43. In the result, these appeals are dismissed but without any order as to costs.
44. Let the lower court records be returned to the tribunal concerned forthwith.
Order Date :-19.09.2023 Vinay/-