Allahabad High Court
M/S Indo Gulf Corporation Ltd. vs Union Of India Through General Manager ... on 29 January, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 476 of 1999 Appellant :- M/S Indo Gulf Corporation Ltd. Respondent :- Union Of India Through General Manager N.R.New Delhi Counsel for Appellant :- S.P.Shukla,Rajesh Shukla Counsel for Respondent :- Jyotesna Pal,Pratul Kr.Srivastava,Ram Singh Hon'ble Jaspreet Singh,J.
Heard Sri Rajesh Shukla, learned counsel for the appellant as well as Sri Ram Singh, learned counsel appearing for the Railway Administration.
The instant appeal has been preferred under Section 23 of the Railway Claims Tribunal Act being aggrieved against the award dated 24.08.1999 passed in Case No. OC 9600180 whereby the claim petition of the appellant was rejected.
Briefly, the facts giving rise to the aforesaid appeal are, that the appellant had booked a railway consignment of 5,745 bags of DAP imported fertilizer under Railway receipt No. 702197 dated 27/28.05.1993 which was entrusted to the Railway Administration at Kandla Port to be carried and transported to Meerut City, Mandi siding. On account of negligence of the Railway Administration, the aforesaid consignment reached Meerut on 06.11.1993, though, it ought to have reached much earlier since similar consignment which was booked on the same day had reached the destination on 02.06.1993, 09.06.1993 and 11.06.1993 respectively. Thus, apparently, there was a delay of more than 5 months. The claimant had stated that on account of such huge delay, the consignment was spoiled in transit and since it related to a fertilizer which had chemical properties, the same had deteriorated and as such there was a 100% damage to the consignment and for seeking compensation, the Claim Petition No. OC 9600160 was filed before the Railway Claims Tribunal at Lucknow.
The Railway Administration took a defence that the rake which was selected by the claimant was open box rake. It was upon the request of the claimant the open box wagon were provided. The loading of the aforesaid consignment was supervised by the representatives of the claimant and two escorts also accompanied the fertilizer rake in the brake wagon. Thus, while the consignment was unloaded on 06.11.1993 with the help of the representative and staff of the claimant and their agent/endorsee namely M/s Soverign Traders, hence, it cannot be said that there was any negligence on the part of the Railways since two escorts of the claimant were present with the said consignment. Coupled with the fact that the choice of open box wagon was that of the claimant itself.
The other defence of the Railways was that they have invited the claimant for a joint inspection which was carried out on 17.11.1993, however, the assessment was refused by the claimant who insisted that there was 100% damage. On account of the aforesaid difference of opinion regarding the damage to the consignment, the consignment remained on the railway premises at its destination. The Railway Administration took the initiative and sought an opinion from the District Agricultural Officer who upon inspecting the said consignment vide its letter dated 25.06.1994 informed that there was deterioration in the product, however, it was not 100% damaged and it gave its own rate of 389.18 per bag of 50 Kg. The Railway Administration upon receiving the said letter offered the same rate to the claimant which they refused as they insisted that the consignment was damaged 100%. Being faced with such a situation, the Railway Administration put the aforesaid consignment to public auction which ultimately was sold to M/s Kushal Fertilizers Pvt. Ltd. for a total sum of Rs. 3, 02, 88/- at the rate of 5580 per tone. Since the consignment was not lifted from the railway premises, thus, they claimed wharfage for the period 19.11.1993 to 18.12.1995 to a tune of Rs. 12,22,452/-. Since the endorsed consignee namely M/s Soverign Traders did not pay the aforesaid, accordingly, after adjusting the amount received from the public auction as per the Railway Administration they have suffered a loss of Rs. 9,00,000/- and odd.
Upon the pleadings of the parties, the Tribunal framed four issues.
As far as the issue no. 1 was concerned which related to the title of the consignment, it was given up by the Railway Administration. So was the situation regarding issue no. 3 relating to the notice under Section 106 of the Railways Act. Thus, the two issues that were intricately connected and was the soul of the dispute was issue no. 2 regarding the damages and the relief which could be granted to the claimant. In support of the respective submissions, the claimant filed the affidavit of one Sri S.C. Tripathi whereas the Railway Administration filed the affidavit of Sri Arjun Ram. The Tribunal considering the evidence filed in shape of affidavit and after hearing the parties by means of the award dated 24.08.1999 dismissed the claim petition against which the instant appeal has been preferred.
Sri Rajesh Shukla, learned counsel for the appellant has urged that the claimant-appellant made several representations to the Railway Administration to indicate that the rate as obtained by the Railway Administration was not acceptable and they wanted a fresh independent assessment of the consignment to ascertain the correct rate of the damaged product. It has further been submitted that despite the aforesaid several requests, the respondent Administration did not accede and as such for the said reason without resolving the dispute, the Railway Administration on its own undertook the exercise of auctioning the aforesaid consignment for which the appellant was not invited. Since fertilizer is a commodity which has chemical properties unless and until it is as per the parameters which are fixed by the District Agriculture Officer, neither the appellant can sell nor stock the same and since with the passage of time, the consignment had deteriorated thus as such as far as the appellant is concerned, the consignment had lost its entire value and it was a complete scrap for which even the rate as suggested by the respondent-Administration was of no good to the appellant. Sri Shukla has also submitted that the Railway Administration had issued a letter dated 18.06.1994 wherein the claimant was informed that the sample has already been sent for analysis and upon receiving the report the assessment would be made. It has also been submitted that aforesaid aspect of the matter has not been considered and as such prima facie there was an evidence of negligence of the railways as a result of which the the claimant-appellant has suffered, consequently, the award dated 24.08.1999 deserves to be set aside.
Per contra, learned counsel for the Railway Administration has emphasized that though the consignment had reached late at the destination but all the efforts were made informing the claimant to come and participate in an assessment which was refused since the appellant insisted that they require 100% damage certificate from the Railway Administration. It has also been submitted that the Railway Administration had taken the opinion from the District Agricultural Officer who sent an expert to analyze the consignment and then gave its own rate of 389.18 per bag of 50 Kg. Since the aforesaid commodity could not have been sold in the open market without seeking permission of the District Agricultural Officer, which was granted and thereafter the consignment was sold by Public auction and the claimant failed to participate or to cooperate in its disposal.
It has been submitted that despite the aforesaid dispute, the fact remains that the respondent did not lift the consignment from the railway premises and as such as per the rules and regulations, the Railway Administration had to undertake the process of disposing of the said consignment and in the aforesaid process the consignment was sold to the highest auction purchaser and fetched a sum of Rs. 3, 02, 088/-. The aforesaid sum was adjusted from the wharfage charges which were payable by the endorsee of the claimant namely M/s Soverign Traders who failed to pay, accordingly, after adjusting the amount received in public action there was no surplus which could be given to the claimant rather the Railway Administration suffered a loss of Rs. 9 Lakhs and odd which was recoverable at the behest of the endorsee of the railway receipt. In the aforesaid circumstances, there was no question of grant of any compensation to the claimant and considering the aforesaid aspect of the matter in its totality, the Railway Claims Tribunal has rightly rejected the claim petition which requires no interference from this Court.
Upon considering the submissions of the learned counsel for the parties and on perusal of the record, the facts as narrated above, are not highly disputed. It is not in dispute that the consignment was booked at Kandla Port on 27/28.05.1993 and that it reached the destination on 06.11.1993. It is also not disputed between the parties that the other rakes booked on the same day were delivered on 02.06.1993 and 09.06.1993 and 11.06.1993. It is also not disputed that it was the claimant who had selected the open box wagon for transporting the said consignment. However, what is in dispute is the ascertainment of damages for the consignment.
On one hand, it is the contention of the appellant that the consignment suffered a 100% damage whereas the Railway Administration submits that there is not a 100% damage, however, in order to ascertain the extent of damage, the Railway Administration had called for an inspection and after receiving an assessment from the District Agricultural Officer, it was found that the rate for the aforesaid product would be 389.18 per bag of 50 Kg. The record indicates that the aforesaid report had been called for and the same was also informed to the claimant. Despite the fact that the claimant was faced with a report assessing the damage which was done by a Competent Authority which was completely unconnected with the Railway Administration, that is to say the report was prima facie unbiased. If at all the claimant did not agree with the aforesaid, it was open for the claimant to have adduced a fresh report or could have submitted another report indicating the extent of damage. However, the same has not been done. Though, it is alleged by Sri Shukla that several representations were given to the Railway Administration for getting an independent assessment done, however, there is nothing on record to suggest, the claimant made any effort except writing letters, to get a fresh assessment done by their volition.
The record also indicates that, throughout, the stand taken by the claimant was that the consignment had suffered 100% damage, however, there has been no effort made by the claimant to mitigate their losses. Even when the Railway Administration had initiated process for disposing of the consignment by public auction even then the claimant did not respond as a result the Railway Administration had no option but to sell the consignment as per the rules and regulations after seeking the permission of the District Agricultural Officer. It is also not disputed that because of the adamant attitude of the claimant as it refused to lift the consignment from the railway premises, through M/s Soverign Traders who are the endorsee of the railway receipt unloaded the consignment with the help of their own staff and labour on 06.11.1993 and the delivery was affected on 07.11.1993.
Once the aforesaid situation is not in dispute, it was the responsibility of the claimant to have received the goods. In case if he had any objection, the same could have been made the subject matter of the claim, however, at the same time, it ought to have produced cogent material to substantiate its own case. The record indicates that the claimant has failed to substantiate its plea and its claim is completely bereft of any lose details. Merely by writing repeated letters and protesting it will not partake the nature of evidence establishing the quantum of damages. It has also not been disputed nor any material has been brought on record to indicate that the report given by the District Agricultural Officer is not correct.
In view of the above, this Court is satisfied that the Tribunal after considering the material which was before it has recorded a finding of fact that the claimant has failed to substantiate its own claim and the fact that it has also not made any effort to mitigate its losses. Consequently, this Court is of the opinion that no error can be found in the award dated 24.08.1999.
In view of the above, the appeal is devoid of merit, the same is dismissed. The award passed by the Railway Claims Tribunal, Lucknow dated 24.08.1999 is affirmed. There shall be no order as to costs.
The record shall be remitted to the Tribunal concerned within a period of 10 days from today.
Order Date :- 29.1.2020 Asheesh