Gauhati High Court
MFA/55/2012 on 23 August, 2022
Author: Malasri Nandi
Bench: Malasri Nandi
Page No.# 1/9
GAHC010006342012
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MFA No. 55/2012
The Union of India, represented by
The General Manager, N.F. Railway,
Maligaon, Guwahati - 11 (Assam)
.....................Appellant.
-Vs-
M/s Fuel Sources (India) Pvt. Limited,
R K Plaza Market, 1st Floor, Chatribari Road,
A T Road, Guwahati - 1 (Assam)
...............Respondent.
Advocates for the appellant: Ms U Chakraborty, SC, NF Rly..
Advocate for the respondent: Ms M Sharma
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BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of hearing : 04.08.2022.
Date of judgment : 23.08.2022
JUDGEMENT AND ORDER (CAV)
Heard Ms. U Chakraborty, learned Standing Counsel, N F Railway, appearing for the appellant and Ms. M Sharma, learned counsel appearing on behalf of the respondent.
2. This appeal has been filed under Section 23 of the Railway Claims Tribunal Act, 1987, (hereinafter stated to be 'RCT') against the Judgment and Award dated 20.09.2011, passed by the Railway Claims Tribunal, Guwahati Bench, Guwahati, in Claim Application No. OA III/GHY/2009/0007 (Old number) OAIII07/2009), awarding compensation of Rs. 6,22,560 (Rupees Six Lacs Twenty-Two Thousand Five Hundred and Sixty Only ) with interest @ 6% per annum from the date of application till the date of order, failing which the amount shall carry interest @ 12 % per annum, till realization. The appellant was also asked to pay proportionate cost of application fee of Rs. 5,630/- (Rupees Five Thousand Six Hundred and Thirty Only) and legal practitioner's fee of Rs. 3,000/- (Rupees Three Thousand) Only.
3. The brief facts of the case is that five train load consignment of coal rakes was booked from Rangiya Junction to Orissa Cement Limited, Rajgangpur, on 23.12.2007, 18.01.2008, 15.02.2008 and 10.04.2008, 07.05.2008 and the goods were delivered to the destination on 26.07.2007, 22.01.2008, 19.02.2008, 14.04.2008 and 12.05.2008 respectively. The Railway Page No.# 3/9 collected freight overcharge amounting to Rs. 6,25,560 (Rupees Six Lacs Twenty Five Thousand Five Hundred and Sixty Only) in the above coal rakes against under Charges on the allegation of overloading found enroute and collected at the destination much after the delivery of goods.
4. According to the applicant/respondent, demand of freight overcharge after delivery of goods is illegal and claimed refund of the same and stated that the respondent is fully liable for the said loss. Subsequently, notice of the said application was given to the appellant/Railways and on receipt of the notice, the appellant/Railway filed written reply stating that the refund application, made by the respondent/applicant was not maintainable as the same was not verified by proper person having authority. The appellant/Railways has not admitted that the applicant was entitled for refund of the freight over charge as the applicant was unable to prove that. Hence, the question of payment did not arise and prayed for dismissal of the case.
5. On the pleadings of the parties, the Tribunal has framed the following issues:-
1) Whether notice under Section 106 of the Railway Act is valid or not!
2) Whether the respondent has proved that the applicant has overloaded consignment beyond the prescribed limit!
3) Whether total number of bags loaded and unloaded is same!
4) Whether the claim of the penal charges demanded by the Railways after delivery of the consignment is valid! Page No.# 4/9
5) Relief and order!
6. After hearing both sides and having gone through the documents available in the record, the learned Member, RCT, delivered the Judgment awarding compensation as aforesaid.
7. Being aggrieved by the said order, the appellant/Railways has preferred this appeal, on the ground that the Tribunal has failed to consider that as per Section 106(3) of Railways Act, a person shall not be entitled to a refund of an overcharge in respect of goods carried by Railways, unless a notice, therefore, has been served by him or on his behalf, to the Railway administration, to which the overcharge has been paid within 6 (six) months from the date of such payment or the date of delivery of the goods at the destination station, whichever is later. The Tribunal has erroneously applied the principle of unjust enrichment. Thus, it has resulted in miscarriage of justice.
8. It was urged by the learned counsel for the appellant that the RCT has failed to consider that overall 5 (five) rakes of coal enroute at New Bongaigaon and Rajgangpur and raised punitive charges under Sections 73 and 78 of the Railways Act, 1989, at destination station to the extent of Rs. 6,25,560/- by the consignee OCL India Limited and the said amount of Rs. 6,25,560/- was paid by the consignee/OCL India Limited to the appellant, much after taking delivery of the goods.
9. It is also the submission for the learned counsel for the appellant that neither the consignee, M/s OCL India Limited nor the applicant/respondent made any request to the railway administration for re-weighment of the consignment as provided under Section 79 of Page No.# 5/9 the Railways Act, 1989 at the time of making payment on 19.08.2008. It is also stated that the freight was realized on the basis of weight shown in forwarding note and weighment was done by the Railway enroute. As such, excess load was detected as per weighment of the wagons at New Bongaigaon and Rajgangpur. However, neither the consignor nor the consignee or the respondent could establish that there was no excess load in weight as alleged by the respondent/applicant. The respondent applicant through his own revelation has expressly admitted the facts of overweight in the claim application. In view of the above, the collection of penal charges by Railways is not illegal, unjustified and violation of principles of natural justice as alleged by the respondent/applicant.
10. In support of her submission, learned counsel for the appellant has cited one case law of Gauhati High Court in MFA No. 61/2016 (Union of India -Vs- M/s Sri Shiv Sai Steel Industries).
11. Per contra, learned counsel for the respondent/applicant has submitted that in view of Section 73 of the Railways Act, 1989, the impugned demand can be made only before the delivery of the goods, but in the instant case, demand has been made after the delivery of the goods and as such, the respondent/applicants are not liable to pay penalty charges so imposed upon them. Thus, the Railway Claims Tribunal has rightly come to the conclusion that the respondent Company was entitled for refund of excess charges.
12. In view of the rival contentions, the only question that arises for consideration is whether the learned RCT has committed error in allowing the claim for refund of excess charges.
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13. It is an admitted fact that the respondent/Company had transported the coal rakes through the railways for the period 23.12.2007 to 07.05.2008 at the rates fixed by the Railways. The main controversy was in respect of refund of excess freight charges said to have been collected by the Railways than the prescribed rates fixed on the allegation of overloading. The applicant in his application has mentioned that five train load consignment of coal was booked from Rangiya to GP/OCL siding. But the Railway collected total Rs. 6,25,560/- vide money receipt No. 036173 dated 19.08.2008, for five coal rakes against under charges on the allegation of overloading, which was detected enroute from New Bongaigaon and Rajgangpur and collected the said amount at destination, much after the date of delivery of goods. After going through the record, it cannot be ascertained whether the applicant was informed regarding re-weighment of their consignment, which is against the principles of natural justice and the appellant realized the said amount as excess charge on the allegation of overloading.
14. Section 106 (3) of the Railways Act, 1989, deals with the refund of overcharge, which reads as follows:-
"A person shall not be entitled to a refund of an overcharge in respect of goods carried by railway unless a notice therefor has been served by him or on his behalf to the railway administration to which the overcharge has been paid within six months from the date of such payment or the date of delivery of such goods at the destination station, whichever is later."
15. It is not in dispute that Section 106 creates a bar to claim compensation against the railway administration for refund of charges within six months from the date of such payment Page No.# 7/9 or the date of delivery of goods at the destination station. Section 106 of the Indian Railways Act creates a bar for claim for refund of over charges, if it is not noticed, within a period of six months from the date of such payment or date of delivery of goods at the destination station, whichever is later. To meet out any difficulty in respect of refund of the overcharge, the Railway Board had issued notification dated 11.01.1995, delegating the powers to the general manager to settle time-barred compensation claims in respect of refund of overcharges. This power was exercised by the Railway Board under the provision of Indian Railway Board Act, 1905, to meet out the exigencies for refund of the overcharges.
16. Admittedly, in the case in hand, none of the parties has raised any objection on the ground of limitation for filing of the refund claim after the statutory period of six months. So, that point is not discussed in the Judgment.
17. Section 73 of the Railways Act, 1989 states that-
"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 Page No.# 8/9 for the detention of any wagon on this account."
18. In the case in hand, the learned counsel for the appellant/Railways, at the time of making her submission admitted that overloading of five rakes of coal detected enroute from New Bongaigaon and Rajgangpur and punitive charges were fixed by the Railways at destination station to the extent Rs. 6,25,560/- to the consignee, OCL India Limited and the said amount was paid by the consignee, OCL to the appellant Railways, much after taking delivery of the goods, which is against the provision of law, as it is clearly stated in Section 73 of the Railways Act that the charges for overloading is to be refixed before the delivery of the goods.
19. It appears from the documents available on record that the demand of overcharge was made on the first instance on 10.05.2008 and the date of delivery was done on 26.12.2007. Second demand was made on 20.05.2008, and the delivery was done on 22.01.2008 and then overcharge was demanded on 15.05.2008 against the delivery on 19.02.2008 and 14.04.2008 and the last demand was made on 16.05.2008 against the delivery on 12.05.2008. It transpires that the demand of overcharge was made after substantial period of delivery of goods, which is not permissible as per provision of Section 73 of the Railways Act, 1989.
20. The learned RCT, at the time of delivering the judgment, has referred some case laws of the Gauhati High Court on the issue of refund of overcharge in Railways, vide the decisions cited in 1995 (3) GLT 548, 1999 (3) GLT 80 and (2003) 2 GLR 429. In all the aforesaid cases, it was decided that the Railways must satisfy the Court that the weighment taken is correct and the penalty can be only if overloading is proved. Mere fact that the weighment has been Page No.# 9/9 taken at the weighbridge, cannot be a reason for penalty, without giving an opportunity to show cause to the person concerned.
21. In the case in hand, it is an admitted fact that the applicant was not informed that their consignment would be re-weighed and the admitted position of law is that punitive measure of resulting the actual penalty can be exercised by the authority only after following the principles of natural justice.
22. In view of the above, I do not find any error in the Order dated 20.09.2011, passed by the Railway Claims Tribunal, Guwahati Bench, Guwahati, in Claim Application No. OA III/GHY/2009/0007 (Old number OAIII07/2009). Hence, the appeal is dismissed.
23. There is no order as to cost(s) .
24. Return the LCR.
JUDGE Comparing Assistant