Madras High Court
Union Of India vs M/S.Mysore Mercantile Co on 16 February, 2021
Equivalent citations: AIRONLINE 2021 MAD 309
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
C.M.A.No.3545 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.02.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
C.M.A.No.3545 of 2019
and
C.M.P.Nos.20674 & 20675 of 2019
1.Union of India,
Owning Southern Railway,
Rep.by its General Manager,
Southern Railway, Park Town,
Chennai – 600 003.
2.Chief Goods Supervisor,
Korukkupet Goods, Southern Railway,
Chennai – 600 018. ..Appellants
Vs.
1.M/s.Mysore Mercantile Co., Ltd.,
Rep.by its Director / Authorized Signatory,
B.N.Choudhary,
No.203 & 202 Shreshta Bumi,
No.87, K.R.Road, Basavangudi,
Bengaluru – 560 004.
2.M/s.Container Corporation of India Ltd.,
Inland Container Deport, Ennore High Road,
Santhangadu, Thiruvottiyur,
Chennai – 600 019. ..Respondents
Prayer : Civil Miscellaneous Appeal filed under Section 23(1) of the
Railway Claim Tribunal Act, against the order dated 14.03.2019 passed
in OA (III) / 1 / 2018 by the Railway Claims Tribunal at Chennai.
https://www.mhc.tn.gov.in/judis/
1/38
C.M.A.No.3545 of 2019
For Appellants : Mr.Vijay Anand M.
For Respondents : Mr.T.Rajamohan
[For R1]
Mr.D.Baskar
[For R2]
JUDGMENT
This Civil Miscellaneous Appeal on hand is preferred against the judgment dated 14.03.2019 passed by the Railway Claims Tribunal, Chennai Bench in OA(III)/1/2018.
2. The appeal is filed by the Union of India owning Southern Railway represented by its General Manager.
3. The facts in nutshell as narrated by the appellants are that the 1st respondent / M/s.Mysore Mercantile Co., Ltd., has filed a Claim Petition under Section 36(b) & (c) before the Railway Claims Tribunal, Chennai, numbered as Complaint No.1/2015, with a prayer to declare that the order passed by the 2nd appellant / Chief Goods Supervisor in proceedings No.KOKG/ICTD/Punitive charges/01/15 dated 13.01.2015 claiming punitive charges of Rs.22,35,310/- relating to the consignment of Maize booked under Invoice No.2, RR No.212000009 dated 11.01.2015 for transportation from Shimoga Town to Inland Container https://www.mhc.tn.gov.in/judis/ 2/38 C.M.A.No.3545 of 2019 Depot at Chennai Tondairpet is unreasonable and further, sought for a direction, seeking refund of a sum of Rs.11,17,655/- being the 50% of the alleged punitive charges and revoke the Bank Guarantee furnished by the Complainant/1st respondent for Rs.11,17,655/- being the balance of the 50% of the alleged punitive charges, which amounts were paid subsequent to the filing of the Writ Petition as per order dated 30.01.2015 passed in M.P.No.1&2 of 2015 in W.P.No.2008/2015.
4. The Tribunal allowed the Claim Petition.
5. The 1st respondent in his complaint, has contended that 39,638 bags of maize purporting to weigh 60 kgs per bag was transported from Shimoga Town to Inland Container Depot at Tondiarpet, Chennai. The total weight as declared by the 1st respondent was 2484 MT loaded in 41 wagons. At the destination station at Tondairpet Inland Container, when the goods arrived, the 2nd appellant has done the re-weighment in transit at Tiruvalangadu Electronic In-motion Weigh Bridge and at that point of time, it was detected that there was an excess in weighment to the tune of 316.50 MT on 13.01.2015. Therefore, the 2nd appellant had levied a penalty of Rs.22,35,310/- for the excess load loaded by the 1 st https://www.mhc.tn.gov.in/judis/ 3/38 C.M.A.No.3545 of 2019 respondent. The calculations of excess weight per wagon had been worked out and the same was accompanied with the notice sent to the 1st respondent.
6. The 1st respondent had sought for permission to unload the wagons to avoid demurrage and also sought for re-weighment. The said request of the 1st respondent was forwarded to the Divisional Commercial Manager and the official by way of written reply categorically replied that as per the prevailing rules and norms, no re- weighment is allowed in terms of the goods transported. Aggrieved by the said decision, the 1st respondent had filed a Writ Petition in W.P.No.2008 of 2015 before the Hon'ble High Court of Madras and an interim order was passed by the High Court, directing the appellants to accept the 50% payment of Rs.11,17,655/- and also ordered to provide bank guarantee for the remaining 50% of the punitive charges. By complying with the said order, the 1st respondent had taken back his goods. Thereafter, the writ petition was transferred to the Railways Claim Tribunal.
https://www.mhc.tn.gov.in/judis/ 4/38 C.M.A.No.3545 of 2019
7. It is contended that the 1st respondent is only the consignee and the consignment in question was actually booked by M/s.Supreme Proteins (Consignor). The Railway Receipt No.212000009 dated 11.01.2015 has been issued for booking of 41(BCN/BCNA/BCNAHS) wagons containing Maize in non standard gunny bags from Shimoga Town (SMET) to Inland Container Depot Tondiarpet (ICDT) at trainload class rate – 130 under Railway Risk Rate and only one rate (i.e.RR) is available for the commodity of maize and freight also collected accordingly. In the Railway Receipt, the Risk rate had been erroneously mentioned as OR(Owners Risk).
8. The consignment in question was not weighed at the originating station, the same has been weighed at enroute station i.e. at the Electronic In-motion Weigh Bridge in Tiruvalangadu. As per para 1422 of Indian Railway Commercial Manual Vol.II, Railways are empowered to weigh the consignment at en route station. Based on the enroute weighment in Electronic In-motion Weigh Bridge at Tiruvalangadu, the punitive charges have been raised by the 2nd appellant for the overloaded wagons in accordance with Railway Board's Circular No.19/2012.
https://www.mhc.tn.gov.in/judis/ 5/38 C.M.A.No.3545 of 2019
9. According to para 1422 amended vide Correction Slip No.20 dated 26.07.2000 of Indian Railway Commercial Manual (Vol.II), goods loaded in more than one wagon are required to be weighed on a weighbridge only. As per the above rules, the weighment results based on weighment done in private weighbridge cannot be taken into account for determining the punitive charges for the overloaded wagons. Section 79 can be applied only in respect of consignment booked other than Railway Risk Rate. In respect of wagon load or train load consignment booked under Railway Risk Rate, the second proviso under Section 79 alone would apply. Therefore, the request of weighment of consignment has to be considered only under Section 79 and the rules made there under. In exercise of powers conferred under Sections 79 and 87(2)(g) of the Act, the Central Government have framed “weighment of consignments (in wagon load or train load) Rule 1190”. On a reading of Rule 3 & 4 of the said rules, it is clear that only in cases, where the consignee or endorsee of a wagons load or train load booked at Railway Risk Rate may, if he has reason to believe that the wagons offered for delivery at destination station does not contain the quantity of goods entrusted for carrying, make a request in writing for weighment of such https://www.mhc.tn.gov.in/judis/ 6/38 C.M.A.No.3545 of 2019 consignment at the destination station. In the instant case, all the consignment in question were booked at Railway Risk Rate and it is not the case of the 1st respondent that they have reasons to believe that the wagons offered to them for delivery at destination did not contain the quantity of goods entrusted for carriage. Therefore, the respondent does not have any right under Rule 3 of the same rule to make a request for re-weighment of wagon load or train consignment and the same is not an arbitrary one.
10. With regard to the functioning of the Electronic In-motion Weigh Bridge at Tiruvalangadu, the same have been installed by Indian Railway as per the RDSO design / specification. Further, its functioning and the accuracy of weight recorded thereon are certified by the weights and Measures Department / State Government of Tamil nadu. Further, according to para 1422 amended vide correction slip No.20 dated 26.07.2000 of Indian Railway Commercial Manual (Vol.II), goods loaded in more than one wagon are required to be weighed on a wagon in motion weighbridge only. The goods loaded on more than one wagon should be weighed only on a wagon weighbridge and the weighment done in the private weigh bridge at IDCT cannot be taken into account. https://www.mhc.tn.gov.in/judis/ 7/38 C.M.A.No.3545 of 2019
11. As per Section 83 of Railway Act, the 2 nd appellant withheld the part consignment towards the punitive charges due from the 1 st respondent based on the enroute weighment done at Tiruvalangadu. It is pertinent to mention here that the weighment done at Tiruvalangadu is not a re-weighment as stated by the 1st respondent and it is a first weighment done as per the instructions received from Senior Divisional Commercial Manager, Mysore. It is submitted that according to para 1422 amended vide correction slip No.20 dated 26.07.2000 of Indian Railway Commercial Manual (vol.II), goods loaded in more than one wagon are required to be weighed on wagon weighbridge only and the weighment done in the private weigh bridge at ICDT cannot be taken into account.
12. With reference to Section 73 of Railway Act and Board's Circular No.19/2012, punitive charges have been raised by the 2nd appellant and the same is legally sustainable. As per extant rules, goods loaded in more than one wagon are required to be weighed on a wagon weighbridge only. In the above said circumstances, the impugned order dated 13.01.2015 issued by the second appellant, demanding payment of https://www.mhc.tn.gov.in/judis/ 8/38 C.M.A.No.3545 of 2019 punitive charges to the extent of Rs.22,35,310/- is in accordance with extant rules and provisions of the Railway Act.
13.The appellants have mainly raised the grounds regarding the findings arrived by the Railway Claims Tribunal. It is contended that the Railway Tribunal has failed to consider the answer statement filed by the appellants. The consignment was loaded by the 1st respondent in the Non-Standard bags and were in loose conditions while loading in the wagons and so, the Divisional Commercial Manager, Mysore had issued a message to the destination station to weigh the consignment before delivery of the same since no wagon weigh bridge is available at the loading / forwarding station. Thus, the Tribunal has not provided an opportunity to the appellants to establish their case in this aspect.
14. The 1st respondent is the only consignee and the consignment was actually booked by M/s.Supreme Proteins under Railway Receipt No.212000009 dated 11.01.2015, which had been issued for booking of 41 (BCN/BCNA/BCNAHS) wagons containing Maize in non standard gunny bags from Shimoga Town (SMET) to Inland container Depot Tondiarpet (ICDT) at trainload class rate – 130 under Railway Risk Rate https://www.mhc.tn.gov.in/judis/ 9/38 C.M.A.No.3545 of 2019 and only one rate (i.e. RR) is available for the commodity of maize and freight was also collected accordingly. The Railway Tribunal failed to consider that the consignment in question, was not weighed at the originating station and the same has been weighed at enroute station i.e. at Tiruvalangadu. As per para – 1422 of the Indian Railway Commercial Manual Vol.II, Railways are empowered to weigh the consignment at enroute station. Based on the enroute weighment in the Electronic In- motion Weigh Bridge at Tiruvalangadu, the punitive charges have been raised by the 2nd appellant for the overloaded wagons in accordance with Board's Circular No.19/2012. The Tribunal further not considered the fact that according to Para 1422 amended vide Correction Slip No.20 dated 26.07.2000 of Indian Railway Commercial Manual (Vol.II), goods loaded in more than one wagon are required to be weighed on a wagon weighbridge only. It is contended that under Section 79 of the Act or provision may be applied only in respect of consignment booked under rate other than Railway Risk Rate. In respect of wagon load or train load consignment booked under Railway Risk Rate, the second proviso under Section 79 alone would apply. Thus, the request of weighment of consignment has to be considered only under Section 79 and the rules made there under. The Railway Tribunal has not considered the fact that https://www.mhc.tn.gov.in/judis/ 10/38 C.M.A.No.3545 of 2019 in exercise of powers conferred under Section 79 and 87 (2)(g) of the Act, the Central Government have framed “Weighment of consignments (in wagon load or train load) Rule 1190”. On a reading of Rule 3 & 4 of the said rules, it is clear that only in cases, where the consignee or endorsee of a wagons load or train load booked at Railway Risk Rate may, if he has reason to believe that the wagons offered for delivery at destination station does not contain the quantity of goods entrusted for carrying, make a request in writing for weighment of such consignment at the destination station. In the instant case, all the consignment in question were booked at Railway Risk Rate and it is not the case of the 1st respondent that they have reasons to believe that the wagons offered to them for delivery at destination did not contain the quantity of goods entrusted for carriage. Thus, the 1st respondent has no rights under Rule 3 of the same rule to make a request for weighment of wagon load or train consignment and after finding the over loading in the wagons, the punitive charges were imposed on the 1st respondent.
15. It is contended that loading / unloading had been done by the consignor/consignee and the same was not supervised by the Railway authorities. In this case, after loading at the starting point, the https://www.mhc.tn.gov.in/judis/ 11/38 C.M.A.No.3545 of 2019 overloading was detected at Tiruvalangadu. The Consignment at the forwarding station was loaded by the consignor / M/s.Supreme Proteins and the same were unloaded by M/s.Mysore Mercantile Co., Ltd., who is a different party and who did not have any knowledge of overloading at the forwarding station.
16. The 1st respondent defended the contentions of the appellants / Railways by stating that the 1st respondent is a dealer and exporter of Food grains. The 1st respondent had availed the services of Railways for transporting the Maize consignments. The 1st respondent is the named consignee of 39638 bags of Maize each weighing 60 Kgs transported from Shimoga Town to Inland Container Depot at Chennai Tondiarpet vide Invoice No.2, Railway Receipt No.212000009 dated 11.01.2015. The consignment was booked after doing necessary weighment of each lorry load at Shimoga and loaded as per the given carrying capacity of the wagons. The total weight of the consignment loaded in 41 wagons is 2484 MT. The consignment was accepted at the booking station recording the actual weight of each of the wagons and the freight was charged for the carrying capacity of 41 wagons namely 2521 MT and accordingly, the freight was prepaid at the forwarding station. The https://www.mhc.tn.gov.in/judis/ 12/38 C.M.A.No.3545 of 2019 consignment was booked at Railway rate risk as only one rate of booking is available for the commodity of Maize booked and the entry as if booked under Owner Risk was made wrongly in the Railway Receipt. The trainload was re-weighed at Tiruvalanagadu in-motion weigh bridge and that an alleged excess weight of 248.14 MT was noticed and demand was issued by the 3rd respondent for an excess of 316.54 MT as against the alleged weight of 248.14 MT recorded at Tiruvalangadu. The 2nd appellant issued a demand letter bearing Ref.No.KOKG/ICDT/Punitive charges/01/15 dated 13.01.2015 for Rs.22,35,310/- for the train load of 41 wagons on the ground that while making re-weighment at in motion weigh bridge at Tiruvalanagadu, an excess weight of 316.54 MT was detected and charging the 1st respondent to the difference in the weight and was also called upon to pay the same.
17. It is contended that the consignment was booked to the 1st respondent were all weighed before loading and there is no possibility of excess loading. The 1st respondent had requested for re-weighment of the consignment vide letter dated 13.01.2015 and the appellants have not conceded to the request of the 1st respondent for re-weighment and it https://www.mhc.tn.gov.in/judis/ 13/38 C.M.A.No.3545 of 2019 is illegal. When the request was made under Section 79 of Railways Act for reweighment, the said request was not considered. Refusal on the part of the Railway Administration to have the re-weighment process is arbitrary and affecting the rights of the rail users. The goods were unloaded at Tondiarpet Depot Station and were lying under storage charges arising on account of delay on the part of the respondents to reweigh the consignment before delivery. The 2nd appellant in letter dated 20.01.2015, directed to withhold only four wagon load of the consignment equivalent to claim of punitive charges of Rs.22,35,310/-. It is stated that the bagged consignment of Maize Weighing a total weight of 313.46 MT was stored in their godown and the remaining bags were de-stuffed from the gunny bags and the Maize grains were stuffed in 90 containers weighing a total weight of 2134.43 MT. The empty gunny bags of the Maize loaded into containers weighed a total weight of 22.42 MT. The entire consignment including the part of the consignment withheld and the 90 containers delivered to the 1st respondent works out to 2470.31 MT. The entire weighment were done by the officials of the 2nd respondent in their weigh bridge. The total re- weighment recorded by the 2nd respondent is 2470.31 MT as against the weight recorded in the Railway Receipt viz., 2484 MT. When the re- https://www.mhc.tn.gov.in/judis/ 14/38 C.M.A.No.3545 of 2019 weighment of the consignment is only 2470.31 MT, there is no scope of excess weight of 314.56 MT. Thus, the re-weighment at Tiruvalangadu recording excess load is proved to be due to technical defects or non- calibration of electronic weigh bridge or due to non-compliance of speed restrictions or defects of the recording of Tare weight of the 41 wagons.
18. The 2nd respondent / M/s.Container Corporation of India Limited, contended that from the BCN rake, the 1st respondent had directly stuffed 90 containers and the balance cargo stored in the warehouse of CONCOR. As per the practice, the cargo arrived and directly stuffed to the containers are weighed in the static weigh bridge located in the premises. On 20.01.2015, vide letter of the 2 nd appellant, it was intimated that approximately 4 (Four) BCN wagon loads of Maize be retained till the payment of Rs.22,35,310/- towards punitive charges and accordingly, the 2nd respondent had retained 313.46 MT of Maize in the warehouse.
19. The Tribunal framed the following issues:
(1) Whether the weighments recorded by the In-
motion weigh bridge at Tiruvalangadu are not correct, as the weigh https://www.mhc.tn.gov.in/judis/ bridge is faulty, as alleged by the 15/38 C.M.A.No.3545 of 2019 Complainant?
(2) Whether the Complainant is entitled for re-
weighment as demanded by them?
(3) Whether the alleged weighment made by the 2nd respondent is binding on respondents 1 & 3?
(4) Whether the order dated 13.01.2015 passed by the 3rd respondent claiming punitive charges of Rs.22,35,310/- relating to the consignment of maize booked under RR No.212000009 dated 11.01.2015 booked from Shimoga Town to Inland Container Depot at Chennai Tondiarpet is just and reasonable?
(5) Whether the Complainant is entitled for refund of Rs.11,17,655/- being 50% of the alleged punitive charges and revoking of Bank Guarantee furnished by the Complainant for Rs.11,17,655/- being the balance of the 50% of the alleged punitive charges in pursuance of the order passed in M.P.No.1 & 2 of 2015 in W.P.No.2008 of 2015.”
20. With reference to Issue No.1, the Tribunal, at the first instance, arrived a finding that as the issue was not capable of being answered one way or the other and look to whether the demand made could still be justified. This will take us to examination of the issue No.2, which raises a question of whether the complainant was entitled for re-weighment.
https://www.mhc.tn.gov.in/judis/ 16/38 C.M.A.No.3545 of 2019
21. In this regard, it is to be considered by this Court whether the said issue can be decided with reference to the facts and evidences or not. The facts regarding loading of Maize by the 1st respondent is not denied, which is at Railway Risk Rate and it is an admitted fact that measurement was taken by the 1st time by the Indian Railways, in Electronic In-motion Weigh Bridge at Tiruvalangadu. The only ground raised by the 1st respondent is that there is a possibility of mistake on the side of the Railways or there is a probability of error in the Electronic In-motion Weigh Bridge at Tiruvalangadu. These all are the broad allegations raised by the 1st respondent. However, the 1st respondent has not established that the Electronic In-motion Weigh Bridge at Tiruvalangadu is at fault or the measurements are not taken in accordance with the procedures as contemplated under the Indian Railway Commercial Manual or with reference to the rules in force.
22. The contention of the 1st respondent is that under Section 79 of the Railways Act, the 1st respondent is entitled to seek for reweighment. The appellants/Railways relies on the second proviso to Section 79 and contended that they are not obligated to do so at the https://www.mhc.tn.gov.in/judis/ 17/38 C.M.A.No.3545 of 2019 request of the 1st respondent, in view of the fact that as per the Act and Rules, the Railway authorities are empowered to weigh the loaded goods in an enroute.
23. Let us now consider the scope of Section 79 of the Railways Act 1989.
24. Section 79 stipulates “Weighment of consignment on request of the consigee or endorsee”. The language employed is that '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'.
25. Second proviso contemplates that “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 https://www.mhc.tn.gov.in/judis/ 18/38 C.M.A.No.3545 of 2019 weighment is not feasible due to congestion in the yard or such other circumstances as may be prescribed.”
26. Therefore, it is not mandatory on the part of the Indian Railways to concede to the request of the consignee or endorsee. Weighment of consignment on the request of the consignee may be made only if it is feasible and not otherwise.
27. The said provision has got a definite object. If the consignees or endorsees are allowed to seek for weighment, then in certain circumstances, it may not be practically possible for the Indian Railways to weigh the consignments. Various practical difficulties, circumstances prevailing in transporting are to be considered by the law makers for the purpose of reaching the object of the Act. Thus, the very intention of section is that only in certain circumstances, if it is feasible for such weighment, the same may be permitted by the Indian Railways on the request of the consignee or endorsee and therefore, Section 79 of the Railways Act do not provide an absolute right to accede the request of the consignee or endorsee for weighment of consignment. https://www.mhc.tn.gov.in/judis/ 19/38 C.M.A.No.3545 of 2019
28. Let us now consider the circumstances with reference to the case on hand.
29. 41 wagons of Maize are loaded at Shimoga Town at Mysore. It is an admitted fact that it was not loaded in a standard gunny bags. It is an admitted fact that no weighment has been done at the loading point. Thus, the Court cannot find fault with the Railway authorities in weighing the consignments in the enroute at Tiruvalangadu, wherein Electronic In-motion Weigh Bridge is available in between the starting point as well as the end point. Thus, the 1st opportunity made available to the Indian Railways to weigh the consignment is at Tiruvalangadu and it is pertinent to note that in the present case, the Divisional Commercial Manager from Mysore made an indication that there is a possibility of excess loading and accordingly, made an indication to weigh the consignment loaded by the 1st respondent at Shimoga Town. Pursuance to the indication provided by the Divisional Commercial Manager, Mysore, the Maize loaded by the 1st respondent was weighed at the Electronic In-motion Weigh Bridge at Tiruvalangadu and posted as per Paragraph 1422 of Indian Railway Commercial Manual Vol.II, Railways are empowered to weigh the consignment at enroute station. https://www.mhc.tn.gov.in/judis/ 20/38 C.M.A.No.3545 of 2019 Further, according to Paragraph 1422 amended vide Correction Slip No.20 dated 26.07.2000 of Indian Railway Commercial Manual (Vol.II), goods loaded in more than one wagon are required to be weighed on a wagon weighbridge only.
30. Therefore, the weighment cannot be done in Railway stations. Admittedly, the Maize were loaded in 41 wagons at Shimoga Town. As per the Indian Railway Commercial Manual, if the goods loaded in more than one wagon are required to be weighed on the wagon weigh bridge only. Thus, the wagon weigh bridge is available only at Tiruvalangadu, which is an enroute to Chennai Tondiarpet, wherein the goods are to be unloaded. The goods were admittedly loaded by the 1st respondent at Shimoga Town. The wagons were slipped and it was weighed at Tiruvalangadu in an enroute. Therefore, the 1st respondent may not have any other reason to doubt the measurement done at Tiruvalangadu in Electronic In-motion Weigh Bridge.
31. Regarding the allegations of fault in the weighing machine, it is contended that the functioning of the Electronic In-motion Weigh Bridge at Tiruvalangadu had been installed by Indian Railway as per the https://www.mhc.tn.gov.in/judis/ 21/38 C.M.A.No.3545 of 2019 RDSO design / specifications. Its functioning and the accuracy of weight recorded thereon are certified by the weights and Measures Department / State Government of Tamil nadu. Though broad allegations are raised by the 1st respondent regarding the measurements taken, the 1st respondent could not able to produce any evidence to establish that the weighing machine was not accurate. In the absence of any contra evidence, the weighment done by the Indian Railways are to be trusted upon. This apart, it is not feasible for the Indian Railways to weigh the loaded goods at the starting point or in the ending point at Tondiarpet, Chennai. The only possible place to conduct weighment is at Tiruvalangadu, wherein the Electronic In-motion Weigh Bridge is available. Thus, the Railway authorities have conducted weighment in the available place and therefore, their contention that by invoking second proviso to Section 79, they could not able to accede to the request of the 1st respondent is in accordance with Section 79 of the Railways Act and there is no infirmity as such. Further, Section 79 is an enabling provision and if it is feasible, then alone, the request of the consignee can be acceded. If it is not feasible, the Railway authorities may reject such request and the only requirement is that the reason must be furnished and must be acceptable.
https://www.mhc.tn.gov.in/judis/ 22/38 C.M.A.No.3545 of 2019
32. In the present case, it is rejected in view of the fact that the Maize were loaded in the Shimoga Town by the 1st respondent and it was slipped and there was no facility to measure the wagons at the entire point. Therefore, they have conducted weighment at Tiruvalangadu. This being the circumstances, wherein the authorities of Indian Railways conducted weighment of the goods loaded, there is no other reason to doubt the genuinity of the weighment taken and the respondents also failed to establish that the weighment done by the Indian Railways were not in accordance with law or having no power to do so.
33. This being the factum established, the Tribunal ought to have decided Issue No.1 in favour of the appellant as the facts were not disputed and the 1st respondent raised vague allegations regarding the genuinity of the weighing machine. In view of the fact that the genuinity of the weighing machine was not disproved by the 1st respondent and further, the appellants / Railways could able to prove that it was properly certified by the competent authorities under the Statute, there is no reason to disbelieve the statement made by the appellant in this regard and therefore, the Tribunal has committed an error in holding that https://www.mhc.tn.gov.in/judis/ 23/38 C.M.A.No.3545 of 2019 the issue is not capable of being answered. This Court is of the opinion that it is capable of being answered and accordingly, it is answered in favour of the appellant.
34. As far as Issue No.2 is concerned, as discussed in Issue No.1, the complainant is certainly entitled to make a request for reweighment. In this point, this Court is of the considered opinion that the question of reweighment does not arise at all. It is an admitted fact that at the loading point at Shimoga Town, the goods were not weighed either by the Indian Railways or by the 1st respondent in the presence of the authorities of the Indian Railways. Therefore, for all purposes, the weighment was not done in the loading point. The Maize were loaded in 41 wagons by the 1st respondent. Though the 1st respondent states that they have weighed in the lorry, the same cannot be trusted upon by the Indian Railway authorities, in view of the fact that the Divisional Commercial Manager, Mysore, formed an opinion that there is a likelihood of over loading in 41 wagons and accordingly, provided a communication to the Railway authorities to conduct weighment in Electronic In-motion Weigh Bridge at Tiruvalangadu. Thus, the weighment was done. Therefore, the 1st respondent is certainly has got a https://www.mhc.tn.gov.in/judis/ 24/38 C.M.A.No.3545 of 2019 right to make a request for weighment. In the present case, the 1st respondent had done so. However, as per Section 79 of the Railways Act, such a request may be accepted by the competent authority. The language employed in Section 79 is that the Railway administration may on the request made by the consignee or endorsees. This exactly the reason why two proviso clauses are provided in the provision. If such a weighment is made as an absolute right, then it may not be practically possible for the Indian Railways to load or unload such huge quantity of consignments in many number of wagons of Maize. Considering the practical difficulties and availability of such Electronic In-motion Weigh Bridges in limited stations, the legislatures thought fit that the discretion must be given to the competent authorities of the Indian Railways and the authorities are expected to act fairly and in the manner known to law.
35. In the present case, the 1st respondent made a request, it was considered and rejected mainly on the ground that at the entry point, it was not weighed. It was weighed by the Railway authorities at Tiruvalangadu. They have produced the certificate issued by the competent authorities under the Weights and Measurements https://www.mhc.tn.gov.in/judis/ 25/38 C.M.A.No.3545 of 2019 Departments of the State Government of Tamil Nadu. Therefore, the correctness of the Electronic machine cannot be questioned by the 1st respondent in the absence of any clinching evidence. In the present case, the appellants have invoked the second proviso to Section 79 and rejected the request on the ground that the weighment is not feasible due to certain circumstances. The circumstances narrated are that the Electronic In-motion Weigh Bridge is not available in between Shimoga Town and Tondiarpet, Chennai except at Tiruvalangadu. Thus, they have conducted weighment at Tiruvalangadu, which is the possible place for conducting weighment.
36. In view of the above reasons, this Court could able to arrive a conclusion that the complainant is entitled to make a request for weighment and re-weighment cannot be an absolute right. The right conferred is to make a request for weighment and such request may be rejected on certain circumstances narrated in Provisos to Section 79 of Railways Act. Accordingly, Issue No.2 is answered.
37. The Issue No.3 is whether the alleged weighment made by the 2nd respondent is binding on respondents 1 & 3.
https://www.mhc.tn.gov.in/judis/ 26/38 C.M.A.No.3545 of 2019
38. The 2nd respondent is M/s.Container Corporation of India Ltd. It was contended by the 1st respondent that the Container Corporation of India Limited is possessed by Indian Railways as Indian Railways is the major shareholder. Therefore, the reweighment done by the 2nd respondent is to be accepted. As per the re-measurement done by the 2nd respondent, the 1st respondent has not loaded any excessive consignment. The Tribunal with reference to Issue No.3, made a finding that “The weighment done by the 2nd respondent that would show that there was no excess load, is not required to be binding but it is only a manner of showing that the 1st respondent's own action cannot be seen to be reasonable in an exercise of weighment done through the 2nd respondent which is a public company where the Union has the majority stake, will take this to be relevant even if not binding”.
39. Thus, the Tribunal held that the weighment done by the 2nd respondent is not binding on the Indian Railways. The said finding is undoubtedly in consonance with the provisions of the Railways Act and in accordance with the Rules.
https://www.mhc.tn.gov.in/judis/ 27/38 C.M.A.No.3545 of 2019
40. The learned counsel for the 1st respondent reiterated the 2nd respondent/Container Corporation of India is part of Railway Administration. When one wing of the Railway administration conducts reweighment after unloading the goods, the said reweighment is binding on the railway authorities. The learned counsel for the 1st respondent cited the judgment of Delhi High Court in the case of Brahm Dev Gupta Vs. Container Corporation of India & another dated 25.02.2015. The learned counsel relied on the proposition that under the Railways Act, more specifically, Section 232 defines Railway administration. In the present case, the 2nd respondent/Container Corporation of India is also part of Railway administration and therefore, the reweighment conducted by the 2nd respondent is binding on the appellants. The judgment cited reveals that the facts and circumstances are distinct and different. In the case before the Delhi High Court, the Railway Board have authorized CONCOR to issue CONCOR Inland Way Bill (IWB) in lieu of Railway Receipt and also to quote and collect all charges directly from the customer. However, such a nature of authorization is not available in respect of the present case on hand. Even in case of reweighment, if there is any authorization from the competent authorities of the appellants/Railways, then alone, such https://www.mhc.tn.gov.in/judis/ 28/38 C.M.A.No.3545 of 2019 reweighment can be trusted upon and a casual reweighment done after unloading the goods by the first respondent company cannot be taken into consideration for the purpose of exonerating the appellant from payment of penalty charges. Thus, the said judgment of the Delhi High Court is of no avail to the 1st respondent company.
41. In the present case, even there was no consent by the competent authorities of the Indian Railways in writing for conducting reweighment, the Railway Tribunal also made a clear finding that the weighment done by the 2nd respondent that would show that there was an excess load is not required to be binding. Thus, the Tribunal itself was doubtful regarding the sanctity attached to such reweighment unilaterally at the instance of the 1st respondent by the 2nd respondent. Under these circumstances, the said reweighment conducted by the 2nd respondent cannot be relied upon for the purpose of exonerating the 1st respondent from paying the demanded charges for overloading. Admittedly, the goods were unloaded from the 41 wagons and thereafter, weighed in a static weighbridge loaded in the premises. Thus the Court cannot held that such reweighment after unloading by the consignee shall be relied upon.
https://www.mhc.tn.gov.in/judis/ 29/38 C.M.A.No.3545 of 2019
42. The second respondent filed a counter affidavit in the present appeal as per the practice, the cargo arrived and directly stuffed to the containers are weighed in the static weigh bridge located in the premises. From the BCN rake, the 1st respondent had directly stuffed 90 containers and the balance cargo stored in the warehouse of CONCOR. This being the factum established, the reweighment was not done with any authorization by the competent authorities of the Railways. The routine weighment after unloading from the wagons are conducted at the instance of the first respondent company and more specifically, without the knowledge of the appellants/Railway authorities. Thus, such reweighment cannot be a ground to seek exoneration from the payment of penalty charges as demanded by the appellants/Railways.
43. Except this, nothing has been stated meaningfully in the counter filed by the 2nd respondent. Therefore, the 2nd respondent has not provided any authenticity or authority to conduct any such reweighmnet either under the provisions of the Railways Act or based on the order passed by the competent authorities of the Indian Railways to conduct such reweighment. Therefore, we cannot attach any sanctity in respect of https://www.mhc.tn.gov.in/judis/ 30/38 C.M.A.No.3545 of 2019 the reweighment done after reloading the consignments from the wagons by the 2nd respondent. In the absence of any legality, with reference to the reweighment done by the 2nd respondent, the Court cannot come to a conclusion that such reweighment is in accordance with law and the benefit is to be extended to the 1st respondent. Therefore, the weighment made by the 2nd respondent is certainly not binding on the appellants/Indian Railways.
44. With reference to Issue No.4, the Railway Tribunal held that the punitive charges levied was illegal and against the Principles of Natural Justice and with reference to Issue No.5, the Railway Tribunal held that the 1st respondent is entitled to the relief as sought for. Accordingly, directed to refund the amount deposited by the 1st respondent.
45. The Tribunal referred the judgments and perusal of those judgements reveals that they are not as connectable with reference to the facts and circumstances of the case on hand. Even in the case of Jayaswals Neco Limited vs. Union of India, reported in 2010 SCC online Del 3714, the Delhi High Court held that where the consignee https://www.mhc.tn.gov.in/judis/ 31/38 C.M.A.No.3545 of 2019 has been asked to pay the penalty amount for the alleged overloading detected on account of an in-motion reweighment done by the Railways under Section 78 of Railways Act, there is nothing in para 1744 that enables the Railways to automatically refuse a request made by the consignor, consignee or endorsee for reweighment.
46. However, the Delhi High Court has not considered the spirit of Section 79 as well as the Proviso clauses. Section 78 deals with Power to Measure, weigh etc., Undoubtedly, when the consignee has been asked to pay the penalty amount for overloading, detected on account of an in-motion reweighment done by the Railways, then automatically request for reweighment cannot be rejected. No doubt, rejection can never become automatic. Section 78 confers power to measure, weigh by the Railways before the delivery of the consignment. Section 79 confers right on the consignee or endorsee to make a request for measurement of consignment. Thus, right of request would not confer right of measurement. Right of request of the consignee or endorsee is an absolute right. However, right of weighment is not an absolute right in view of the proviso clauses provided under Section 79, which is in accordance with the established principles of law. If such a https://www.mhc.tn.gov.in/judis/ 32/38 C.M.A.No.3545 of 2019 right of weighment is conferred as an absolute right, then it may not be practically possible for the Indian Railways to transport consignments of this nature in large number of wagons. Section 79 has got a definite purpose and object. Right to make a request is conferred to fullfil the requirements of the Principles of Natural Justice. The power to reject the request is conferred on the Indian Railways, if there is a reason to reject such request. Thus, the Principles of Natural Justice has been complied with in Section 79 of the Railways Act. No unilateral decision is taken by the Indian Railways. Once a request is made, then the competent authorities are bound to analyse the circumstances, nature of consignment and other aspects of the matter and take a decision on merits and in accordance with law.
47. This being the Principles of Natural Justice to be followed by the authorities, the weighment at the instance of consignee cannot be an absolute right. However, to make a request by the consignee or endorsee is an absolute right. The authorities competent may accept such request or reject the request, if it is not feasible due to the reasons contemplated. The Courts are empowered to scrutinize the reasons furnished by the Railway Authorities for such rejection and if such rejections are in https://www.mhc.tn.gov.in/judis/ 33/38 C.M.A.No.3545 of 2019 accordance with the principles, then such a rejection is to be held as valid and in consonance with Section 79 of the Railways Act.
48. In the present case, the 1st respondent brought to the notice of this Court that even as per the report of the Chief Commercial Clerk, I.M.Weigh Bridge, Tiruvalangadu, the excess weighment is stated as 248.14 MT. Thus, the contention of the appellants that the excess weighment of 316.54 MT is erroneous.
49. In this regard, the learned counsel appearing on behalf of the appellants / Railways is directed to clarify and Mr.V.Varadarajan, Chief Commercial Inspector, Southern Railway is present before this Court and made a submission that the endorsement made by the Chief Commercial Clerk is a rough calculation made in hand writing without specific particulars regarding the wagon maize excess load. The wagon maize excess loading for 41 wagons are separately provided in a statement and the statement is enclosed in Page No.20 of the typed set of papers filed along with the present appeal. As per the above statement, the excess load is calculated as 316.54 MT. Thus, there is no deviation in respect of the assessment of excess loading and the hand writing https://www.mhc.tn.gov.in/judis/ 34/38 C.M.A.No.3545 of 2019 endorsement made by the Chief Commercial Clerk, Tiruvalangadu Taluk, is a rough calculation and cannot be construed as a conclusive calculation, which is done by the Competent Authority and the statement was also communicated to the first respondent and as per the said statement, the excess loading was 316.54 MT. Thus, this Court is of an opinion that the final assessment made by the Competent Authority is to be taken for the purpose of imposing Punitive Charges and this Court cannot rely on the endorsement made by the Chief Commercial Clerk in his hand writing, which is not an order for proceedings issued under the authority of law and such an endorsement cannot be relied upon to grant further concession to the first respondent.
50. In this view of the matter, the appellants / Railways are entitled to recover the punitive charges for the excess weighment of 316.54 MT. Thus, this Court has no hesitation in holding that the findings of the Railway Claims Tribunal in its order dated 14.03.2019 is not in consonance with the provisions of Section 79 of the Railways Act, 1989 and further the appreciation of facts and circumstances, interpretations of the provisions as well as the reasonings are also not in accordance with the established principles of law. Accordingly, the https://www.mhc.tn.gov.in/judis/ 35/38 C.M.A.No.3545 of 2019 order impugned is liable to be set aside.
51. Thus, the order dated 14.03.2019 passed by the Railway Claims Tribunal, Chennai in OA(III)/1/2018 is set aside. The appellants are directed to assess the penalty for the excess weighment of 316.54 MT and communicate the charges to be paid by the 1st respondent. The 1st respondent is directed to pay the demanded charges by the appellants/Railways within a period of four weeks from the date of receipt of a demand from the appellants/Railways.
52. Accordingly, the Civil Miscellaneous Appeal in C.M.A.No.3545 of 2019 stands allowed. No costs. Consequently, connected miscellaneous petitions are closed.
16.02.2021 kak Index: Yes/No Internet:Yes/No Speaking/Non-Speaking order https://www.mhc.tn.gov.in/judis/ 36/38 C.M.A.No.3545 of 2019 To
1. The Railway Claims Tribunal, Chennai.
2.The General Manager, Union of India, Owning Southern Railway, Southern Railway, Park Town, Chennai – 600 003.
3.Chief Goods Supervisor, Korukkupet Goods, Southern Railway, Chennai – 600 018.
https://www.mhc.tn.gov.in/judis/ 37/38 C.M.A.No.3545 of 2019 S.M.SUBRAMANIAM, J.
kak C.M.A.No.3545 of 2019 16.02.2021 https://www.mhc.tn.gov.in/judis/ 38/38