Gauhati High Court
Union Of India (N F Railway) vs M/S Steel Authourity Of India on 22 September, 2015
Author: N. Chaudhury
Bench: N. Chaudhury
1
IN THE GAUHATI HIGH COURT
(THE HIGH COUR T OF ASSAM , NAGALAND, M IZOR AM AND AR UNACHAL
PR ADESH )
M FA No.42 of 2007
The Union of India,
Represented by the General Manager,
N.F. Railways, Maligaon, Guwahati-11,
Assam.
..... Appellant
-Versus-
M/s Steel Authority of India,
M.N. Road, Panbazar, Guwahati-1
..... R espondent
BEFORE
HON'BLE MR. JUSTICE N. CHAUDHURY
For the appellant : Ms. B. Devi, SC, NF Rly.
For the Respondent : Mr. R.C. Saikia, Advocate.
Date of hearing & judgment : 22.09.2015 JUDGMENT AND ORDER (Oral) This appeal under Section 23 of the Railway Claims Tribunal Act, 1987 has been preferred by the NF Railways challenging the judgment and order dated 06.02.2007 passed by the Railway Claims Tribunal, Guwahati in OA No. 1146/TR/90. By that judgment and order the learned tribunal has directed the NF Railways to make payment of Rs.2,13,317/- to the M/s Steel Authority of India, MFA No.42 of 2007 2 which was the claimant before it, along with interest @ 6% per annum till realization from the date of filing of the application. A cost of Rs.3,678/- was also allowed along with legal practitioner's fee Rs.2,500/-. Whole amount was directed to be deposited within 60 days from the date of the order passed. Although, an application was filed by the NF Railways under Order XLI Rule 5 of the Code of Civil Procedure praying for stay of operation of the impugned judgment and order, but no such order was passed by this Court as because the learned Standing Counsel of NF Railways was not aware as to whether the award was complied with or not.
[2] The facts involved in this appeal are simple. The Steel Authority of India instituted Money Suit No.189 of 1983 in the Court of learned Assistant District Judge at Guwahati stating that it booked a consignment under invoice No.16 RR No.082695 dated 02.01.1979 and Wagon ER No.85205 from Bokaro Steel Plant to Pandu for a quantity of 55.500 MT of CR Sheets. On 11.08.1980 the wagon arrived at the destination but on verification it was found that the wagon met with an accident and the materials contained in it were in deteriorating condition. The defendant was intimated about the same and accordingly, a committee consisting of Area Officer of the NF Railway, Material Manager of Assam Small Industries Development Corporation, Senior Technical Officer of Assam Small Industries Development Corporation and the then Branch Manager of plaintiff's company was appointed to assess the value of damage materials. The assessment report was annexed as Document No.2 to the plaint. After the assessment was done and damage was ascertained, the plaintiff made a claim on 19.02.1981 to the Railway Administration. Thereafter, on 19.10.1982 a specific letter was addressed to the General Manager, N.F. Railways praying for payment of compensation against the damaged materials to the tune of 15.440 MT. The plaintiff thereafter served notice under Section 78B of the then Railways' Act read with Section 80 of the Code of Civil Procedure and demanded compensation. The defendant did not make payment for compensation for which the suit was instituted by the plaintiff for claim of shortage for 40.060 MT of CR Sheets to the tune of Rs.1,63,044.20 and for damage to the tune of Rs.50,272.00 and thus, MFA No.42 of 2007 3 the total claim was for Rs.2,13,316.80 which was rounded off to Rs.2,13,317.00. The plaintiff made prayer that the money decree be passed for the said amount in its favour. The defendant on being summoned appeared and submitted written statement. But it is surprised to find that the defendant did not specifically deny any of the statements made in the plaint and did not even file a full-fledged written statement. In Paragraph-7 of this one page written statement it is mentioned that the consignment in question was correctly delivered to the plaintiff on 26.04.1979 under clear receipt. But the defendant remained evidently silent as to what was a joint assessment by the authority under the defendant. On the basis of the aforesaid vague written statement submitted by the Indian Railways, the learned trial court framed as many as six issues and the same are quoted below:
"1) Whether the suit is maintainable in its present form?
2) Whether the suit is barred by Limitation?
3) Whether the notice under Section 78B of the IRA and 80 of the Code of Civil Procedure have been properly served on the defendant?
4) Whether there is negligence or misconduct on the p art of the defendant for not causing proper delivery/ non-delivery of the suit consignment?
5) Whether the plaintiff is entitled to the claim as made for?
6) To what relief or reliefs the plaintiff is entitled to?"
[3] These issues were framed on 05.12.1987 and the case was fixed for evidence on 08.01.1988. But thereafter, either the plaintiff or the defendant went on taking time for which ultimately the evidence was not led and in the meantime, the Railway Claims Tribunal Act, 1987 had been passed. Pursuant to the new enactment the records were transferred to the Railway Claims Tribunal in the year 1990 and thereupon, OA No.1146/TR/1990 was registered. Both the parties appeared before the Railway Claims Tribunal and at that time, all of a sudden the plaintiff filed an affidavit on 04.07.2005 stating that the deponent was warehouse manager of the plaintiff which had filed Money Suit No.189 of 1993 for compensation of Rs.2,13,316.80 for non-delivery/ shortage delivery of 40.060 MT CR Sheet and for damage of 15.440 MT CR Sheet. The consignment MFA No.42 of 2007 4 was booked in the Wagon No.SE-86205 under RR No.082710 dated 02.01.1979 and Railway Invoice No.W-34 for which notice under Section 78 B of Indian Railway Act was served on the defendants. The wagon was damaged in Railways accident and it reached the destination only on 11.08.1980 after lapse of more than one and half year. In Paragraph-5 of the affidavit it is stated that inadvertently the RR No.082695 instead of RR No.082710 was in the notice whereas the materials under RR No.082695 dated 02.01.1979 and Invoice Wagon No.19 received by the plaintiff but there was shortage of materials in respect to wagon No.SE-85205 against the RR No.082710 of the same date. It is further stated that the case has been pending for the last 22 years, for which even Bokaro Steel Plant could not provide the copy of this contract agreement of RR No.082710 dated 02.01.1979. It was claimed in the affidavit that the original RR No.082710 dated 02.01.1979 had been handed over by the plaintiff to the Railway Authority during Joint assessment conducted on 25.10.1980. After the aforesaid affidavit was filed, the Railway filed a so-called additional written reply keeping the space for date of the verification blank and without mentioning the date for filing as well. Be that as it may, said undated document is available in the lower court's record without indicating as to on which date the document was admitted into records. In this purported additional written reply, the defendants stated that notice served on 02.05.1979 under Section 78(B) of erstwhile Indian Railway Act by the applicant was against Invoice No. RR No.W.19/082695 and as such the application filed against Invoice No.34 dated 02.01.1979 is not maintainable for want of notice. In this additional reply the Railway did not make any statement as to whether the Original RR No.082710 had been actually received by the Railway Authority from the plaintiff in course of joint assessment held on 28.05.1980 and whether there were still any document in possession. The defendant did not make any mention about any of the averments made in either Paragraph-5 of the affidavit dated 04.07.2005 or about the joint assessment made by the Railway Authority.
[4] None of the parties led any evidence to the proceeding and in the absence of any evidence led by the parties the Railway Claims Tribunal took up the matter MFA No.42 of 2007 5 for disposal. After hearing the learned counsel for the parties the impugned judgment and award had been passed on 06.02.2007 allowing the claim of the plaintiff for Rs.2,13,316.80. It is this judgment which has been brought under challenge in the present appeal.
[5] The learned tribunal appears to have reframed the aforesaid issues on 09.11.2005 and thereupon the following six issues were reframed:
"(i) Whether OA is not maintainable for non service of proper notice?
(ii) Whether the OA is barred by limitation?
(iii) Whether the applicants prove that they had loaded the materials under RR No.082710 dated 02.01.1979 and not under RR No.082695 dated 02.01.1979?
(iv) Whether the applicants prove that the wagon carrying the material was involved in the accident and the material damaged to the extent of 15.444 MT and rest of material amounting to 40.060 MT was not delivered?
(v) Whether the applicants prove that they are entitled to compensation of Rs.50,272.60 towards the damaged materials and Rs.1,63,044.21 towards the loss of material totaling to Rs.2,13,316.80 with interest @ 18%?
(vi) What reliefs?"
[6] Issue No.3 among the six issues appears to be important. This refers to whether the plaintiff succeeded to prove that they had loaded the materials under RR No.082710 dated 02.01.1979 and not under RR No.082695. While deciding this issue, the learned tribunal observed that neither of the parties could produce any record to prove that subject consignment was booked under which invoice. But the plaintiff produced photocopies of some Railway Claims register from its custody which show that the consignment was booked under RR No.82710 dated 02.01.1979. But in the joint assessment report dated 25.10.1980 wagon No.ER-85205 and Invoice No.W-34 were recorded but the same do not tally with the revised RR. After making this observation no finding has been given MFA No.42 of 2007 6 by the learned tribunal as to whether the plaintiff has booked the consignment in RR No.082710. The learned tribunal also has failed to consider as to whether the so-called copies of Railway Claims register were maintained in regular course of business by the steel authority of India as required under Section 31 of the Railways Act and/ or whether there were loose sheets without having sanctity of the evidence. Records show that 2/3 photocopies of the pages were kept on the record by the plaintiff in support of their claim and described the same to be pages of Railway Claims Tribunal. Learned tribunal has not decided the issue No.3 either in affirmative or in negative but thereafter, proceeded to decide issue No.4. The learned tribunal recorded only four lines stating that in terms of affidavit dated 04.12.2004, the RR No.082710 is against Invoice No.W-34 dated 02.01.1979 as correct and shortage to the extent of 40.060 MT and damage of 15.440 MT are admissible as per joint assessment report dated 25.10.1980. This assessment was based on the four lines without accompanied by any discussion at all. It is not clear as to how the learned tribunal has arrived at the finding when no discussion has been made.
7] From perusal of the aforesaid judgment it appears that the learned tribunal did not decide as to whether the consignment was booked under RR No.082710 but thereafter, proceeded to pass a decree for Rs.2,13,317/- against the defendant presuming that the averment made in the claim stood revised.
8] Having gone through the records, this Court does not find any application to show that the original plaint filed by the plaintiff had been subsequently amended and/ or that any of the parties led any evidence to prove their respective case. The records produced by the learned tribunal and the argument put forward by the learned counsel for the parties disclose a very dismal state of affairs. It is true that under Section 18 of the Railway Claims Tribunal, 1987, the tribunal is entitled to pass a judgment on perusal of documents, representation and affidavits and after hearing such oral argument as may be advanced. By Clause-(1) of the same section it has been provided that the tribunal would not be bound by the procedure of the Code of Civil Procedure but it shall be guided by the principles of natural justice and subject to other provisions of the Act and MFA No.42 of 2007 7 the rules. It is also to be seen that by Clause-(3) of the same Section statute vested the same power on the Railway Claims Tribunal of a Civil Court under the Code of Civil Procedure in respect of various items including summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of documents and also of receiving evidence and affidavits. Providing power of Civil Court to Railway Claims Tribunal as, inter alia, for the aforesaid purpose is only indicative of the fact that the tribunal has to consider the evidence adduced by the parties for the purpose of arriving at a just decision. But Section 18(1) of the Railways Claim Tribunal, 1987 does not empower the Railway Claims Tribunal to pass judgment merely at the asking of the party and/ or to refuse the same without taking recourse to fundamental principle of judicial procedure. Undoubtedly, a claim before a Railway Claims Tribunal is a judicial proceeding and the tribunal has examined the jurisdiction vested on it by law. The Railway Claims Tribunal is also a judicial authority for deciding the claim against Indian Railway when an individual suffers from some civil consequences owing to negligence or any other reason. He is at liberty to make claim for damage and compensation against the Indian Railways. The Railway's Act, 1989 requires that a notice for the same has to be served within a period of six months from the date of cause of action under Section 106 and if the grievances are not redressed in that event he shall be at liberty to submit a claim before the statutory tribunal as provided under Section 3 of the Act.
9] Since the tribunal, constituted under Section 3 of the Act, is a judicial authority and it has been vested with the power and the authority to decide the claim for damage and compensation of an aggrieved party, it has to consider the claim on its merit. Merely because under Section 18(1) of the Act the tribunal has been exempted from provision of the Code of Civil Procedure, it does not mean that the tribunal shall not follow the fundamental principle of judicial procedure. This means, if a claim is made the respondent N.F Railway has to be provide adequate opportunity to the parties for giving reply. The respondent Railways has to be afforded with opportunity to place its evidence vis-à-vis a claim made by the private persons. Once such claim is made and the same is denied by the Indian Railways, it is incumbent upon the learned tribunal to frame specific MFA No.42 of 2007 8 issues and thereupon, put the parties to prove their respective case. Section 18(2) mandates that the tribunal shall decide every application on perusal of the documents, written representations and affidavits. Section 18(3) has vested power on the tribunal of a Civil Court of summoning and enforcing the attendance of witness, requiring the discovery and production of documents and/ or receiving evidence on affidavits. It is always advisable that the tribunal shall afford opportunity to the parties to prove their evidence in the form of affidavit and if, by such submission of affidavit and production of document it appears that summoning and enforcing the attendance of any witness is necessary, the tribunal shall be duty bound to exercise duty of a Civil Court vested under Section 18(3) of the Act. Once such evidence in form of affidavit is submitted by the parties and other side is of the opinion that cross-examining the deponent is necessary for adjudicating the matter in dispute in that event the tribunal may require to pass necessary orders under Section 18(3) of the Act.
10] Since, fundamental judicial procedure has not been followed by the learned tribunal in the present case, the issues framed by it could not be decided and the material issues have been left open. There is an affidavit filed on 04.07.2005 by the plaintiff with a view to making correction in the RR number but no attempt was made by the plaintiff to amend its plaint. It cannot be ignored that the proceeding was instituted in the year 1983 in the Court of regular Civil Court by presenting a plaint. The material fact disclosed therein was subsequently found to be incorrect. In that event the plaintiff was expected to file a proper application for amendment. The N.F. Railways also did not take the opportunity to file a proper written statement. Be that as it may, the impugned judgment and award passed by the learned tribunal does not appear to be based on materials available on record. It is not clear as to how the learned tribunal arrived at the finding that materials were booked by the plaintiff under RR No.082710. It is also not clear as to how the learned tribunal presumed a few loose sheets to be a part of railway claim register maintained by Steel Authority of India when no attempt has been made to prove the same. In short, there are no sufficient materials on record to decide the claim of the plaintiff even at the appellate stage. Having so situated, this Court is constrained to set aside the MFA No.42 of 2007 9 impugned judgment and award and to remand the matter to the learned tribunal for disposal afresh in terms of the guidelines given above. The impugned judgment and award is accordingly set aside and it is remanded to the learned tribunal. Since, it is a claim of 1983 the learned tribunal shall make endeavour to decide the same as expeditiously as possible, preferably within a period of 6 months from the date of receipt of records.
[11] No order as to costs.
[12] Send down the records immediately.
JUDGE sumita MFA No.42 of 2007