Gauhati High Court
Page No.# 1/12 vs M/S Bajaj Hindusthan Ltd on 9 June, 2025
Page No.# 1/12
GAHC010023992015
2025:GAU-AS:7506
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MFA/63/2015
THE UNION OF INDIA and ANR
REPRESENTED BY THE GENERAL MANAGER, N.E. RAILWAY, GORAKPUR
UP and ANOTHER
2: THE DIVISIONAL RAILWAY MANAGER
N.E. RAILWAY
LUCKNOW U
VERSUS
M/S BAJAJ HINDUSTHAN LTD
BAJAJ BHAWAN, JAMNALAL BAJAJ MARG, 226 NARIMAN POINT,
MUMBAI-21
Advocate for the Petitioner : MS.U CHAKRABORTY, MS.M CHATTERJEE
Advocate for the Respondent : MS.M SHARMA, MR.K P MAHESWARI ,MR.A GOYAL
BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND JUDGEMENT AND ORDER (CAV) Date : 09-06-2025 Heard learned Special Senior Railway Counsel Ms. U. Chakraborty for the appellant and learned counsel Ms. M. Sharma for the respondent.
Page No.# 2/12
2. This appeal is filed under Section 23 of the Railway Claims Tribunal Act, 1987 against the judgment and order dated 26.06.2015 passed by the Railway Claims Tribunal, Guwahati Bench in connection with Claim Application No. 0A. - III-38/2010 (Old), OA- III/GHY/2010/0025 (New).
3. The respondent booked a consignment of sugar under train load condition on 20.09.2008 under Invoice No. 23 & 24 RR 391030 and 391031 from Paliakalan to Gonda Dump. The Railway supplied 71 MG wagons for loading sugar at Paliakalan Booking Station. Out of 71 MG wagaon, 35 MG wagons arrived at Gonda Dump and the remaining 36 wagons remained stranded at Paliakalan Booking Station due to deluge caused by heavy rain. Owing to this situation, the respondent requested the Railways to allow movement of 35 MG wagaons by forming 20 BG wagons at train load under telescopic rate benefit and refund the over-charges of Rs.4,88,905/- (Rupees Four Lacs Eight Thousand Nine Hundred and Five) only along with litigation costs and interest.
4. The appellant i.e. the Railway authorities refuted the claim of the respondent on the ground that 36 wagons which were stranded at Paliakalan could not be moved owing to the heavy rainfall and the destruction caused on the Railway Track and this fact was admitted by the respondent also. The Railways further opined that if the consignment consists of less than 38 BCN wagons, the same would be calculated as wagon load rate and under such circumstances, the respondent cannot claim the benefit of train load class rate and telescopic benefit. The Railways contended that they are protected under Section 93 (a) and (1) of the Railways Act, 1989 (the Act of 1989 for short).
5. The order is impugned on the ground that the learned Railway Claims Tribunal Page No.# 3/12 (hereinafter referred to as the RCT for short) misconstrued and misinterpreted the law relating to documents and evidence as well as the provision of Section 106(3) read with Section 192 and 108 of the Act of 1989 and Rule 7(3) of the Railway Claims Tribunal (Procedure) Rules, 1989 (the Rules for short) as well as the provisions of Clause 3(a), 4(i) & 4(vii) of N.E. Railway's Rates Circular No. 43 of 2008 (Circular 43 for short) and thereby committed manifest error.
6. The claim application was filed by Mr. Puroshattam Runthala as the constituent attorney of M/S Bajaj Hindusthan Ltd. by filing an affidavit dated 06.03.2014 which was brought on record by the Railways before the RCT.
7. Rule 7(3) of the Rules says that "in case a claim application is filed by an agent, it shall be accompanied by a document authorizing him to act as such. It is averred that the attorney failed to bring on record any such authorization to establish his authority and as such, the claim preferred by the said authority for M/S Bajaj Hindusthan Ltd. cannot be termed as claim from the side of the applicant and was thus not maintainable.
8. It is submitted that the notice under Section 106 (3) of the Act of 1989 is to be served upon the Railway Administration to be eligible for claim for refund of freight over chage, if any. Here, the Railway Adminstration as per Section 2 (32) of the Act of 1989 is the General Manager, N.E. Railway, but the respondent failed to show any notice served upon the General Manager and the applicant is not entitled to any refund of freight overcharges in violation of Section 106 (3) read with Section 192 of the Act of 1989.
9. It is contended that the RCT has erred in law as well as in facts as the Tribunal did not consider the evidence-on-record and failed to consider the record relating to Page No.# 4/12 authenticity/identity of the applicant, purportedly to have been issued by the consignor/consignee, M/S Bajaj Hindusthan Limited for filing the claim petition before the learned RCT.
10. It is further contended that the learned Tribunal has failed to take into consideration that on the basis of the affidavit executed by Mr. Purushattam Runthala, constituent attorney of M/S Bajaj Hindusthan Ltd., he has no right or authority either to file such claim application on behalf of the applicant nor to sign any vakalatnama on behalf of the applicant.
11. It is further contended that the tribunal has failed to consider the documents filed by the Railways in the written reply before passing the judgment and order dated 26.06.2015.
12. It was not justified by the learned Tribunal if the notice in question was served upon the Railways under any authority as provided vide Railway Board's Circular dated 18.11.2002 and 22.11.2007.
13. The Tribunal further laid emphasis on the time of issuance of notice but not on the validity of the notice. In absence of rightful claim against the proper and appropriate Railway authority i.e. the General Manager, NE Railway and not the Chief Commercial Manager (Refund), no such claim can be entertained.
14. It is submitted that the applicant has no locus standi to file the claim application in absence of proper notice under Section 192 of the Act of 1989.
15. It is contended that while deciding the issue No. 2, learned Tribunal has failed to take into consideration that all the consignments of sugar at originating booking, station Paliakala (MG station) for Gonda BG dump had been made by the applicant and accordingly, 71 wagons were placed out of which 35 MG wagons were loaded from Palia Kalan to Gonda Page No.# 5/12 dump on 17.09.2008 and RR No. 23/391030 dated 17.09.2008 was issued at the normal tariff rate and the consignments of these wagons were dispatched to Gonda BG dump. The remaining 36 wagons were loaded on 20.09.2008, but on the same day i.e. on 20.09.2008, the Railway track was closed due to breach of Railway lines at three places between Paliakala and Dudhwa Railway station owing to deluge. Railway administration waited and tried to open the closed railway track upto 25.09.2008 but failed. As a result, on the order of COM/Gorakhpur, remaining 36 MG wagons at Paliakala on 25.09.2008 at 22.00 hours communicated through Controller, Lucknow were ordered to be unloaded. However, the said 35 MG wagons which were equivalent to 20 BG wagons were booked on 26.09.2008 on the request of the respondent/applicant vide letter dated 25.09.2008 addressed to DRM, Lucknow and as such, the said 35 MG wagons were allowed to move from Gonda BG dump to Dimapur.
16. It is contended that the respondent failed to fulfill the terms and conditions as required under the railway rate circular No. 43/2008.
17. In fact, the Railway administration tried to dispatch the remaining consignment of 36 wagons from Paliakala to Gonda, BG Dump in order to club the previous consignment of 35 wagons with the said 36 wagons, but it was not possible, and on 26.09.2008, the respondent re-booked the 35 MG wagons/20 BG wagons and the Railways correctly booked the consignments. from Gonda Dump to Dimapur on wagon load consignment giving the telescopic rate benefit.
18. The responsibility cannot be fastened upon the Railways and the appellants are protected under Section 93(a)(i)(ii) of the Act of 1989. The respondent did not make any declaration under clause 4(i) of the Railways rate circular No. 43/2008 on the forwarding note Page No.# 6/12 tender to modify the gauge point (Gonda dump), and the consignment offered for booking from break of gauge point were received from the originating point. No written acceptance/undertaking was furnished by the respondent before availing the facility of telescopic rates for the year 2008-2009, as required under Clause 4(b)(vii) of the railways circular number 43/2008. In this aspect, the Railways are protected under Section 93(f) of the Act of 1989. Thus, the respondent is not entitled to telescopic rate facility. The respondent has never requested the Railway administration to work out the freight at Gonda as per rates circular in question, and the objection was raised only in respect of not calculating the freight as per "train load", instead of "wagon load."
19. It is also contended that the claim for refund of freight is an exorbitant amount without any basis. The RCT has thus committed a manifest error by allowing the telescopic rate facility to the respondent. It is further contended that, as per Clause 3 of the Railway's rates circular No. 43/2008, the party will be given the benefit of telescopic rates on continuous distance basis, for the commodities rebooked from break of gauge point. Further, as per Clause 3(a) of the Railway's rates circular No. of 43/2008, the rebooking will be worked out at Gonda station by deducting the freight rate leviable up to break of gauge point (Dump) on the basis of telescopic rates from the originating station to the ultimate destination.
20. In the instant case, the respondent never requested Railway authorities to work out the freight at Gonda as per rates circular. Thus the claim of the respondent to refund freight overcharge as per rates circular is not valid, as the claim is in contrary to the mandatory provisions of Clause 4(i)(d)(vii) of the rates circular No. 43/2008. It is also suggested that the respondent tendered forwarding note at Paliakala against the above consignments, of sugar, clarifying the MG/BG wagon load for Gonda. In such factual position, further granting train Page No.# 7/12 load as well as telescopic rates on train load does not arise, though the consignment were, further transshipped from MG to BG at Gonda dump station, with further forwarding note wherein, no declaration was made in this regard. Therefore, the compensation with 6% p.a., was awarded vide order dated 26.06.2015, in violation of section 108 and 110 of the Act of 1989.
21. It is further averred that the learned Tribunal did not consider the documents filed by the Railways in the written reply. It is further submitted that the learned RCT has also failed to appreciate that no application before the claim Tribunal or any legal proceeding shall lie against the Railway administration on the ground that the consignee or the endorsee was not legally entitled to receive such compensation, as per provisions of Section 108(i) of the Act of 1989, rendering the impugned decision null and void as it was passed without jurisdiction.
22. The appellant has thus prayed to set aside the impugned order dated 26.06.2015, in connection with the aforementioned case.
23. Per contra, it is submitted by the learned counsel for the respondent that the sugar consignment was transported from Palliakalan to two-point destination i.e. NGC and Dimapur via Gonda Dump under "Trainload Class Rate 110" whose freight is cheaper than the "Wagon Class Rate150". This 35 MG wagons and 36 MG wagons were supposed to be moved together as BG wagons to destination NGC and Dimapur but out of 71 MG wagons, only 35 MG wagons arrived at Gonda Dump while 36 wagons remained stranded as mentioned above.
24. The respondent vide letter dated 25.09.2008 addressed his problems to the DRM, N.E. Railway about the disconnected MG Railway Track owning to heavy rainfall and requested for further permission for transshipment of 35 MG wagons to BG wagons and to consider the Page No.# 8/12 same as mini rake for Dimapur under train load class as special case since these 35 MG wagons had already reached Gonda Dump.
25. It is further averred that an order for unloading goods from 35 MG wagons was passed and transshipped in BG wagons vide memo dated 25.09.2008 and accordingly invoice No. 1 to 20 bearing RR Nos. 953269 to 953288 dated 26.09.2008 was prepared in terms of the Rate Circular No. 43 of 2008, but the Railway charged 'wagon load class rate 150' instead of 'trainload class rate 110', which is erroneous in terms of RC No. 43/2008.
26. On the prayer of respondent through the letter dated 25.09.2008, the Railway officials of Gonda Dump decided to unload the goods and booked the goods into BG wagaons under the RC No. 43/2008, but had illegally charged wagon load class rate 150. On 29.09.2008, the respondent forwarded a letter to the Sr. DCM, N.E. Railway, Lucknow Division and sought refund of Rs.4,88,905/- for wrong calculation of freight which was charged under 'wagon load class rate 150' instead of 'train load class rate 110'. Accordingly, the Sr. DCM had addressed the grievances of the respondent and held that the respondent's claim is maintainable and referred the matter to the CCM, N.E. Railway, Gorakhpur to pass necessary orders for refund. However, GM/Commercial vide order dated 02.02.2009 repudiated the respondent's claim stating that the conditions for fulfilling trainload was not complied by the respondent and therefore, the claim to refund Rs.4,88,905/- (Rupees Four Lacs Eighty Eight Thousand Nine Hundred and Five) was rejected. The respondent thereafter issued a letter dated 04.02.2009 to G.M. N.E. Railways, Gorakhpur followed by advocate's notice dated 10.04.2010 but this notice was not entertained. Lastly, the respondent was impelled to file the claim petition before the RCT under OA No.-III-38/2010.
Page No.# 9/12
27. It is contended that the Railways are not protected under Section 93(a) of the Act of 1989 as this Section is applicable solely in cases of loss of goods, damage, deterioration and non-delivery of goods but not in the case where excess freight was charged by the Railways. The plea of Act of God will be applicable only when the respondent claimed for compensation of loss of goods before the Railways and not for excessive freight charges.
28. I have considered the appellant's case and the rebuttal by the respondent. I have also considered the submissions at the bar with circumspection. The argument relating to no authorization under Rule 7(3) of the Rules of 1989 holds no water.
29. The Lower Court Record reveals that there is no violation of Rules of 1989.
30. The argument of the learned counsel for the appellant relating to failure of notice being issued to GM as per Section 2(32) of the Act of 1989 and violation of Section 106 of the Act also holds no water. The Railway administration has been clearly described under Section 2(32) of the Act of 1989. The LCR reveals copies of notices served upon the GM as well as the DRM. The argument on behalf of the appellant that notice under Section 106 of the Act of 1989 in violation of Section 192 of the Act of 1989 has also been rebutted by the respondent. The protection under Section 93 (a) of the Act, has also been rebutted. It has been submitted by the learned counsel for the respondent that the respondent has not come forward for damages owing to deluge but the respondent has claimed for compensation as they have been charged excessive freight charges by the Railways and thus, the plea of protection on the ground of Act of God is not applicable in the instant case.
31. I find force in the argument on behalf of the respondent. Furthermore, it has also been admitted by the Railways through their written statement filed before the Tribunal about the Page No.# 10/12 petitioner's prayer for mini rake which has however ingeniously skipped.
32. It has been held by the learned Tribunal (RCT) that the respondents have submitted a letter to the Sr. DCM, N.E. Railway, Lucknow on 29.09.2008 and the copies of the same was submitted to CCM, N.E. Railway, Gorakhpur and DRM, N.E. Railway, Lucknow. Vide letter dated 29.09.2008 bearing No. C/387/OPT/05/08, the matter was forwarded to the CCM, N.E. Railway, Gorakhpur. The Office of GM (Commercial), N.E. Railway however rejected the respondent's claim vide Railway letter dated 02.02.2009. It was thereby held that the notices were duly issued as per proper procedure.
33. It was also held by the learned Tribunal that the applicant loaded 71 MG wagons on 20.09.2008 from EX. Paliakalan to Gonda Jn (DUMP) under train load class in terms of NE Railway Rates circular No. 43 of 2008, effective from 01.04.2008 to 31.03.2009 for two-point BG destination NGC (New Guwahati) and DMV (Dimapur). It is clear from the documents that out of 71 MG wagons 35 MG wagaons arrived at Gonda Jn (DUMP) and the remaining 36 MG wagons got stranded at the booking station Paliakaln owing to heavy rainfall and adverse climatic situations, which disrupted the MG rail track between Paliakalan to Gonda Jn. (Dump).
34. On 27.09.2008, the officials of Paliakalan (Goods) informed that COM at Gorakhpur who ordered them to unload 36 stranded wagons at Paliakalan vide Railway message dated 27.09.2008. The Railways unloaded the 36 MG sugar wagons from Paliakalan wherefrom the goods were originally booked.
35. It has been held by the Tribunal that the documents were scrutinized and it was found that the respondent vide their letter dated 25.09.2008 requested the DRM, N.E. Railway to Page No.# 11/12 allow movement of 35 MG wagons from Gonda Dump by forming 20 BG wagon allowing train load rate of freight under telescopic rate benefit for destination DMV (Dimapur). The documents also reveal that at Gonda Jn (Dump), 20 BG wagons are booked and RRs were issued from Gonda Jn (Dump) to Dimapur (DMV) under Invoice No. 1 to 20, RR No. - 953269 to 953288 dated 26.09.2008 showing "wagon load" class rate. As the Railways did not allow telescopic rate benefit in violation of the N.E. Railway Rate Circular No. 43 of 2008, which was effective from 01.04.2008 to 31.03.2009 and which were duly marked on the RRs., the impugned order was passed by the RCT.
36. I have also scrutinized the LCR and the Circular 43 of 2008.
37. I have considered the submissions that the RRs remarks clearly reveal the rates can be taken into consideration. It is manifestly clear from the remarks on the RRs that if the goods were originally accepted for booking under trainload condition vide Gonda Jn (Dump), the applicant is entitled to the benefit of trainload and telescopic rate right from the original booking destinations MG to BG destination. The appellant cannot shirk away from the responsibility by submitting about the nitty-grities of the maintainability by the petitioner, who is not a power of attorney holder or of service of notice to the DRM and not to the CCM.
38. Considering the hierarchy of the offices of the Railway authorities, it is apparent that the notices were duly served and the copies were also served to the authorities. The appellants cannot submit circulars and notices which are not of the relevant period and which were not within the knowledge of the respondent to shirk away from the responsibilities of paying back the overcharges of freight.
39. In the wake of the foregoing discussions, it is thereby held that the decision of the Page No.# 12/12 Tribunal is not required to be interfered with. This is not a case where the Railways are protected under Section 93(a) of the Act of 1989. Sound reasonings have been assigned while deciding this case. It is apparent that higher charges have been imposed on the respondent, who is entitled to pay the freight charges under trainload class by allowing telescopic benefit.
40. This appeal is hereby dismissed as this appeal is devoid of merits. The judgment and order dated 26.06.2015 in connection with Claim Application No. 0A. - III-38/2010 (Old), OA- III/GHY/2010/0025 (New), is hereby upheld. The appellant is directed to abide by the terms and conditions of the award within 90 days from the date of receipt of certified copy of this order.
41. Send back the LCR.
JUDGE Comparing Assistant