Allahabad High Court
Union Of India Thru G.M. Northern ... vs Jaypee Rewa Cement Thru Authorised ... on 27 January, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 712 of 2003 Appellant :- Union Of India Thru G.M. Northern Railway, New Delhi Respondent :- Jaypee Rewa Cement Thru Authorised Director S.K. Bhasin Counsel for Appellant :- Anil Srivastava,Ratnesh Kumar Rawat,S.P. Maurya Counsel for Respondent :- Harendra P. Srivastava Hon'ble Jaspreet Singh,J.
Heard Shri Ratnesh Kumar Rawat, learned counsel for the appellant. None has put in appearance on behalf of the respondent.
This matter has been listed peremptorily today, accordingly in absence of the respondent the appeal is being decided ex parte.
The instant appeal has been preferred under Section 23 of the Railway Claims Tribunal Act being aggrieved against the award dated 11.09.2003 passed by the Railway Claims Tribunal at Lucknow in Case No. OC 9700295 "Jaypee Rewa Cement Ltd. Vs. Union of India" whereby the claim petition of the respondent was allowed and a sum of Rs.2,25,156.00 alongwith 9% per annum has been awarded by the Tribunal.
The learned counsel for the appellant has attacked the aforesaid award dated 11.09.2003 primarily on two grounds:-
(i) It has been submitted that the respondent did not have the right to prefer the claim petition; inasmuch as the railway receipt was endorsed in favour of Mohan Lal who had taken the delivery of consignment and as such it was Mohan Lal who would be treated as the owner of the goods whereas the claim was preferred by M/s. Jaypee Rewa Cement Ltd, consequently no award could be passed in favour of the respondent and the issue decided by the tribunal in respect of the above controversy is erroneous;
(ii) It has also been submitted that the tribunal has failed to take note of Section 93 (a) which provides immunity to the Railway Act Administration from any losses provided the alleged loss is covered by the contingencies as enumerated in Section 93(a) to (i).
For the aforesaid two reasons, it has been submitted that the award is bad and is accordingly liable to set aside.
The Court has considered the submissions of the learned counsel for the appellant and also perused the record.
The respondent filed a claim petition before the Railway Claims Tribunal at Lucknow with the averments that a consignment comprising of 5262 bags of cement vide invoice no.8, railway receipt No.684684 dated 05.06.1992 was booked for delivery. The said subject consignment arrived at the destination station on 09.06.1992 and was unloaded from the wagons within free time. The free time has been specifically pleaded was upto 10.06.1992 during which the liability of the railway administration continues as a common career and and insurer of the goods. It was pleaded that on 10.06.1992, on account of rains the cement bags were damaged. It was also submitted that no tarpaulins were provided by the railway administration which led to the damage to the said consignment. It is in respect thereto that a claim amount of Rs.2,25,156.00 was filed before the tribunal.
The railway administration filed its written statement and as far as the fact regarding booking as well as reaching of the consignment at the destination station is concerned, the same is not disputed. it is also not disputed that on account of rain on 10.06.1992 the cement bags were damaged. However, a plea has been raised that the notice as required under Section 106 of the Railway Act 1989 has not been received or served on the railway administration. It has also been submitted that since the rainfall on 10.06.1992 was sudden and unforeseen, consequently they were covered under the exception provided in Section 93(a) of the Railway Act, 1989 under 'Act of God' and in view thereof the claim petition was resisted.
The tribunal on the pleadings of the parties framed five issues. While dealing with issue no.1, it took note that the claimant had filed an affidavit of Gulab Chand Misra indicating that the railway receipts was endorsed in favour of Mohan Lal to take the delivery of the consignment. It was also specifically stated in the affidavit that it was only for the purposes of taking delivery. However, there was no such endorsement for value or transfer of the consignment in his favour.
The aforesaid contentions of the respondent have been accepted by the railway administration; inasmuch as there was no contrary statement made nor any evidence filed to rebut the same despite an affidavit of Deepak Chakrovarti was filed on behalf railway administration. The tribunal also found that in the claim application it was specifically mentioned that the notice under Section 106 of the Railway Act was served on the Chief Commercial Manager (Claims), Northern Railways on 16.11.1992 claiming Rs.2, 25,156.00 as damages and this fact as well was neither disputed nor challenged by the railway administration.
Considering the fact that the cement bags were damaged on account of rain on 10.06.1992 which occurred from 8.00 AM to 8.35 AM and again from 11.00AM to 11.40 AM while the assessment report which was jointly signed by the representative of the appellant and respondent dated 12.06.1992 and that there was no adequate protection provided to take care of the cement consignment. The tribunal decided the issue no.3 in favour of the respondent and thereafter on the basis of the loss assessed a sum of Rs.2,25,156.00 has been awarded in favour of the respondent.
Considering the submissions of the learned counsel for the appellant and on perusal of the record it would indicate that as far as the affidavit filed by the respondent indicating that the railway receipt was endorsed in favour of Mohan Lal only for the the purpose of taking the delivery that by itself is not going to transfer the right in favour of Mohan Lal and at the same time does not denude the powers and the right of the respondent to institute the claim. This aspect of the matter has been clearly dealt with by the claims tribunal coupled with the fact that no evidence in rebuttal or contradicting the aforesaid stand has been filed by the railway administration and therefore the view taken by the railway claims tribunal does not suffer from any error and the first submission raised by the learned counsel for the appellant for the reasons as mentioned aforesaid fails.
As far as the defence of the railways relying upon section 93 (a) is concerned, it would be relevant to point out that rain in the month of June cannot be construed as an act of God; inasmuch as i.e. mansoon period which generally starts from 1st of June. In order to appreciate a defence under the Act of God, it must necessarily be pleaded and proved that the said occurrence could not have been foreseen by any prudent person and is so unusual that it is a freak occurrence. It will also be significant to note that the aforesaid plea regarding the act of God was a feeble defence; inasmuch as there has been no evidence led by the railway administration to strengthen or to prove the aforesaid plea.
Learned counsel for the appellant has relied upon a Co-ordinate Bench decision of this Court in FAFO No.490 of 2003 "Union of India Vs. U.P. Asbestos Ltd." decided on 29.04.2010 and "M/s. Remand Cement Works Vs. Union of India" in FAFO No.118 of 1997 decided on 07.02.2006. In both the aforesaid cases, there has been no discussion regarding the plea of Act Of God. The facts of the aforesaid two cases are entirely on a different factual matrix and as such the aforesaid two decisions do not in any manner help the learned counsel for the appellant.
In light of the aforesaid discussions, this Court finds that there is no merit in the appeal. Accordingly the same is dismissed. There shall be nor order as to costs. Any amount deposited by the appellant before this Court shall be remitted to the tribunal concerned to be released in favour of the claimant-respondent. The record of the tribunal shall be remitted to the tribunal concerned within a period of two weeks from today.
Order Date :- 27.1.2020 ank