Bombay High Court
M/S Hindustan Petroleum Corporation ... vs Union Of India on 13 February, 2014
Author: S.B. Shukre
Bench: S.B. Shukre
fa309.99
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
FIRST APPEAL No. 309 OF 1999
M/s Hindustan Petroleum Corporation Ltd.
(A Govt. of India Enterprises),
17th Jamshedji Tata Road (Mumbai),
through N.K. Nair,
Sr. Regional Manager,
constituted Attorney, H.P.C.L.
Regional Office, Nagpur. ....APPELLANT.
(Ori. Applicant)
VERSUS
Union of India,
through General Manager,
Central Railway, Mumbai. ....RESPONDENT
.
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Mr. M.W. Harsulkar Advocate for Appellant.
Mr. N.P. Lambat Advocate for the respondent.
------------------------------------
CORAM : S.B. SHUKRE, J.
DATED : F EBRUARY 13, 2014.
ORAL JUDGMENT :
This appeal is directed against the judgment and order passed on 15.4.1999 in OA No. 174/OA-1/RTC/Nagpur/97 by which Railway Claims Tribunal dismissed the application of the plaintiff claiming compensation from the railway administration/respondent for shortage in delivery of motor spirit intended ::: Downloaded on - 01/03/2014 00:10:38 ::: fa309.99 2 to be unloaded at Khapri . It was the contention of the appellant that it had booked a consignment of 27,020/- litres of motor spirit and it was loaded in tank wagon under railway receipt No. 27372 dated 9.10.1995 at its siding at Bajwa and it was intended to be delivered at Khapri. When tank wagon in question was placed for unloading on 14.10.1995 at Khapri, it was noticed that both the top and bottom seals were missing indicating shortage in the goods. Therefore, open delivery was demanded. It was granted and delivery was taken in the presence of the officials of railway administration. It was disclosed that there was a shortage of 801 litres of motor spirit. The appellant, therefore, claimed compensation for short delivery of the goods loaded by it for being consigned to Khapri. The claim was repudiated by the respondent and, therefore, an application claiming compensation came to be preferred before the Railway Claims Tribunal.
2. The respondent submitted that the loading of the said goods was not checked and supervised by the staff of the railway administration and, therefore, no responsibility for short delivery of the goods handed over to it could be placed upon the railway administration. The respondent submitted that the railway receipt bore the remarks such as "said to contain" and "loading not supervised by the railway staff" which clearly indicated that the railway administration did not accept as correct the quantity of motor spirit as shown in railway receipt as loaded at Bajwa and handed over to it for being delivered at Kahpri. It was thus submitted on behalf of the respondent that the application was liable to be rejected. He places his reliance upon the ratio of the judgment rendered in the case of Union of India ::: Downloaded on - 01/03/2014 00:10:38 ::: fa309.99 3 v. Jugal Kishore Khandelwal - AIR 1988 Ori. 113.
3. After considering the material available on record and hearing both the sides, the learned Technical Member of the Tribunal recorded a finding that even though shortage receipt was issued by the railway administration at the delivery station, it did not amount to acceptance of shortage in delivery by railway administration. It was a mere statement of fact of what quantity was delivered at the delivery station and since no evidence was brought on record by the appellant to prove the fact that certain quantity of motor spirit was placed in the custody of the respondent for being its transported to Khapri, as required under proviso to Section 65 of the Railways Act, 1989, the claim for compensation was liable to be dismissed. Accordingly, the learned Technical Member by his order dated 15.4.1999 dismissed the application. Not satisfied with this order, the appellant is before this Court in First Appeal.
4. I have heard Shri Harsulkar, learned counsel for the appellant, and Shri Lambat, learned counsel for the respondent. I have carefully gone through the impugned order and also the record of the Application before the Railway Claims Tribunal. The only point that arises for my determination is :
"Whether the Railway Claims Tribunal committed serious error in not allowing the claim for compensation of the appellant?"
5. Shri Harsulkar, learned counsel for the appellant has submitted that learned counsel for respondent has wrongly placed reliance on the decision in the case of Union of India v. Jugal Kishore Khandelwal (supra) wherein the learned ::: Downloaded on - 01/03/2014 00:10:38 ::: fa309.99 4 Single Judge of that High Court has held that the shortage certificate given by the railway administration at the delivery station does not amount to admission of actual shortage in delivery of the loaded goods. He submits that it was the duty of the railway staff to check and supervise the loading of the goods in the tank wagon, and if they had not done so, the blame for the same could not be put on the head of the appellant. He has invited my attention to the order passed on 6.11.1998 in the case being Application No. 118/OAI/RCT/NGP/94 by the judicial member of the Railway Claims Tribunal in similar set of facts and between the same parties, and argued that once the railway administration accepted the decision given in the said case, the railway administration cannot take the benefit of the remarks "said to contain" made in the railway receipt after having accepted the goods for being delivered to another destination. He submits that now the respondent is estopped from taking a stand that since the loading was not supervised by the railway staff at the loading station, the railway administration was under no liability to pay any compensation for the shortage in delivery of the loaded goods.
6. The case of Union of India v. Jugal Kishore Khandelwal, supra, has been based on the fact that the goods were delivered under certain conditions written on the railway receipt. First condition was denoted by the remark "said to contain"
certain quantity of material. The remark "said to contain" has been interpreted by the learned Single Judge of Orissa High Court as not constituting any acceptance on the part of the railway administration that the quantity shown in the railway receipt was actually received for transportation to the destination point. The second ::: Downloaded on - 01/03/2014 00:10:38 ::: fa309.99 5 condition was indicated by another remark to the effect that "loading not supervised" by the railway staff and this remark together with the former remark has been interpreted by the learned Single Judge of Orissa High Court to be constituting no admission on the part of railway administration of acceptance of that much quantity of goods, as has been shown in the railway receipt, for transportation to the destination point.
7. In the instant case also, the facts are similar. If we look at the railway receipt vide Ex. R/1, it can be seen that this receipt contains both the said remarks.
The remark "said to contain" appears in abbreviated form as "S/C". So far as the latter remark is concerned, it appears in terms "loading not supervised by the staff".
Learned counsel for the appellant submits that the abbreviation "S/C" cannot be understood by a person who has not worked any time with the railways and the appellant being not conversant with the practice of railway administration, was not expected to know the meaning and implication of the remark "S/C", and, therefore, the respondent cannot be allowed to take advantage of this remark. I am not inclined to accept this argument for the reason that when any additional remarks are made on a railway receipt, and if those remarks are illegible or could not be understood by the consignor, the consignor must seek clarification from the concerned staff of the railway, and if he does not do so, he must suffer for the inaction shown by him. Once the railway receipt is accepted by the consignor without any protest, the consignor cannot be allowed to take the defence that he did not understand the contents of the railway receipt and in this case the appellant ::: Downloaded on - 01/03/2014 00:10:38 ::: fa309.99 6 accepted railway receipt with both the said remarks without any protest. Both the said remarks, "said to contain" and "loading not supervised by the staff" clearly indicated that the railway administration did not accept as correct the quantity of motor spirit shown to have been loaded in the tank wagon at Bajwa and appearing in the railway receipt. The appellant could have at that time insisted upon the railway staff to check the quantity of motor spirit loaded in the wagon at the time of handing over of the wagon to railways for its transportation to the destination point. If the railway staff had refused to budge, the railway receipt could have been accepted only under protest by the appellant. This has not been done by the appellant, rather the appellant appears to have accepted the remark that loading was said to contain certain quantity and was done without any supervision by the staff and, in turn, also accepted the risk that was inherently involved in handing over of the tank wagon to the railway staff for being its transported to the destination point at Khapri. These facts are similar to the facts of the aforesaid case of Union of India v. Jugal Kishore Khandelwal. Therefore, the view expressed therein by the learned Single Judge of Orissa High Court that these remarks indicated that there was no acceptance on the part of the railways of the quantity of goods delivered to it for carriage, commends itself to me and can be applied here also. Learned Member of the Tribunal, therefore, has committed no error in recording a finding that appellant failed to prove that the motor spirit delivered to it by railway administration at Khapri was in quantity shorter than what was handed over by the appellant to railways at Bajwa.
::: Downloaded on - 01/03/2014 00:10:38 :::fa309.99 7
8. The learned Member has pressed into service the proviso to Section 65 of the Indian Railways Act, 1989 for rejecting the claim of appellant and rightly so. It lays down that in case consignment in wagon-load is not checked by an authorised railway servant, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight stated therein, shall lie on the consignor, the consignee or the endorsee. In this case, such statement as required by the said proviso has already been found by me to be made in the railway receipt. Therefore, burden to prove the weight stated in the railway receipt lay upon the consignor, i.e. the appellant in this case and not the respondent. The appellant, however, did not discharge it by adducing necessary evidence and, therefore, there was no way the claim application could have been granted by the Tribunal.
9. So far as the decision given by the learned Judicial Member on 6.11.1998 in the case 118/OAI/RCT/NGP/94 is concerned, which has been relied upon by the appellant, one can very well see, upon perusal of the entire judgment, that in that case there was only one remark which was to the effect "said to contain" and that the case did not have any other remark "loading not supervised by the staff", which is borne on the railway receipt involved in this case. Therefore, one can say that the facts of that case are not similar to the facts of this case, and as such, no question of acquiescence in this decision by the respondent would arise. Further, it appears that said judgment does not properly take into account the impact of proviso to Section 65 of the Railways Act, 1989, which shifts the burden of proving weight of the consignment upon the consignor, in case it is not checked by railway staff authorised ::: Downloaded on - 01/03/2014 00:10:38 ::: fa309.99 8 in that behalf and statement to that effect is made on the railway receipt on the over all claim of the appellant in that case. Such a judgment, therefore, should not prevent the respondent from repudiating claim, in accordance with law. I, therefore, find no substance in the argument of learned counsel for the appellant made in this regard.
10. Learned counsel for respondent has also placed reliance upon the decision in Union of India v. Roop Narayan reported in AIR 1997 Raj. 123 to support his argument that since there was no acceptance on the part of the railway administration of the quantity of goods loaded at loading point, the railway administration was not liable for damages on account of any shortage in delivery at destination point. In the said case, there were various remarks incorporated in the railway receipt, the relevant of which were "said to contain" and "SWA" indicating sender's weight was accepted for the purpose of calculation of freight at the forwarding station. Interpreting these remarks, the learned Judge of Rajasthan High Court held that there was no admission on the part of the railways that the articles in number, as mentioned in the railway receipt, had in fact been loaded.
This judgment, in my view, certainly supports the case of the respondent herein.
11. The learned Technical Member has considered the remarks in the railway receipt and found that because of those remarks, there was no acceptance on the part of the railways about the quantity of the goods loaded in the tank wagon and shown in the railway receipt. In the light of the discussion made, I do not think that these findings are erroneous either in law or on facts. I find no merit in this appeal.
::: Downloaded on - 01/03/2014 00:10:38 :::fa309.99 9 The point is accordingly answered as in the negative. The appeal, therefore, deserves to be dismissed.
12. The appeal stands dismissed with costs.
JUDGE /TA/ ::: Downloaded on - 01/03/2014 00:10:38 :::