Mahendra Kumar vs Union of India

This miscellaneous appeal under Section 23 of the Railway Claims Tribunal Act, 1987 has been filed assailing the order dated 03.09.1997

passed in O.A. No. 41/97 by the Railway Claims Tribunal Bench at Bhopal wherein the application for compensation on account of short

delivery/shortage and damages in case of eight consignments containing a variety of vegetables, have been disallowed.

It is appellant''s case that the appellant sent eight consignments through the railways, which reached the destination not only delayed but also in

damaged condition. The appellant, therefore, requested the Railway Authorities to assess the losses and grant the valid damage certificate but the

respondent failed to provide any certificate or make any endorsement in the delivery book regarding the loss. Therefore, appellant submitted claim

for compensation for the loss and damages stating that nine bags of lemon were booked in good condition whereas five bags did not reach the

destination weighing 70 kgs. Similarly, out of eight bags of french beans, seven bags were not delivered. Out of twenty two bags of ladies finger,

twelve bags were not delivered and 145 kgs. of bhindis (lady''s finger) were received in damaged and unfit condition. The learned Railway Claims

Tribunal, Bhopal by the order impugned disallowed the claim stating that the appellant is not entitled for any relief as in case of seven consignment,

the respondent/railways have proved that delivery was given to the appellant under clear signature and about the eight consignment, there is no

mention of the same in the notice under Section 106 of the Railways Act.

On behalf of the appellant, it is claimed that the appellant received short delivery and, therefore, he suffered the loss. The appellant requested to

grant assessment delivery report to the Railway Authorities, but the respondent repudiated requests on the ground that the consignment was

booked at the owner''s risks. Similarly, the appellant is not allowed to make any endorsement in the delivery book. The Railways Authorities were

approached for grant of assessment delivery report but as the same was not given Statutory notice under Section 106 of the Railway Act was

issued and, subsequently, claim for compensation of Rs.7,224/- was filled.

It is also claimed that the learned Tribunal committed grave error in deciding the issue No. 4. The respondent has not delivered the goods

completely and the documents and affidavit filed by the respondent has been believed, that the consignment has been received, is not correct. The

request of appellant to cross-examine the affidavit was not allowed and, therefore, the learned Tribunal did not apply its mind in deciding this issue.

It is also claimed that the learned Tribunal has not gone through the contents of the delivery book and error No. 296558 wherein it has been

mentioned at page 10 of the delivery book that the non-delivery of one katta remained due to the appellant. In the delivery book, there is no

mention of train number by which the remaining bundles arrived at nor the date of unloading is mentioned. At error No. 296097, the railways

administration wrongly given undelivered goods vide PWB No. 296079 which is totally wrong. The railway administration at error No. 327442

failed to show in the delivery book the date of unloading and also name of the train by which the goods arrived by the said consignment. Some of

the entries have been manipulated. As regarding error No. 326792, there is no signature of any person taking delivery on behalf of the appellant

nor there is mention of any date.

The learned Tribunal, therefore, committed grave error on relying on the books filed by the respondent/Railway Authorities. Therefore, it is

prayed to set aside the order dated 03.09.1997 and to award compensation with interest and cost.

Perused the record.

The learned Tribunal has held that on the basis of the evidence before him and in the circumstances, he has no hesitation in holding that delivery

was taken under clear signatures.

The documents produced does show that there is short of delivery and delivery was not made within time. At delivery book error No. 296558,

there is mention of non-delivery of one ''Katta.'' The affidavit of Awadesh Singh, Assistant Parcel Clerk, Parcel Office, Central Railway, Bhopal

shows that a consignment of lemon booked under P.W.B No. 296588 dated 05.04.1996 from Jalgaon to Bhopal. Out of 5 ''katta'' lemon, 4

''katta'' were delivered on 06.04.1996. Whereas one ''katta'' was delivered on 11.04.1996 which is delayed by five days.

Similarly, in the consignment book under P.W.B. No. 326792 dated 13.03.1996 from BSL to Bhopal, two bags of Gavarfalli were delivered.

In this connection it is made clear that one bag was delivered to the representative of the appellant on 15.03.1996 whereas the other bag was

delivered on 16.03.1996 which is delayed by two days.

According to Awadesh Singh, Assistant Parcel Clerk, Parcel Office, Central Railway, Bhopal, nine bags of bhindi (lady''s finger) were booked

under P.W.B No. 238548 dated 04.03.1996 from DXG to Bhopal. Eight bags were delivered on 05.03.1996 but one bag weighing 20 kgs was

not delivered and shortage certificate was issued by CPS, Bhopal on 29.12.1996.

The Parcel clerk also admits that out of five bags of bhindi (lady''s finger) booked under P.W.B. No. 238516 dated 02.03.1996 from DXG to

Bhopal was delivered to the representative of the appellant on 07.03.1996. Thus, there was delay of four days in delivering the goods.

These are the admitted facts which the learned Railway Tribunal failed to consider in the award dated 03.09.1997.

As no evidence is led with regard to the documents and the shortage of delivery, as has been claimed by the appellant. The above indicate

delay and non-delivery of goods which has been clearly admitted by Awadesh Singh. Admission is the best evidence. Therefore, it has been found

that (I) the delivery of one lemon bag was delayed by five days. (II) Delivery of Gavarfalli was made delayed by three days. (III) One bag of

lemon weighing 20 kgs was not delivered and shortage certificate was issued and (IV) five bags of bhindi (lady''s finger) was delivered four days

delayed.

20 kgs. bhindi (lady''s finger) @ Rs.15/- per kg. = Rs.300/-, was short delivered. Therefore, the appellant is entitled to receive Rupees.300/-

as compensation for non-delivery of the 20 kgs. of bhindi with interest @ 12% per annum from 05.03.1996.

One ''katta'' of lemon could not be delivered on 06.04.1996, which was subsequently, delivered on 07.04.1996 which is after five days. One

''katta'' containing 24 kgs @ 20 Rs./kg= Rupees 480/-. Therefore, the damage would be calculated as Rupees 480/- and interest @ 12 % from

06.04.1996.

One bag of Gavarfalli could not be delivered on 15.03.1996 but was delivered on 16.03.1996. Considering the delay in the transit, no claim

has been demanded so far as the Gavarfalli is concerned.

As regarding the bhindi (lady''s finger), five bags were delivered, four days delayed from DXG to Bhopal. The damages would be if calculated

as 50% would be one bag 20 kgs., four bags containing 80 kgs. in unfit condition. Therefore, Rupees 15/- Kgs. would amount to 80 kg i.e.

Rupees 1,200/-. 50% of Rs.1,200/- is Rupees 600/-. Appellant is entitled to receive 12% interest on this amount from 03.03.1996.

Therefore, the appeal is partly allowed. The appellant is entitled to receive compensation as described below.

(i) Rupees 480/- with interest @ 12% P.A from 06.04.1996.

(ii) No compensation so far as Gavarfalli is concerned.

(iii) Compensation of Rupees 300/- with interest @ 12 % P.A from 05.03.1996.

(iv) Compensation of Rs.600/- with interest @ 12% P.A from 03.03.1996.

The appellant is entitled to receive cost of the appeal. The appellant is also entitled to receive the counsel fee, if certified according to the

schedule.

Respondent will bear its own cost. Decree be drawn accordingly.