Union of India vs Indian Oil Corporation Ltd.

Rakesh Kumar Garg, J.—This judgment shall dispose of nine appeals i.e. F.A.O. Nos. 1766 to 1772 of 2010 and F.A.O. Nos. 4839 and 4840 of 2012, as all these appeals have arisen out of similar orders of the Railway Claims Tribunal passed in the disputes which have arisen between the parties on similar facts. However, for the convenience sake, facts are being taken from F.A.O. No. 1766 of 2010. The respondent-Indian Oil Corporation sought a claim for Rs. 4,47,564.81 from the appellant-railway administration due to non-delivery of one tank wagon No. SE96009 at I.O.C. Jammu Tawi containing L.D.O.. The consignment was booked under railway receipt No. 723571 dated 10.10.2003 ex. New Jalpaigudi to I.O.C. Jammu Tawi at railway risk. A notice dated 9.3.2004 was also given to the appellant for settlement of claim due to non-delivery of the wagon of the respondent. However, the claim of the respondent was not settled despite the fact that a non-delivery certificate was also issued by the appellant on 29.1.2004. Respondent further claimed interest, expenses, costs, application fee and other damages.

In the written statement filed on behalf of the appellant, various disputes were raised. It was asserted that no notice u/s 106 of the Railway Claims Tribunal Act, 1987 (for short, "the Act") was issued to the appellant. The loading of the alleged consignment which was allegedly containing L.D.O. was neither checked nor supervised by the Railway staff and the appellant was not liable to compensate the respondent because the consignor had loaded less quantity of L.D.O. in the wagon. It was further stated that the Railway was protected u/s 65 of the Railways Act. The consignment was loaded at owner''s risk - further railway was protected u/s 97 of the Railways Act. Moreover, the respondent had admitted in the meeting with the appellant that 373 wagons which were unauthorizedly decanted by it, are still due to Railways and in case the Tribunal comes to the conclusion that the alleged non-delivery was there, the said wagon load deserves to be adjusted towards one wagon out of above.

The respondent filed replication to say that no settlement in the present matter took place.

Based upon the pleadings of the parties, following issues were framed:--

Whether the present claim application has been filed by competent and duly authorized person?

Whether a valid and legal notice u/s 106 of the Railways Act has been served upon the respondent railways?

Whether the consignment in question was not delivered, as alleged?

Relief.

Thereafter, both the parties adduced evidence in support of their respective cases.

Under issue Nos. 1 and 2, it was held that the claim application was filed by a competent and duly authorized person and a valid legal notice u/s 106 of the Railways Act was served upon'' the appellant. Under issue No. 3, it was held that the consignment in question was not delivered by the appellant, as non-delivery of wagon No. SE 96009 was admitted. Moreover, the appellant had also issued non-delivery certificate of the said tank wagon. The Tribunal further found that the appellant cannot claim protection under Sections 65 and 97 of the Railways Act, as the Railway receipt No. 723571 dated 10.10.2003 booking the wagon was not issued at owner''s risk and moreover, the Railways had given a non-delivery certificate and offered one wagon equal to the claim of the respondent and that appellant was not entitled to adjustment as sought.

At this stage, it may be noticed that the only issue which remains to be discussed is whether the appellants are justified in seeking adjustment of the claim of the respondent against an unconnected tank wagon which was allegedly delivered to the respondent on 17.11.1992 by the appellant at I.O.C., Jammu. However, the said offer of the appellant was not accepted by the respondent on the ground that petroleum product tank wagons transported by Railway administration of oil companies belonged to the oil companies only and the Railway did not have the ownership right of the contents and therefore, non-delivered wagon could not be compensated by offering another wagon of I.O.C., having become unconnected while under transportation. Moreover, the non delivered wagon relating to Railway receipt dated 10.10.2003 cannot be adjusted against a tank wagon alleged to be delivered to the respondent-company on 17.11.1992, as there was no such record proving the delivery of such unconnected wagon.

Counsel for the appellant has referred to a document placed on record as Annexure A-3 with Appeal No. 4839, according to which, in a meeting of the Railway Task Force and the officials of the respondent-company, had agreed that the Railway had delivered 373 surplus unconnected tank wagons at various depots of the I.O.C. and therefore, the appellant was well within its right to ask for adjustment of one such unconnected tank wagon against the claim of the respondent in the instant case.

At this stage, it may also be noticed that the replacement wagon was delivered to I.O.C. Jammu Tavi in the year 1992 whereas non-delivered wagon dates October, 2003. There is no visible match-making between the two. Even by common understanding, compensation for future loss cannot be made good in advance by several years. It is not spelt out as to how the appellant can offer replacement wagon alleged to be delivered in 1992 for a claim which had arisen in 2003. It may further be noticed that the documents relied upon by the appellant to prove that there was a mutual understanding between the parties do not conclusively prove the aforesaid fact. A perusal of the aforesaid documents would show that it was only a step towards reconciliation of the accounts between the parties. However, nothing is on record to suggest that any such reconciliation was ever accepted by the respondent. The aforesaid document at the most can be said to be self-serving statements of the appellant and cannot be taken as admissions on the part of the respondent. Thus, the offered adjustment does not appear to have any reasonable worth and was rightly not considered by the Tribunal.

Faced with this, counsel for the appellant has vehemently argued that the present dispute between the parties could not have been entertained by the Railway Claims Tribunal in view of law laid down by Hon''ble the Supreme Court in the case of 1992 (61) ELT 3 (SC) and subsequent decision in the case of Oil and Natural Gas Commission and Another Vs. Collector of Central Excise, . According to the aforesaid judgment, no litigation was to be raised in Court or a Tribunal without the matter having been first examined under the instructions issued for resolving the dispute by mutual consultation.

However, learned counsel for the respondent has produced before this Court a judgment of Hon''ble the Supreme Court in the case of Electronics Corporation of India Ltd. Vs. Union of India (UOI) and Others, , wherein Hon''ble the Supreme Court has held that the mechanism provided in the aforesaid two judgments needs to be revisited and the guidelines/instructions issued by the Supreme Court in those two judgments have been recalled. Moreover, such an argument, as raised before this Court that in view of judgments of Hon''ble the Supreme Court in the cases of O.N.G.C. v. C.C.E. (supra), the Tribunal had no jurisdiction, was never raised before the Tribunal.

Counsel for the appellant could not dispute the aforesaid fact. In view of the aforesaid, the argument raised is without any merit.

No other argument has been raised. Thus this Court finds no merit in these appeals and the same are hereby dismissed.