Dismissed

Punit Kumar Jalan v. the Union of India

Patna HC1 Oct 2013MA/861/2011

Case brief

AI extract

What is this about?

The High Court dismissed appeals challenging the Railway Claims Tribunal's rejection of compensation claims for short delivery of iodized salt consignments. The court upheld the Tribunal's decision, noting the absence of proof regarding supervised loading, tampering, and negligence by the railway. Appeals were rejected as the claims were filed under owner's risk rates without sufficient evidence o

What did the court decide?

The appeals were dismissed, records were ordered returned to the Railway Claims Tribunal without any order as to costs.

Punit Kumar Jalan Vs the Union of India — Contract and Commercial Disputes | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.855 of 2011

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====================================================== Binod Kumar Jalan, S/O Late Madan Lal Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada ( Bihar). .... Applicant .... Appellant/s Versus The Union Of India through G M, Eastern Railay at Kolkata. .... Respondent .... Respondent/s ====================================================== with Miscellaneous Appeal No.857 of 2011 ====================================================== Binod Kumar Jalan, S/O Late Madan Lal Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada ( Bihar ). .... Applicant .... Appellant/s Versus The Union of India through G M, Eastern Railway at Kolkata. .... Respondent .... Respondent/s ====================================================== with Miscellaneous Appeal No.859 of 2011 ====================================================== Punit Kumar Jalan, S/O Binod Kumar Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada ( Bihar). .... Applicant .... Appellant/s Versus The Union of India through G M, Eastern Railway at Kolkata. .... Respondent .... Respondent/s ====================================================== with Miscellaneous Appeal No.860 of 2011 ====================================================== Punit Kumar Jalan, S/O Binod Kumar Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada (Bihar). .... Applicant .... Appellant/s Versus The Union of India through G M, Eastern Railway at Kolkata. .... Respondent .... Respondent/s ====================================================== with Miscellaneous Appeal No.861 of 2011 ====================================================== Punit Kumar Jalan, S/O Binod Kumar Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada (Bihar). .... Applicant .... Appellant/s Versus The Union of India through G M, Eastern Railway at Kolkata. .... Respondent.... Respondent/s ======================================================

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with

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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Miscellaneous Appeal No.862 of 2011

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====================================================== Punit Kumar Jalan, S/O Binod Kumar Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada (Bihar). .... Applicant .... Appellant/s Versus The Union of India through G M, Eastern Railway at Kolkata. .... Respondent .... Respondent/s ====================================================== with Miscellaneous Appeal No.863 of 2011 ====================================================== Punit Kumar Jalan, S/O Binod Kumar Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada (Bihar). .... Applicant .... Appellant/s Versus The Union of India through G M, Eastern Railway at Kolkata. .... .... Respondent/s ====================================================== with Miscellaneous Appeal No.864 of 2011 ====================================================== Punit Kumar Jalan, S/O Binod Kumar Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada (Bihar). .... Applicant .... Appellant/s Versus The Union of India through G M, Eastern Railway at Kolkata. .... Respondent………Respondent/s ====================================================== with Miscellaneous Appeal No.865 of 2011 ====================================================== Binod Kumar Jalan, S/O Late Madan Lal Jalan, R/O Mohalla & P.S. Warsaliganj, District - Nawada (Bihar). .... Applicant .... Appellant/s Versus The Union of India through G M, Eastern Railway at Kolkata. .... Respondent .... Respondent/s ====================================================== Appearance : (In MA No.855 of 2011) For the Appellant/s : Mr. Ramakant Yadav For the Respondent/s : Mr. Anil Singh (In MA No.857 of 2011) For the Appellant/s : Mr. Ramakant Yadav For the Respondent/s : Mr. Anil Singh (In MA No.859 of 2011) For the Appellant/s : Mr. Ramakant Yadav For the Respondent/s : Mr. Anil Singh (In MA No.860 of 2011) For the Appellant/s : Mr. Ramakant Yadav

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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For the Respondent/s : Mr. Anil Singh (In MA No.861 of 2011) For the Appellant/s : Mr. Ramakant Yadav For the Respondent/s : Mr. Anil Singh (In MA No.862 of 2011) For the Appellant/s : Mr. Ramakant Yadav For the Respondent/s : Mr. Anil Singh (In MA No.863 of 2011) For the Appellant/s : Mr. Ramakant Yadav For the Respondent/s : Mr. Anil Singh (In MA No.864 of 2011) For the Appellant/s : Mr. Ramakant Yadav For the Respondent/s : Mr. Anil Singh (In MA No.865 of 2011) For the Appellant/s : Mr. Ramakant Yadav For the Respondent/s : Mr. Anil Singh

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====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN C.A.V. ORDER

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9 01-10-2013 All these appeals raising common questions of law and facts have been taken up together with the consent of the parties with a view to their final disposal.

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Mr. Pramod Singh along with Mr. Ramakant Yadav, learned counsel have appeared for the appellant in each of the appeals while the Union of India in its Ministry of Railways has been represented by Mr. Anil Singh.

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All the appeals are within time except for M.A. No.865 of 2011 which is accompanied with I.A. No.7471 of 2011 filed under section 5 of the limitation Act, praying for condonation of delay.

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It is stated that due to lack of communication regarding the judgment and order that the appellant was not aware of the same and that there is no deliberate laches on the part of the appellant in pursuing

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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his remedy.

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I have heard learned counsel for the parties on the prayer made for condonation of delay and upon being satisfied by the reasons assigned, the delay of 2 months 28 days occasioned in filing M.A. No.865 of 2011 is condoned.

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I.A. No.7471 2011 is allowed.

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Re: M.A. No.855 of 2011 & analogous appeals :

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I have heard learned counsel for the parties in each of the appeals and as stated since all these appeals raise common issues of law and facts hence they are being disposed of by a common order.

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The appellants are traders engaged in the business of salt running under the different trade names as detailed in chart given hereinbelow and having their office and works at Warsaliganj, districtNawada. In the course of their business the appellants purchased iodized salt packed in bags from different manufacturers of iodized salt having their office and works at Nawacity, Nagaur in the State of Rajasthan. The consignments of iodized salt packed in bags were booked for carriage in rail wagons from Nawacity to Nawada in the State of Bihar with the respondent-Railways and railway receipts were issued.

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It is the case of the appellants that on the arrival of each of the consignment at Nawada, it was found short. The appellant after

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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serving notice on the respondent under section 106 of the Railways Act, 1989 (hereinafter referred to as „the Act‟) set up claim cases relatable to each of the consignment under section 13(1) (a) (i) read with section 16 of the Railway Claims Tribunal Act, 1987 (hereinafter referred to as „the Act of 1987‟) claiming a recovery by way of compensation for the short delivery of the consignment of iodized salt. The respective claim cases having been rejected by the tribunal under different orders hence the aforementioned appeals.

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The respective relevant foundational facts governing each of the appeals are being reproduced hereinbelow for the sake of

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convenience:

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M.A. No.	Claim Case No.	Claim(Rupees)	Consignm per ra receipt no	ent as ilway .	Short Deli	very	Consignment details as per Bijak
855 of 2011	OC-00165 of 2001 Shree Bihariji Enterprises, Warsaliganj, Nawada.	12,675/-	796 booked 30.1.2000 R.R.No.22	bags on vide 1071	195 delivered 4.2.2000	bags on	796 bags
857 of 2011	OC-00418 of 2000 Kishanlal Madanlal, Warsaliganj, Nawada.	11,765/-	740 booked 16/17.8.19 vide No.17267	bags on 99 R.R. 3	181 delivered 29.08.199	bags on 9	740 bags
859 of 2011	OC-00163 of 2001 Sri Balaji Enterprises , Warsaliganj, Nawada	10,985/-	822 booked 1.1.2000 R.R.No.22	bags on vide 0786	169 delivered 18.1.2000	bags on	822 bags
860 of 2011	OC-00140 of 2001 Sri Balaji Enterprises, Warsaliganj, Nawada.	15,925/-	888 booked 1.1.2000 RR No.22	bags on vide 0779	245 delivered 18.1.2000	bags on	888 bags
861of 2011	OC-00164 of 2001 Sri Balaji	16,510/-	895 booked 1.1.2000	bags on vide	254 delivered 18.1.2000	bags on	895 bags

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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	Enterprises, Warsaliganj, Nawada.		RR No.220787
862 of 2011	OC-00162 of 2001 Sri Balaji Enterprises, Warsaliganj, Nawada.	12,350/-	797 bags booked on 1.1.2000 vide RR. No.220784	190 delivered 18.1.2000	bags on	797 bags
863 of 2011	OC-00138 of 2001 Sri Balaji Enterprises, Warsaliganj, Nawada.	16,770/-	881 bags booked on 1.1.2000 vide RR. No.220775	258 delivered 16.1.2000	bags on	881 bags.
864 of 2011	OC-00139 of 2001 Sri Balaji Enterprises, Warsaliganj, Nawada.	21,710/-	1037 bags booked on 1.1.2000 vide RRNo.220776	334 delivered 16.1.2000	bags on	1037 bags
865 of 2011	OC-00420 of 2000 Kishanlal Madanlal, Warsaliganj, Nawada.	19,565/-	1480 bags booked on 16/17.8.1999 vide R.R. No.172668	301 delivered 29.8.1999	bags on	1480 bags

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As stated it is the case of the appellants that they had purchased iodized salt packed in bags from supplier/commission agent, having its business at Nawacity in the State of Rajasthan and booked the consignment from Nawacity, Rajasthan to Nawada in the state of Bihar. It is further the case of the appellants that the consignment received on arrival, was short by several bags as detailed against each case in the chart hereinabove. It is the case of the appellants that they immediately requested the Chief Goods Supervisor for a shortage certificate but was refused and thus made entry in the delivery book maintained for the purpose and mentioned the short delivery in the delivery book. On getting no response from the respondent-Railway

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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regarding making good the loss suffered by the appellants, a statutory notice was served under section 106 of the Act. Again getting no response from the respondent, that the claim cases were filed. The appellants in terms of Rule 7(1) of the Railway Claims Tribunal (Procedure) Rules, 1989 (hereinafter referred to as „the Rules‟) framed under section 30 of the Act of 1987 filed the following documents:

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(a) Photo copy of the railway receipt;

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(b) Notice served under section 106 of the Act ; and

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The facts leading to the present set of appeals are in very narrow compass. The records in each of the claim cases were summoned under the orders of this Court and a perusal whereof manifests that except for the railway receipt and copy of the notice served under section 106 of the Act no other document was filed by the appellants. Even the so-called sale invoice (Bijak) was filed after 10 years except in Case No.OC-00420 of 2000. The appellants filed application under section 18(3) (b) of the Act of 1987 read with rule 20(b) and 44 of the Rules seeking a direction to the respondent to produce the loading register, forwarding note, the original railway receipt, the seal, rivet and labels, the outward tally book, the delivery book etc. of the relevant period which, according to the appellants, would have proved their contentions regarding the actual loading of the respective consignment. It is the case of the appellants that neither any

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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documentary or oral evidence was led by the railways to contest the claim nor did they choose to produce any of the statutory registers as prayed for by the appellants and despite absence of evidence to contest the claim set up by the appellants, the tribunal has mechanically rejected the claim and dismissed the cases simply by relying upon the proviso to section 65(2) of the Act.

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Identical facts govern all the appeals which have been heard analogous except for variation of the number of bags received short by the appellants which has been detailed in the chart given hereinabove.

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The entire foundation of the claim set forth by the appellants rests on the application filed for production of the forwarding note, the original railway receipt, the outward tally register, the delivery book etc. Except for the claim case which is subject matter of M.A. No.865 of 2011, in the rest of the cases the copy of the sale invoice which was required to be filed along with the application in terms of rule 7 of the Rules, were in fact filed after 10 years and no reasons have been assigned for the delayed submission. A noticeable feature of the Bijak is that though it happens to be a sale invoice issued at the time of purchase but most of them mention the wagon number(s) and the railway receipt number(s) even when according to the claimants, the consignment was booked after the purchase. The

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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mention of the railway receipt number and the wagon number in a sale invoice issued at the time of purchase, is incomprehensible. Even otherwise a sale invoice is merely an evidence of purchase but cannot be an exclusive piece of evidence to support the number of bags actually loaded by the consignor.

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It has been the contentions of the claimants who are appellants before this Court that the sale invoice, the railway receipt and the statutory registers, the production of which they had filed application, all considered alongside, would support the claim set up but these contentions have been contested by learned counsel appearing for the Union of India while relying upon the provisions of sections 63, 65, 79, 81, 93 and 97 of the Act to demonstrate that there is a clear distinction between a goods transported at „owner‟s risk rate‟ and goods transported at „railway risk rate‟. It is the stand of the railways that there is complete absence of supervision in the matter of goods being loaded at „owner‟s risk rate‟, and which is also manifest from perusal of the railway receipt issued in the present set of appeals which specifically contains the remark like „said to contain‟, „loading not supervised‟, „direct loading from truck to wagon‟ „contents neither counted nor checked‟ etc. He submits that these remarks are not present in the railway receipts where goods are being transported at „railway risk rate‟ and in which case, the entire responsibility for safe delivery

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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of the goods rests on the railway administration. He thus submits that even though no order was passed by the tribunal for production of the statutory registers but even their production would not have made any difference in view of the fact that there is no supervised loading in such cases.

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Each side has relied upon the various judicial pronouncements passed by this Court and the Supreme Court in respect of their respective contentions as also the relevant instructions issued by the railway administration which form part of the Indian Railway Commercial Manual Vol.-II („I.R.C.M.‟ for short).

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I have heard learned counsel for the parties and have perused the materials on record including the judicial pronouncements referred to by the contesting parties and the instructions forming part of the I.R.C.M. All the issues as raised in these batch of appeals in the backdrop of the statutory provisions, the instructions forming part of I.R.C.M. and the judicial pronouncements on the subject, were subjectmatter of batch of cases bearing M.A. No.503 of 2011 and analogous cases (Kanhaiya Bhalotia vs. The Union of India). This Court taking into consideration the rival pleadings, the statutory provisions and the various judgments governing the issues has dismissed the said appeals vide judgment and order dated 26.9.2013. The broad reasons assigned by this Court to dismiss the appeals in the backdrop of the

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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circumstances accompanying each appeal and which also govern the present set of appeals are as follows:

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(a) No document is on record regarding exercise of option by the appellants for carriage at „railway risk rate‟ meaning thereby the carriage was at „owner‟s risk rate‟.

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(b) No authentic piece of evidence either oral or documentary has been led by the appellants as to the proof of number of packages loaded.

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(c) No written complaint was registered regarding tampering with the consignment either with the railway administration or the G.R.P.

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(d) No written complaint has been registered by the appellant regarding short delivery except entry in delivery book, as claimed by him.

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(e) No request was made for open delivery in presence of the G.R.P.

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(f) No mention of tampering with the seals even in section 106 notice rather the first complaint in this regard is in the claim application itself.

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(g) The „Bijak‟ was submitted after 10 years except in claim case which is subject matter of M.A. No.865 of 2011 or more and is of a doubtful character and most of them even mention the wagon number and the railway receipt number. Further same has not been proved in the manner prescribed under law.

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(h) No examination of the Seller on the „Bijak‟.

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(i) No railway staff examined to prove the loading.

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(j) Booking under the railway receipt was for direct loading from the truck with no supervision of the railway staff.

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013

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(k) No negligence of the railway administration proved.

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(l) The documents in relation whereto the petition under section 18(3) (b) was filed would in no manner alter the situation since the railway receipt itself inter alia contains, the following remarks:

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(i) “S.C.” i.e. „said to contain‟ as per statement of consignor.

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(ii) „Loading not supervised by the railway staff‟.

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(iii) „Direct loading-P-17 not complied with‟.

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(iv) „Neither K/S counted nor contents checked‟. (v) „Loading direct from truck to wagon‟.

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In view of the circumstances set forth above there cannot be any other conclusion but to dismiss all these appeals. The detailed reasons assigned by this Court for dismissing the appeals which were

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the subject matter of M.A. No.503 of 2011 and analogous cases ( Kanhaiya Bhalotia vs. The Union of India ) to uphold the order(s) passed by the Railway Claims Tribunal, Patna Bench, Patna and to dismiss the appeals shall form part of the present order.

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In the result, these appeals are dismissed but without any order as to costs.

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Let the lower court records in the respective appeals be returned to the Railway Claims Tribunal, Patna Bench, Patna forthwith.

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(Jyoti Saran, J)

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SKPathak/-

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Patna High Court MA No.855 of 2011 (9) dt. 01-10-2013 13

Punit Kumar Jalan v. the Union of India

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Punit Kumar Jalan v. the Union of India

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