Judgment:
Shiv Kumar Sharma, J.
1. All these 14 civil misc. appeals arise from a judgment dated October 29,1991 passed by the Railway Claims Tribunal' Jaipur (for short the Tribunal). These appeals have been argued together by the learned Counsel for the parties. As common questions of fact and law are involved in these appeals they are being decided together.
2. In all these 14 matters the appellants have claimed the amount of compensation for short delivery of coal booked from Kusanda (BG) to NMK (MG) (in 5 matters) and ex. Kusanda (BG) to Maonda (MG) (in 9 matters). Details of each matter with regard to amount claimed and booking particulars, wagons loaded and delivered have been given in the statement enclosed with the judgment of the learned Tribunal.
3. The coal in all these 14 matters was booked at owner's risk rate. The contention of the appellants in all these matters is that the shortage in each case was due to negligence/misconduct on the part of the Railway Administration. The Railway Administration on the other hand took the plea that there was no negligence on the part of Railway Administration. Some other legal pleas with regard to notice under Section 78-B of the Indian Railways Act and Section 80 of the Code of Civil Procedure as well as limitation had been taken.
4. Earlier the appellants instituted independent suits in the Court of Additional District Judge, Neem Ka Thana against the Union of India but subsequently, the learned District Judge. Seekar in view of the provisions contained in Railway Claims Tribunal Act, transferred the said cases to the learned Tribunal. Prior to transfer the learned Additional District Judge framed issues in 13 cases and in one case the learned Tribunal framed the issues almost on the lines as framed by the Additional District Judge, Neem Ka Thana.
5. In six cases affidavits of Mahesh Kumar Kirori Mai Rajkunwar Singh have been filed and in other three cases affidavit of Kirori Mai Ramkunwar and Lal Chand have been filed in three cases affidavits of Kishan Agarwal Abdul Salam and Ramkunwar Singh have been filed. In case No. 362/90 affidavits of Kishan Agarwal Babuddin and Ramkunwar Singh have been filed and in case No. 365/ 90 affidavits of Mahesh Kumar, Abdul and Ram Kumar have been filed. The respondent did not file any affidavit but produced statement showing the booked quantity of coal as well as carrying capacity of M.G. wagons.
6. The only point considered by the learned Tribunal was as to whether in all the 14 matters the applicants had been able to prove that the shortage in each case was due to negligence/misconduct on the part of the Railway Administration of any of its employees.
7. After a detailed discussion the learned Tribunal dismissed the applications of the appellants in case Nos. 354/90,355/90, 356/90,357/90, 1026/90, 359/90, 360/90,361/90, 362/90, 364/90, and 366/90 but allowed the applications in case Nos. 358/90,363/90,365/90.
8. I have given my anxious consideration to the rival contentions and carefully perused the record.
9. Mr. Ajay Tyagi, learned Counsel for the appellants canvassed that in all the 14 matters coal was transhipped from B.G. wagons to M.G. wagons and the railway was negligent in not transhipping the full quantity of coal from B.G. wagons to M.G. wagons. The appellants had filed affidavits in support of their contentions but no counter-affidavit was filed by the Railway Administration.
10. On the other hand Mr. S.K., Jain learned Counsel for the Railway Administration contended that mere fact of transhipment is not sufficient to shift the burden of proof from the applicant that the Railway Administration was negligent. Mr. Jain, learned Counsel referred Section 76-F of the Indian Railways Act which lays down that in case of owner's risk rate, where the whole of consignment of goods or the whole of package forming part of a consignment carried at owner's risk rate is not delivered to the consignee and such non-delivery is proved by the Railway Administration to have been due to fire or to any accident to the train, the Railway Administration shall be bound to disclose to the consignor, how the consignment of the package was dealt with throughout the time it was in its possession or control. Therefore, in those cases, where there is shortage due to non-delivery of complete MG wagon (part of the consignment of B.G. wagon), the presumption may be drawn against the Railway Administration regarding the negligence/misconduct because the Railway Administration has not disclosed as to how the MG wagon in which the transhipment was made, dealt with during the period that it was in its possession. But if all the MG wagons, in which the consignment of B.G. wagons transhipped, have been delivered to the applicant then no such presumption will be drawn,
11. In the light of the provisions contained in Section 76-F of the Indian Railways Act, the learned Tribunal adjudicated the claim applications of the appellants. In case No. 354/90 the booked quantity of coal is one 59.1 MT and it was loaded in BG wagon No. SC 87678. This BG wagon was transhipped in one BKCWR 57573 and one CSC 34216, of which carrying capacity is 37.0 MT and 18.6 MT respectively. It has been observed by the learned Tribunal that consignment of one 59.1 MT of coal could easily be transhipped and reloaded in these two MG wagons and both these two MG wagons have been delivered to the applicant. Therefore, it has been held that the shortage is not due to negligence/misconduct on the part of the Railway Administration and compensation, claim under Section 74(3) of the Indian Railways Act and Railway is not liable to pay the compensation of claim under Section 74(3) of the Act and the suit is liable to be dismissed.
12. There is an error apparent on the face of the above observation. The booked quantity of coal is one 59.1 MT. This quantity was transhipped in one BKC WR No. 57573 and one CSC No. 34216 of which, carrying capacity is 37.3 and 18.6 MT. i.e. 55.6 MT. In these wagons, therefore, total booked quantity of coal which is 59.1 MT. cannot be loaded.
13. Similarly, in Case No. 355/90 suit consignment was 57.07 MT. and carrying capacity of MG wagons in which the coal was transhipped was 37.3 MT and 18.0 MT. i.e. 55.3 MT. In these wagons total consignment of coal could not have been transhipped. Therefore, the observation of the learned Tribunal that the consignment of coal could easily be transhipped and re-loaded in these two MG. wagons cannot be termed as 'correct and well reasoned'.
14. In case No. 356/90 the booked quantity of coal is 58? MT. It is transhipped in two MG wagons carrying capacity of which is 37.6 MT and 18.0 MT i.e., 57.06 MT in which total consignment of 58.07 could not have been transhipped. The observation of learned Tribunal that the coal could easily be transhipped and reloaded in these wagons is ex-fade illegal.
15. In case No. 357/90 the booked quantity of coal is 56/07 MT. It was transhipped into two wagons, carrying capacity of which 36.7 MT and 18.0 MT i.e. 54.07 MT and total consignments of 56.07 MT could not have been transhipped and reloaded in these two wagons. The observations of learned Tribunal that coal could easily be transhipped in these wagons is ex-facie illegal.
16. In case No. 359/90 the booked quantity of coal is 57.06 MT it was transhipped into two MG wagons. The details of carrying capacity of all these two MG wagons have not been furnished by the Railway Administration. Therefore, the learned Tribunal allowed the application of the appellant in this case and directed to pay Rs. 11,478.46. Interest, however, has not been allowed to the appellant.
17. In case No. 1026/90 the booked quantity of coal is 58.9 MT. It was transhipped in 3 MG wagons carrying capacity of each wagon is 18.3 MT i.e. in all 54.9 MT. The total booked quantity of coal could not have been transhipped and reloaded in these three MG wagons and observation of the learned Tribunal that the consignment could easily be transhipped and reloaded, is ex-facie illegal.
18. In case No. 359/90 the booked quantity of coal is 58.9 MT. It was transshipped in 2 MG wagons carrying capacity of which is 18.3 MT and 36.6 MT i.e., 54.9 MT and total quantity of coal could not have been transhipped and reloaded in these two wagons and, therefore, the observation of the learned Tribunal that the coal could easily be transhipped and reloaded in these two wagons is ex-facie illegal.
19. In case No. 360/90 the booked quantity of coal is 57.0 MT. It was transhipped in 3 MG wagons carrying capacity of which is 18.3 MT i.e., in all 54.9 MT and the total consignment of coal could not have been transhipped in all these three wagons. The observation of learned Tribunal that the coal could have easily been transhipped and reloaded is ex-facie illegal.
20. In case No. 361/90 the booked quantity of coal is 59.7 MT. It was transhipped into three MG wagons of 18.3 MT each i.e. 54.9 MT. The total quantity of coal could not been transhipped and reloaded in these three wagons. Therefore, the observation of the learned Tribunal that the coal could have been transhipped and reloaded in these three wagons is ex-facie illegal.
21. In case No. 362/90 the booked quantity of coal is 56.9 MT. It was transhipped into three MG wagons of 18.3 each. The total quantity of coal could not have been transhipped and reloaded in these three wagons. Therefore, the observation of the learned Tribunal that it could easily be transhipped and reloaded is ex-facie illegal.
22. In case No. 363/90 the weight of the suit consignment is one 59.0 MT but, the Railway Administration did not furnish details of MG wagons in which, it was subsequently transhipped and reloaded therefore, the learned Tribunal awarded Rs. 12,105.18 as total claim; however, the interest was disallowed.
23. In case No. 364/90 the booked quantity of coal is 56.7 MT. It was transhipped and reloaded into two wagons carrying capacity of which is 35.0 MT and 18.3 MT i.e. 53.3 MT. The total quantity of coal could not have been transhipped and reloaded in these two MG wagons. Therefore, the observation of the learned Tribunal that it could easily be transhipped and reloaded is ex-facie illegal.
24. In case No. 366/90 the booked quantity of coal is 57.6 MT and it was transhipped into three wagons carrying capacityof which is 18.3 MT each i.e. in all 54.9 MT. The total quantity of coal could not have been transhipped in these three MG wagons. Therefore, the observation of the learned Tribunal that it could easily be transhipped and reloaded in these three wagons is ex-facie illegal.
25. In case No. 365/90 the booked weight of the suit consignment is 58.9 MT but the Railway Administration did not furnish any particulars about MG wagons, therefore, the application was allowed and the Railway Administration was directed to pay to the applicant Rs. 11,917.74. However no interest was allowed.
26. Mr. S.K. Jain, learned Counsel for the Railway Administration placed reliance on Union of India v. Universal Trading, : AIR1983Ker173 , in which the Division Bench of Kerala High Court observed that the burden to prove negligence or misconduct on the part of the Railway Administration is on the owner, no burden is cast on the Railway Administration to prove that the delay or detention resulting in loss of destruction, damage, deterioration or non-delivery is without negligence or misconduct on its part. In view of ratio of Universal Trading's case (supra). Mr. Jain, learned Counsel argued that the coal was booked at owner's risk rate, therefore, Railway Administration is not liable for compensation.
27. In the case on hand as has been indicated above that the appellants have filed affidavits in support of their applications and no counter-affidavit was filed on behalf of the Railway Administration. The learned Tribunal decided the claim applications on the basis of statement filed by the Railway Administration. It is evident from the statement that the booked quantity of coal was transhipped and re-loaded in small MG wagons in which total quantity could not have been transhipped or reloaded. I have already stated the learned Tribunal did not properly consider the statement filed by the Railway Administration and did not care to compare the total booked quantity and the carrying capacity of the MG wagons. Therefore, I am of the view that the appellants discharged their burden and prove that the short delivery of coal was because of negligence on the part of the Railway Administration. It is apparent from the record that booked quantity of coal could not have been reloaded in the M.G. wagons, carrying capacity of which was very much insufficient.
28. Now, I come to SB Civil Misc. Appeal Nos. 71/1992, 79/1992,81/1992. In all these three appeals the finding of the learned Tribunal disallowing the interest has been assailed.
29. In all such cases wherein interest is claimed by the claimants, the provisions contained in Interest Act are attracted. Interest Act contains provision that 'interest shall be payable in all cases in which it is now payable by law'. In UOI v. Steel Stock Holders Syndicate, 1976(3) Supreme Court Cases 108, though it was indicated that Interest Act was not applicable but, in that case the claimant did not claim the interest so the ratio of Steel Stock Holders Syndicate case is not applicable in the cases on hand and the claimants are entitled to interest also.
30. Upshot of the above discussion is that all the appeals are allowed and judgment of the learned Tribunal in cases No. 358/90, 363/90 and 365/90 so far it relates to disallowing the interest, is setaside. The judgment in all other remaining cases is setaside intoto and all the cases are remitted back. The learned Tribunal is directed to calculate the amount of compensation and interest in cases No. 354/90, 355/90, 356/90, 357/90, 358/90, 1026/90, 359/90, 360/90, 361/90, 362/90, 363/90, 364/90, 366/90, and 365/90. In cases No. 353/90, 363/90 and 365/90, the learned Tribunal shall calculate the interest on the claim awarded to the appellants. The appellants are also entitled to claim the costs of these appeals. The record of the case be sent back forthwith to the learned Tribunal and the parties are directed to appear before the Tribunal on 24th April 1997.