UNION OF INDIA Vs. LAXMIKANT SUNDERLALJI CHANDAK

JUDGEMENT

(1.) Union of India and General Manager, South Eastern Railway have filed these appeals under section 23(1) of the Railway Claims Tribunal Act, 1987. The challenge therein is to common order dated 30-3-1993 delivered by the Railway Claims Tribunal, Nagpur Bench in Claim Application Nos. 191 of 1991 to 196 of 1991, Claim Application No. 238 of 1991 and 240 of 1991. It is to be noted that the dispute in Claim Application Nos. 191 to 196 of 1991 pertains to non-delivery while dispute in Claim Application Nos. 238 and 240 of 1991 is in relation to short delivery of nine bags and 23 bags of incense sticks. Those Claim Applications were filed by present respondent pointing out that those consignments were booked in his favour by S. K. Enterprises, Himgir, District - Sundergarh (Orissa) and as he did not receive the consignment or then as there was short delivery, after serving the statutory notice as required by section 78B of the Indian Railways Act, 1890, (hereinafter referred to as the Act), he filed the Claim Applications. The booking dates are 9-11-1989 in Claim Application Nos. 191, 192, 193 and 195/1991, 12-8-1989 in Claim Application Nos. 196, 23-8-1989 in Claim Application No. 240/1991 and 18-10-1989 in Claims Application Nos. 194 and 238 of 1991. The defence of appellants before the Claims Tribunal was that there was no legal and valid notice as mandated by section 78B of the Act and the claimant (present respondent) lack locus because he was not the consignee, the quantum of loss sustained by claimant on account of alleged non-delivery or short delivery was not proved. Claims Tribunal has in para 4 of its judgment framed identical issues in all Claims separately but then its findings as recorded are common in all matters.

(2.) In this background, I have heard Shri Lambat, learned counsel for the appellants and Shri Khajanchi, learned counsel for the respondent.

(3.) Shri Lambat, learned counsel has after narrating the facts as mentioned above, contended that the provisions of section 78B of the Act are mandatory and non-compliance therewith has been proved on record because notices forwarded on 9-1-1990 by present claimant were not addressed to the Manager of Railways but have been sent to Chief Claims Officer. He further states that after realising this lacunae, the remedial measures have been taken and notices have been again forwarded on 24-7-1990 to General Manager, Railways - appellant No. 2. According to him, date 24-7-1990 is beyond six months from the date of booking and hence said notices are invalid and the Claims Tribunal has overlooked this aspect. In order to demonstrate the nature and importance of such notice, attention is invited to the judgment of Allahabad High Court in the case of Ram Padarath vs. Union of India, 1974 AIR(All) 465, particularly para 2 onwards. It is further contended that the claimant could not prove that he was consignee and therefore entitled to receive the delivery of incense sticks at Nagpur. For that purpose, attention is invited to Railway receipts to show that though the name of consignor is mentioned as S. K. Enterprises at Himgir, consignee is self. It is urged that endorsement on back of Railway receipt in favour of claimant has not been established to be made by consignor and for that purpose attention is invited to affidavit dated 11-1-1992 filed by one S. K. Dey, proprietor of S. K. Enterprises at Himgir. It is stated that in view of this affidavit, it was obligatory for the claimant to show that incense sticks were meant for him and therefore, he should have produced his accounts to prove payment made therefor to M/s S. K. Enterprises. It is argued that what is produced is only a statement of accounts but then actually payment through Bank Draft or Bank accounts which could have been demonstrated, has not been proved because those documents or witnesses are not produced before the Claims Tribunal. It is contended that therefore the claims as filed by present respondent were unsustainable and liable to be rejected.