JAYPEE REWA CEMENT Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal by the applicant before the Railway Claims Tribunal in Application No.627/1996 is directed against the order dated 5th June, 2002 passed by the learned Member (Technical), Railway Claims Tribunal at Guwahati rejecting the application filed by the present appellant for refund of the under charge realized from them.

(2.) THE facts relevant for the purpose of the present appeal may be noticed as under: - The appellant booked 4(four) consignments of cement vide invoice Nos.10 to 13, Railway Receipts No.408452 to 408455 dated 24th February, 1993 at SATNA for transportation to New Guwahati with the endorsement freight "to pay". On reaching of the consignments in the destination station, freight was realized and also amount of L 33,630/ - was collected from the appellant by the Railway Administration, which according to the appellant, was realized by the Railway Administration though the said amount is not liable to be paid. According to the appellant, the said amount has been realized despite the protest made and because of the mistake committed by the Railway Administration in calculating the distance between the two stations. The appellant, therefore, filed the said application before the Tribunal for refund of the said amount. During pendency of the application, the appellant, however, has submitted the calculation sheet to the effect that they are entitled to refund of L 25,869/ - towards the excess under charge realized by the Railway Administration from the appellant.

(3.) THE said proceeding was contested by the Railway Administration by filing written objection contending inter -alia that the right to sue, after transfer of the Railway Receipts, in view of Section 74 of the Railways Act, 1989 (in short, "the Act"), is on the consignee. It is also the stand of the railway that since the consignment has already been delivered to the consignee before the appellant/consignor lodged a claim for refund, it is the consignee who can maintain an action for refund of the amount, subject, however, to the right of the consignor in the event the consignor is authorized by the consignee to lodge such claim. The contention of the appellant that because of the mistake on the part of the Railway Administration in calculating the distance between the 2(two) stations, excess amount as under charge has been realized from the appellant/consignor, however, has not been disputed.