R.R. COALS Vs. UNION OF INDIA

JUDGEMENT

(1.) IMPUGNED in the present appeal is the judgment dated 28.3.2012, passed by the Railway Claims Tribunal, Chandigarh Bench, Chandigarh (for short, 'the Tribunal'), vide which the application of the appellant under Section 16 of the Railway Claims Tribunal Act, 1987 (for short, 'the Act') for grant of compensation to the tune of Rs. 24,45,728/ -, on account of short delivery of consignment was dismissed.

(2.) BRIEF facts which need to be recorded for the purpose of disposal of the present appeal are that M/s. Bharat Coal Depot, Guwahati loaded a rake of coal in 40 BCNs from Rangiya (NF Railway) for Dhandari Kalan (N. Railway) District Ludhiana. 20 BCNs were meant for the applicant. 1 BCN was detached enroute earlier to Laksar. Therefore, 19 BCNs reached the destination along with the rake. On 14.6.1998, said M/s. Bharat Coal Depot loaded another rake of coal in 38 BCNs from Rangiya to Dhandari Kalan out of which 6 were meant for applicant. Both the rakes reached the destination on 22.6.1998 and 23.6.1998 with 19 BCNs and 6 BCNs respectively meant for the applicant. It is stated that both the rakes were weighed enroute at Laksar Weigh Bridge of the Railway on 21.6.1998 and 22.6.1998 respectively by the Vigilance Staff of Baroda House, New Delhi and it was alleged that the wagons were overweight. Due to alleged overweight, the chief Goods Supervisor imposed heavy penalty towards freight at penal rate. The applicant requested the Railway for re -weighment of goods in his presence as the applicant was not satisfied with the weighment done at Laksar. But the same was declined. The Chief Goods Supervisor, Dhandari Kalan, however, refused to forward the request of the applicant for weighment to Senior Divisional Commercial Manager, Ferozepur with the proposal for re -weighment unless book delivery was taken by the applicant after depositing the penal freight charges. The applicant accordingly, paid the penal freight charges of Rs. 5,10,987/ - on 24.6.1998. The senior Divisional Commercial Manager, Ferozepur disallowed the re -weighment on 25.6.1998. The penal action by the Railway adversely affected the reputation of the applicant. Therefore, the applicant requested the Consignor M/s. Bharat Coal Depot, Guwahati to take legal action on their behalf. M/s. Bharat Coal Depot filed a petition in the Guwahati High Court for weighment of both the rakes. The High Court allowed the said petition on 10.7.1998 and directed the Railway to re -weigh the coal lying at Ludhiana Railway Station at the nearest government approved weigh bridge as per choice of the Railways for which all expenses were to be borne by the petitioner. Railway filed appeal before the Division Bench of the Guwahati High Court against the judgment of the Single Bench. The same was dismissed on 7.8.1998 with the modification that re -weighment should be done on the same weigh bridge at Laksar after thorough testing by the competent person not inferior in rank to that of the Weigh Bridge Inspector of Mechanical Department under the supervision of higher officer and a certificate to this effect was required to be furnished to the petitioner before starting re -weighment. Railway was still not satisfied with the order by the Division Bench and filed Special Leave Petition in the Hon'ble Supreme Court of India which was dismissed on 11.12.1998. The Chief Goods Supervisor, Dhandari Kalan informed the applicant on 19.12.1998 that in compliance with the order of Guwahati High Court, re -weighment of the coal was permitted for which entire cost of haulage to and from Laksar, cost of re -weighment was to be borne by the petitioner and these dues were ordered to be paid in advance as per Railway Rules. Accordingly, the applicant paid Rs. 2,35,928/ - in cash on 19.12.1998 with Chief Goods Supervisor, Dhandari Kalan against receipt No. 393553. The Consignor accordingly reported to the Station Superintendent Laksar on 20.12.1998 and requested to take effective testing of weigh bridge as per directions of the Guwahati High Court before undertaking re -weighment of rakes. Railway authorities with their senior officer and the representative of the consignor and an expert on weigh bridge tried their best to make the Laksar weigh bridge functional with their hectic activities on 29.12.1998 and 30.12.1998 but it could not be made functional. Therefore, Railway and other representatives jointly agreed to adjourn the proceedings sine die and it was agreed that Railway would intimate the next date to the parties for effective testing of the weigh bridge at Laksar. The Station Superintendent Laksar in letter dated 30.12.1998 informed the petitioner that rakes could not be re -weighed at Laksar as the testing of the weigh bridge could not be completed. The Chief Goods Supervisor, Dhandari Kalan on the instructions of his superior officers intimated the consignor on 4.1.1999 that Railway weigh bridge at Laksar being out of order the re -weighment of rakes would be done at Bathinda. It was at this stage that it came out that the weigh bridge is defective. Therefore the venue for re -weighment was changed to weigh bridge of M/s. National Fertilizer Limited Nangal Dam by the railway authorities. Railway authorities brought the rakes from Laksar to NFL Nangal Dam and re -weighment was done on 20.1.1999 and 21.1.1999 in the presence of Senior Railway Officers including Chief Vigilance Inspector Baroda House, New Delhi wherein no over -weight was found. Rather shortage of 105.500 MT coal was noticed in both the rakes whereas the defective weigh bridge at Laksar had shown excess weight for which penalty of Rs. 5,72,008/ - had been demanded by the Railways. The cost of shortage of coal works out to Rs. 2,26,825/ -. Both the rakes were unloaded at Dhandari Kalan on 23.1.1999 and the delivery was offered by the Railways which was accepted by the applicant. It is further stated that coal remained closed in the wagons for six months and its calorific content deteriorated to a great extent and it had been sold at meager rates which was Rs. 350/ - per M.T. Less than even the cost price. Therefore, the applicant suffered a loss of Rs. 4,94,795/ - on the consignment of 1413=700 M.T. Coal. The applicant wrote to the General Manager, New Delhi on 12.7.1999 for refund of Rs. 5,10,987/ - paid on 24.6.1998 towards penal rate of freight on the alleged over. Railways refunded Rs. 4,40,751/ - on 28.5.2001. A sum of Rs. 70,236/ - was disallowed including Rs. 26,415/ - on account of demurrage charges of 25 BCNs. The deduction of balance amount of Rs. 43,821/ - was erroneous and did not pertain to any demand of the applicant. Therefore, the said amount is also required to be refunded. Interest on Rs. 4,40,751/ - from 24.8.1998 to 27.5.2001 and interest on the balance of Rs. 43,821/ - for the period from 24.6.1998 till date may also be paid to the applicant. Further a sum of Rs. 2,35,928/ - was paid to the Railways on 19.12.1998 towards re -weighment and haulage charges. Applicant requested the General Manager Northern Railway, New Delhi through letter dated 12.7.1999 to refund the amount. The same has not been refunded so far. The same may also be refunded to the applicant along with the interest from 19.12.1998 till its payment. It was further pleaded that the capital of the applicant to the extent of Rs. 32.60 lacs remained blocked for a period of seven months for which they suffered loss of Rs. 3,42,959/ - (@ 18% per annum interest). The applicant had to rotate their funds for at least four cycles then they would have made profit of Rs. 150 per MT for 1599 MT, therefore, they would have made profit of Rs. 9,11,400/ -. The applicant suffered legal and miscellaneous expenses to the tune of Rs. 1,90,000/ - in fighting legal battle at Guwahati High Court and Supreme Court. The applicant also suffered mental strain, agony, defamation and humiliation on account of penalty. The applicant sought compensation to the tune of Rs. 24,45,728/ - plus interest besides compensation for suffering mental strain, agony, defamation, humiliation and goodwill. The Railways in the written statement took the objection that the applicant is not a registered firm and application is barred under Section 69 of the Indian Partnership Act. The action of respondent in weighing the consignment is authorized under Section 78 of the Railways Act read with the provisions of Indian Railways Commercial Manual and the RR containing a stipulation for weighment enroute or at forwarding station before delivery. Therefore, the Tribunal has no jurisdiction to decide the application. It was stated that the applicant is not entitled to compensation of Rs. 24,45,728/ - on account of mental strain, agony, defamation and humiliation as claimed. It was stated that the penalty as admissible under the Rule was charged. The weigh bridge of Laksar was perfectly in order at the time of re -weighment. From the pleadings, following issues were framed : - -

(3.) WHETHER penal were rightly recovered by respondents?