Railway Claims Tribunal; Indo Salt Co. Vs. G.M., N.E. Railway [Rajasthan High Court, 17-10-2016]

Railway Claims Tribunal Act, 1987 – Section 23 – Railways Act, 1989 – Section 72 – Maximum carrying capacity for wagons and trucks – the excess weight over and above the permissible level, which is subjected to a penal charge is always below the maximum limit and the extra charge is for services, which involved extra strain to the property of the Railways and, therefore, the same cannot be termed as penal in nature. The appellants had carried 2 tonnes goods in excess of permissible carrying capacity of 28 tonnes and, therefore, the respondents were justified in charging the penal freight from the appellants. The findings recorded by the Tribunal cannot be faulted.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

HON’BLE MR. JUSTICE ARUN BHANSALI

Date of Judgment :: 17.10.2016

S.B. CIVIL MISC. APPEAL NO.1350/2004

APPELLANTS:- 1. Indo Salt Company, 2. Sarvotam Salt Industries, 3. Onkar Dass Rama Kishan, 4. Shanti Lal Hari Narayan, 5. Purohit Enterprises, 6. Hiteshi Sales Corporation, 7. Varun Enterprises, 8. Chiranjee Lal Jai Kishan Soni, 9. Bhanwani Industries. All are the Salt Traders of Phalodi Railway Station of the Jodhpur Division through Manak Lal Vyas (Power of Attorney Holder of all the nine Salt Traders) & the proprietor Sarvotam Salt Industries, Phalodi, Distt. Jodhpur. VERSUS RESPONDENTS:- U.O.I. through :- 2 1. The General Manager, North Eastern Railway, Head Quarter Officer, Gorakhpur. 2. General Manager, Northern Railway, Baroda House, New Delhi (Now General Manager, North Western Railway, Jaipur). 3. Chief Commercial Manager (Refund) Hqr. Office, Northern Railway, Baroda House, New Delhi (Now Hqr. Office North Western Railway, Jaipur). 4. Chief Commercial Manager (Refund) Hqr. Office North Eastern Railway, Gorakhpur. 5. Station Master, Narayanpur Anant, North Eastern Railway. 6. Station Master, Phalodi, Northern Railway, Jodhpur (Now Station Master Phalodi North Western Railway, Jodhpur Division, Jodhpur). ***** Mr. N.K. Khandelwal, for the appellants. Mr. Kamal Dave, for the respondents.

JUDGMENT

BY THE COURT:

This appeal under

Section 23 of the Railway Claims Tribunal Act, 1987

has been filed by the appellant aggrieved against the judgment dated 10.03.2004 passed by the Railway Claims Tribunal, Jaipur Bench (‘the Tribunal’), whereby the claim made by the appellants has been dismissed.

The application was filed by the appellants before the Tribunal for refund of freight amounting to Rs.4,57,009/-, inter alia, with the averments that the applicants were Salt Traders; after clubbing their demand placed indents for a rake consisting of 40 box wagons to carry salt from Phalodi to Narayanpura Anant; the respondents instead of supplying 40 box wagons, supplied 58 CRT wagons; the applicants loaded their consignment in the allotted CRT wagons and 29 Railways receipts were issued to the applicants. It was claimed that the Station Master, Phalodi through his communication dated 10.04.1995 (Annex.-A/3) specifically asked the applicants to load each CRT wagon, as per its carrying capacity plus 2 tonnes. The applicants complying with the specific written direction, loaded 2 tonnes extra than the carrying capacity in each of the CRT wagons; the required Railway receipts were issued to them. On the consignment reaching the destination, the Station Master, Narayanpura Anant charged penal freight and other penalty for 2 tonnes extra loading in each CRT wagon vide Annex.-A/6, the total amount being Rs.4,57,009/-. It was claimed that applicants had paid the freight for carrying capacity plus 2 tonnes at the booking Station. It was, inter alia, claimed that action of the respondents in recoverying the undercharge was wholly arbitrary and unreasonable, no wrong was committed in loading the CRT wagons in terms of the directions of the Station Master, Phalodi and, therefore, the applicants have no liability, the recovery was contrary to principles of natural justice and prayed that the amount be refunded.

A response to the application was filed by the respondent-Railways, except for accepting that the applicants loaded 2 tonnes extra than the carrying capacity in each of the CRT wagons, rest of the averments made in the application were denied. In additional pleas, it was submitted that the applicants have no cause of action, after getting indent from the consignors, the administration placed 58 CRT wagons for loading of subject consignment at forwarding Station, wagons supplied were having carrying capacity of 28 tonnes in each CRT wagon, wherein the consignments were directly loaded, which was not supervised by the Railway Staff. The permitted loading of salt in CRT wagons was 28 tonnes only i.e. the carrying capacity, however, the applicants loaded more than the carrying capacity; when the loading was more than the allowed weight, the freight ought to have been charged as per Rules, but the staff of the forwarding Station charged normal rate by mistake and on arrival of the consignment at destination station, the error was detected and charges were realized. It was prayed that the application be dismissed.

The applicants filed replication to the reply. Reliance was placed on the instructions (Annex.-A/3) regarding loading of goods to the extent of carrying capacity plus 2 tonnes. The allegations made in the reply were denied and the claim was reiterated.

Based on the pleadings of the parties, the Tribunal framed four issues. One additional issue regarding maintainability was also framed. In support of the claim, the applicants filed affidavits of two persons and the respondents filed affidavits of three persons. The Station Master at Phalodi Shiv Lal, while in service filed affidavit on behalf of the respondents and after retirement filed an affidavit in support of the claim of the applicants and he was cross-examined by the counsel for the Railways.

After hearing the parties, the Tribunal came to the conclusion that the applicants have right to sue, the extra loading of 2 tonnes in CRT wagons was against the provisions of Rules and Circulars issued by the Govt. of India, the normal carrying capacity of a CRT wagon is 28 tonnes, 2 tonnes extra has been loaded beyond its normal carrying capacity, which is the maximum carrying capacity as per Circular dated 11.10.1991, therefore, the charges levied against the consignors are as per Rules and they cannot be termed as arbitrary or illegal. It was held that joint petition was maintainable. However, keeping in view the finding on the four issues, the application was dismissed.

Feeling aggrieved, the present appeal has been filed by the appellants.

It was submitted by learned counsel for the appellants that the appellants loaded 58 CRT wagons as per the direction Annex.-A/3 of the Station Master, Phalodi i.e. carrying capacity plus 2 tonnes, the Railway receipts were issued and the forwarding note indicated the quantity i.e the carrying capacity plus 2 tonnes, freight was also charged for the entire weight, the goods Clerk at the destination charged penal freight of a sum of Rs.4,57,009/-, which was paid and delivery was taken. Initially the application was filed before the Tribunal at Patna, which was subsequently transferred to Jaipur.

With reference to the various provisions of the