Gauhati High Court Directs Railway Tribunal To First Determine Weight Of Goods Loaded At Origin Before Fixing Liability For Short Delivery

The Gauhati High Court on Tuesday set aside the judgment and order passed by the Railway Claims Tribunal, Guwahati Bench which held that the Railway was responsible for short delivery of goods (Superior Kerosene Oil-SKO) on the ground that the Tribunal has not decided the issue as to what was the weight or volume of the goods loaded by the respondent Indian Oil Corporation Ltd. (IOC) at the place of origin.

The single judge bench of Justice Parthiv Jyoti Saikia noted:

“I find that the learned Tribunal has not decided on the most pertinent question as to what was the weight or volume of the goods loaded by the respondent IOC at the place of origin.”

The respondent IOC booked 47 BTPN Tank wagons for transporting Superior Kerosene Oil (SKO) from Paradeep to Tinsukia. The Goods were loaded under the supervision of Railway and on verification of the quantity loaded by dip measurement, freight bills were prepared.

At the time of unloading at destination station, freight seals of both top and bottom were found missing and the oil was leaking. The respondent discovered that 25767 litres of SKO was found short in 29 BTPN Tank wagons. Therefore, on the basis of the price per kilo litre, the respondent claimed Rs.7,80,521/- from the appellant (Railways).

The appellant claimed that the seals were intact in all the wagons except one wagon, in which the seal was found to be in a defective condition. It was also averred that the consignment was booked under the owner’s risk rate and therefore, it is protected under Section 97 of the Railways Act.

It was further claimed by the appellant that the loading was not supervised by any Railway employees and therefore, as per Section 65(2) of the Railways Act, the burden of proving the quantity or volume of the consignment lies upon the respondent.

The Railway Claims Tribunal, Guwahati Bench (Tribunal) held that the appellant Railway was responsible for short delivery of goods.

The Court noted that the Railway receipt shows that the consignment was loaded at the private siding of the respondent and the loading was not supervised by Railway staff and it was “said to contain SKO as per forwarding note”.

The Court relied upon judgment of the Gauhati High Court in Sreeniwas Basudeo vs. Union of India and Ors. 2002 (1) GLT 605 wherein it was held that the phrase “said to contain” cannot be interpreted as “contained”.

The Court further placed reliance upon its own judgment in Union of India v. M/s Indian Oil Corporation Ltd. MFA/92/2016 in which it was held that when there is no clear statement by the Railway servant about the volume of goods loaded at the place of origin, Section 65(2) of the Railways Act would be applicable and the burden to prove the weight or volume of the goods at the place of origin, would be on the respondent.

The Court noted that the Tribunal has not decided the question as to what was the weight or volume of the goods loaded by the respondent IOC at the place of origin.

Thus, the Court set aside the impugned judgment and order passed by the Tribunal and remanded back the matter to the Tribunal to decide the issue as to what was the quantity of goods loaded by the respondent at the place of origin and further directed the Tribunal to pass a fresh judgment on all issues accordingly.

Case Citation: 2023 LiveLaw (Gau) 92

Case Title: Union of India v. M/s Indian Oil Corporation Ltd.

Case No.: MFA/15/2015

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