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Judgment
M.D. Shah, J.—Heard learned Senior Counsel, Mr. M.R. Bhatt for Mrs. M.M. Bhatt for the appellant and learned Counsel Mr. B.I. Mehta for the respondent.
Learned Senior Counsel, Mr. Bhatt, submitted that though affidavit of escort was placed on record at Ex.21, it was held by the learned Railway Claims Tribunal that no affidavit of escort nor any other document was produced by the appellant and by that, the Tribunal committed error in coming to the conclusion that the appellant failed to prove that the goods were carried through a shorter route. In support of his submission, he took this Court through the evidence on record wherein affidavit of escort Shri Narayan Laxman Gawas was produced by the appellant which was also exhibited as Ex.21. Ex.20 is an application preferred by the appellant mentioning therein enclosing the affidavit of escort. He further submitted that the appellant loaded the rake from 30-12-1987 to 1-1-1988 and notice u/s 78(B) was issued to the respondent within stipulated time. He drew the attention of this Court towards Railway Board''s letter No. TCR/1125/86/3 dated 27-3-1987 circulated under Through Rate Circular 6 of 1987 more particularly para 13, sub para 2, Clause (c) which reads as under:
In respect of traffic booked by the rationalised route, but mostly carried by the shortest/cheapest route, freight charges may be retained by the carried route and the balance refunded.
He further submitted that on the date of loading the rake, this circular was in existence and so the appellant is entitled to the benefit of afore referred circular. However, it was held by the learned Tribunal that said circular was cancelled in 1988.
It is pertinent to note that on the date of loading the rake, the circular was in existence. However, nothing appeared on record to indicate that the circular was applicable to the cases where rake was loaded prior to the date of cancellation of circular. It appears that the Tribunal has not discussed anything regarding the circular as to whether it would be applicable to the cases before cancellation of the circular.
As discussed above, though the affidavit of escort was produced on record at Ex.21, it was held by the Tribunal that no affidavit was produced by the appellant and as discussed above, the Tribunal did not give any finding as to whether the circular dated 27-3-1987 was in existence when the rake was loaded and thereby applicable to the case of the appellant or not. In view of the above, the discussions made and findings arrived at by the Tribunal in this regard appear to be contrary to the evidence on record. Hence, the matter is required to be remanded to the Tribunal for a decision afresh.
In view of the above, the judgment and order dated 14-10-1996 passed by the learned Railway Claims Tribunal, Ahmedabad Bench, in O.A. No. 923 of 1990 is quashed and set aside i.e. qua the present appellant only. The matter is remanded to the learned Tribunal for a decision afresh. The Registry is directed to send back the record and proceedings forthwith. The learned Tribunal is directed to decide the case of the appellant on its on merits and in accordance with law on affording full opportunities to both the parties. The appeal stands allowed to the aforesaid extent.