Rathi Brothers vs Union Of India

1) Heard Ms. M. Sarma, learned counsel for the petitioner and Mr. B. Sarma, learned Standing counsel for the respondent.

2) This is an application for review under section 114 read with order XLVII Rule 1 CPC against the judgment and order dated 07.12.2018 passed by this Court in MFA 08/08.

3) The learned counsel for the petitioner has submitted that the Court while dealing with various issues in MFA 8/2008 had erroneously appreciated the matter.

3) It is further submitted that the denial made by the respondent in para-6 of the written statement was not specific and vague, which amounted to an admission within the meaning of Order VIII Rule 3 and Order VIII Rule 5 CPC. It is further submitted that in para-7 of the claim petition, the petitioner had made a specific averment that the goods had arrived at Lumding transshipment point without seals and card labels and all doors in open condition and it was further stated that these goods had arrived at the destination after delay in transit and at the time of unloading it was found that the BG wagons were also without seals and all door in open condition, but the respondents herein had not denied the said averments. In para-7 of their written statement, it is merely stated as follows: "that the respondent denied all or whatever allegations are made in para-7(i) by the applicants." In this regard, it is stated that the said reply was vague, not specific and amounted to admission in terms of provision of Order VIII Rule 3 and 5 CPC. In support of her submission evasive denial amounts to admission, the learned counsel for the petitioner has relied on the case of M. Venkataramana Hebbar (D) Vs. M. Rajagopal Hebbar & Ors, (2007) 6 SCC 401.

4) It is submitted that this Court in para-11 of the impugned judgment after referring to the beejuk (bill) available in LCR containing bill No.18 dated 08.06.2005, it was held that the same was prepared after issuance of railway receipt on 03.06.2005 and, as such, this Court had formed an opinion that the entries on the beejuk cannot be said to be a proof of goods for the Railway for carriage. It is submitted that the said appreciation was erroneous because as per the provision of section 106 of the Railway Act, the consignor was only required to inform the Railway authorities about the loss, destruction, damage or deterioration of goods within a period of 6 months from the date of enforcement and accordingly, there was no requirement to indicate how the loss has occurred. In this regard reference is made to the provision of sub-section 110 of the Railway Act and it is submitted that the only duty cast on the claimant is to prove the monetary loss and in section 110 it is prescribed that it shall be not necessary to prove how the loss, destruction, damage, deterioration or non-delivery was caused. It is submitted that in order to establish the loss or non-delivery of the entrusted goods, the petitioner had submitted a notice within the meaning of section 106 of the Railway Act on 18.07.2005, 26.10.2005, 27.10.2005, 28.10.2005 and 05.12.2005. Accordingly, in view of the section 110 of the Railway Act, there was no requirement to inform the Railway that the BG wagons had arrived at the destination without seal and doors in open condition.

5) It is further submitted that in this case, the beejuk (bill) was admittedly prepared on 08.06.2005 after issuance of Railway receipt dated 03.06.2005 and on perusal of the said beejuk would show that the same was prepared after taking into account the cost of goods together with the transportation charges. Hence, it is submitted that the beejuk exhibited in the case was not to show entrustment of the goods, but the same was to establish the pecuniary loss within the scope of section 106 read with section 110 of the Railway Act.

6) Per contra, the learned Standing counsel for the Railway has also submitted that the grounds of review are very limited and unless the applicant is able to demonstrate that there was any error apparent on the face of the records or that the review was occasioned from the discovery of new and important matter or evidence, which despite exercise of due diligence was not within his knowledge or could not be produced at the time when the order was passed.

7) The learned Standing counsel for the Railway has submitted that unless the beejuk can be used for proving entrustment, it would not be possible for the learned Tribunal or for this Appellate Court to make any calculation about the loss incurred by the petitioner.

8) It is also submitted that this Court had considered all its aspects which is raised in this review and the Court had given its own reason for finding deficiency not claiming the wagon to have arrived in without any seal and all doors in open condition because that was not the plea taken in notice under section 106 of the Railway Act, and this Court arrived at a finding that from 21.09.2005, the seal and label cards was required to be preserved only for 6 months i.e. 20.03.2006 in terms of Para-1714 of Indian Railway Commercial Manual, Volume II. In this context, it is further submitted that in para-14 of the judgment amounted in this review, the claim was disallowed on the ground that the petitioner herein had ought not to make any quantity of short entries for carriage to the Railway administration.

9) Accordingly, it is submitted that when the learned counsel for the petitioner has admitted that the purpose of proving the said beejuk was not to prove enforcement but was to proof a financial loss, finding given by this Court in para-14 of the impugned judgment cannot be reviewed.

10) The points raised by the learned counsel for the petitioner is summarized as under, apart from which no other points were urged although there are several other grounds for filing this review application.

(i) This Court had failed to appreciate that the written statement was vague and lacked specific denial, as such, as per the provision of Order VIII Rule 3 and 5 CPC, the statements made in the claim petition is deemed to have been admitted by applying doctrine of non- traverse.

(ii) This Court had failed to appreciate that the beejuk (bill) was only to show the value of goods and to prove loss and the purpose of submitting beejuk before the learned RCT was not to prove entrustment of goods.

(iii) This Court had failed to appreciate that as per the provisions of Section 106 read Section 110 of the Railways Act, 1989 there was no statutory requirement that in such notice the railways should be informed that the wagons had arrived without seals and card labels or that the wagons had arrived in all doors open condition.

11) Before dealing with the points raised in this review petition, it appears that the plea of the petitioner is that this Court had incorrectly appreciated those points raised. Therefore, in the opinion of this Court, if there has been incorrect appreciation of issues raised by the petitioner, then the only remedy is to assail the judgment and dated 07.12.2018 passed by this Court in MFA 8/2008. It is too well settled that the grounds of review are limited to those enumerated in Section 114 read with Order XVII Rule 1(1) CPC and that under the review jurisdiction, this Court cannot re-open the hearing and correct all errors in appreciating the grounds of appeal. This Court in the case of State V. Atul Ch Das, (1995) 1 GLR 246, has categorically held that power of review is very restrictive and that review is by no means an appeal in disguise whereby a judgment is re-heard and corrected.

12) Nonetheless, the points raised by the petitioner has been examined to see if there was incorrect appreciation of law.

13) The point No.(i) is taken up first. It has been urged that this Court had failed to appreciate that the written statement was vague and lacked specific denial, as such, as per the provision of Order VIII Rule 3 and 5 CPC, the statements made in the claim petition is deemed to have been admitted by applying doctrine of non- traverse. The learned counsel for the petitioner had specifically submitted that statement made in paragraph 7(ii) of the claim petition was not denied. In this regard, from the perusal of the judgment and order passed by the learned RCT, it is seen that the said learned Tribunal had not held that the statements made in the written statement amounted to an admission by the railway administration. At the time when the respondents had filed the appeal i.e. MFA No. 8/2008, the petitioner had not taken up such plea by filing cross objection or by any other means. This plea was also not taken up at the time of hearing of the appeal. Hence, this appears to be a new ground taken in this review application. Nonetheless, the statement made in every paragraph of the plaint appears to have been denied, including paragraph 7(ii) of the claim petition was denied in paragraph 7 of the written statement, but without any elaboration. Thus, when the claim petition was not decided on the basis of admission, this cannot be a ground to review the judgment of this Court.

14) In connection with point No. (ii), This Court had failed to appreciate that the beejuk (bill) was only to show the value of goods and to prove loss and the purpose of submitting beejuk before the learned RCT was not to prove entrustment of goods. This Court is of the opinion that if the purpose of beejuk was not to prove entrustment, then without proving entrustment, there cannot be any scope of calculating the loss. The entry of value made in the beejuk (bill) is of no consequence if the petitioner does not prove entrustment of goods to the railways. The impugned judgment reveals that the Railway Receipt is dated 03.06.2005, but the Bill No.18 was dated 08.06.2005. In this regard, the specific finding of this Court was to the effect that the entries made in the beejuk cannot be said to be a proof of goods entrusted to the railways for carriage. It is seen that the RCT had granted compensation on the basis of rate provided in the beejuk. Hence, in exercise of review jurisdiction, this Court cannot embark upon an enquiry as to whether the intent of beejuk was to prove loss and not to prove entrustment, when the claim petition does not demonstrate this stand.

15) The point No.(ii) was to the effect that this Court had failed to appreciate that as per the provisions of Section 106 read with Section 110 of the Railways Act, 1989 there was no statutory requirement that in such notice the railways should be informed that the wagons had arrived without seals and card labels or that the wagons had arrived in all door open condition.

16) In the opinion of this Court when the statute prescribed a mandatory notice is to be served under section 106 of the Railways Act, 1989 it is accepted that the claim would reveal all the grounds for which compensation is claimed in the said notice.

17) This Court is unable to accept that the submission made by the learned counsel for the petitioner that there was no requirement to disclose in the notice under section 106 of the Railway Act that the BG wagons had arrived at the transshipment point or in the unloading station without seals and all doors were in open condition or under section 110 of the Railways Act there is no requirement to disclose such state of affairs. It appears from the provision of section 110 of the Railway Act that the burden of proof of loss, destruction, damage, deterioration or non-delivery of the goods, the burden of giving monetary loss sustained lies of the present claim compensation. The said provision only provides that it shall be not be necessary for such claim to prove how the loss, destruction, damage, deterioration or non-delivery of the goods was caused. Therefore, if the claimant i.e. the petitioner herein can successfully prove or establish that the BG wagons had arrived without seal and that all doors were in open condition and if the petitioner can prove entrustment of goods, it was not envisaged under section 110 of the Railway Act that the petitioner should also prove how the loss, destruction, damage, deterioration or non-delivery of the goods was caused. Hence, the petitioner was required to disclose to the Railway Administration about the condition in which the wagons had arrived at the first available opportunity.

18) Accordingly, this Court is of the considered opinion that it could not be shown that there was an incorrect appreciation of law while delivering the impugned judgment and order. As already indicated above, the review petition does not indicate that there was any error apparent on the face of record or that the review was occasioned because of new materials which was not available earlier despite exercise of due diligence.

19) Accordingly, this review petition stands dismissed. However, there shall be no order as to cost.