Union of India vs Indian Oil Corporation Ltd.

Anjani Kumar Mishra, J. - Heard Shri Praveen Kumar Srivastava, learned counsel for the appellant.

This FAFO is directed against the order dated 04.04.2016 as well as the order dated 18.08.2015 passed by Railway Claim Tribunal Gorakhpur Bench, Gorakhpur in Case No. OA/01/120/2000/G.D.

Facts of the case briefly stated are that the opposite party booked a tank Wagon bearing No. CR 45608 from Budge Budge to Gonda on 01.03.1997 with top and bottom seals. The said tank wagon was discovered at destination in leaking condition and joint dip certificate was issued which revealed short delivery of 23775 ltrs. of high speed diesel.

The Railway accepted the booking but denied its liability to pay for any shortage on the ground that the wagon had been placed in the siding of the respondent on 06.03.1997 at 16:00 hours while the joint dip was done on 07.03.1997 at 16:30 hours.

It was, therefore, the case of Railways that the wagon had remained in the custody of the respondent for 24 hours and, therefore, it could not be held that the shortage had occurred on account of the careless and negligence of the Railway Administration.

Initially vide order dated 03.11.2009 the claim was rejected. Subsequently on a review application filed by the respondent, the order was recalled on 18.08.2015. This was so done because the Tribunal noticed that on account of inadvertence, certain evidence in the form of the joint dip certificate, had been ignored. It, therefore, recalled its order fixing a date for hearing. Thereafter by the order dated 04.04.2016 the claim has been allowed. The Railways have been directed to pay Rs. 1,63,718 along with 6% interest from the date of filing of the case till actual payment, for the lose caused to the respondent.

It has further been provided that in the case the payment is not made within the three months the interest payable on the amount of damages would be calculated @ 9% from the order of default till actual payment.

The contention of learned counsel for the appellant is two fold. First contention is that the review application was wrongly allowed. The order dated 03.11.2009, rejecting the claim respondent, suffered from no error apparent on the face of the record. The same, therefore, could not have been recalled. In support of his contention reliance has placed on the judgements in Union of India v. M/s I.B.P. Co. Ltd., Chennai : AIR 2005 Andhra Pradesh 179, Inderchand Jain v. Moti Lal: (2009) 14 SCC 663, as also unreported judgment in review application no. 195396 of 2016 in Second Appeal No. 171 of 2001: Om Prakash Sahu @ Munnu Lal v. Satya Prakash Sahu @ Dhunni Lal.

The second contention of learned counsel for the appellant is that the wagon in question had been placed in the siding of the opposite parties, Indian Oil Corporation, at 16:00 hours on 06.03.1997. The joint dip certificate is dated 07.03.1997 and was prepared at 16:30 hours. Relying upon Section 94 of the Railways Act 1989 it is submitted that sub-section (2) of Section 94 provides that a consignment, required to be delivered at a siding, not belonging to the Railways, the Railway Administration shall not be responsible for any loss, destruction, damages etc. of such consignment, once it has been placed at the specified point of interchange of wagons, between the railway and the siding and the owner of the siding has been informed, in writing.

I have considered the submission made by the learned counsel for the appellant and perused the record.

The first question for consideration is whether the order dated 03.11.2009 rejecting the claim of the Indian Oil Corporation could have been reviewed on a review application.

The judgement cited by the appellant especially the judgement in the case of Inderchand Jain (supra) provides that an application for review lies, when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. The same has also been held in the other judgment cited.

In this connection, it would also be relevant to refer to Order 47, Rule 1 CPC which provides that a review can be filed by a person who discovers new and important matter or evidence which was not within his knowledge or could not be provided by him at the time of hearing or at the order was made, despite exercise of due diligence. It is, therefore, clear that a review is permissible on the basis of evidence which has come to the notice of the party seeking review after the order was passed, provided he is able to establish that such evidence was not within his knowledge despite such party having been duly diligent.

In the case at hand, the review application was allowed by the Tribunal on the finding that material evidence, already available on record, had not been taken note of while passing the order under review. This, in my considered opinion, was a valid and legal ground for allowing the review application.

The contention of the learned counsel for the appellant that the order dated 3.11.2009 did not suffer an error apparent on the face of the record, therefore, cannot be accepted. The order dated 18.07.2015 setting aside the order dated 03.11.2009 on the review application of the Indian Oil Corporation, claimant-respondent, cannot be faulted with.

The only other point that survives for consideration is whether the joint dip certificate prepared almost 24 hours after the wagon in question had been placed in the siding of the Indian Oil Corporation could be relied upon and be made, basis of the order allowing the claim of the Indian Oil Corporation.

It would be relevant to note the evidence which is available in this regard. It is not in dispute that wagon in question was booked from Budge Budge to Gonda on 01.03.1997 showing a dip of 187.8 cm. It was admitted by the Railways that the wagaon contained 24310 liters. of high speed diesel. Freight from this amount was charged at the time of booking. The top and bottom valves of the wagon were shown as sealed. When the wagon was received on 06.03.1997 the top and bottom seals were found missing and there was heavy leakage from the bottom. The claimant respondent, therefore, made a demand for a joint dip at 16:00 hours the same day. The Railway authorities carried out the joint dip on 07.03.1997 at 16:30 hours.

Not only is there total absence of any reason for this inordinate delay in carrying out the joint dip, at the same time liability for short supply is sought to be avoided on the ground that the joint dip was carried out in the siding of the Indian Oil Corporation, after a lapse of almost 24 hours. This stand of the Railway Administration, in my considered opinion, cannot be accepted. The claimant respondent was prompt in raising the demand for a joint dip but the issue was addressed by the Railway authorities with inordinate delay. No explanation for this inordinate has been furnished either before the Tribunal or before this Court.

The appellant is, therefore, not entitled to any benefit under Section 94 of the Railways Act.

In view of the above discussion, the order impugned in the FAFO suffers from no illegality, warranting interference.

The FAFO is accordingly dismissed.