# Bharat Petroleum Corp. Ltd v. U.O.I

- **Citation:** (2023) 9 ILRA 1129
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-19
- **Case number:** First Appeal From Order No. 49 of 2018
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bharat-petroleum-corp-ltd-v-u-o-i-50741
- **Pages:** 23

## Headnote

Civil Law-The Railways Act, 1989Sections 93,94 & 97 -The Indian
Evidence Act, 1872, Sections 101 &
102--- Railway Administration would not
be responsible for any loss, destruction,
damage, deterioration or non-delivery in
transit, of any consignment from whatever
cause arising, except upon proof, that such
loss, destruction, damage, deterioration or
non-delivery was due to negligence or
misconduct on its part or on the part of
any of its servants--- Plaintiff can succeed
only on the strength of his own case and
not on the weakness of defense--- The
petroleum product was loaded by BPCL at
its siding and thereafter the Railway issued
the receipt(s) bearing remark(s) 'S/C' (said
to
contain),
'SWA'
(Sender's
Weight
Accepted)
as
also
'loading
was
not
supervised by Railway Staff' and 'Joint Dip
Certificate(s)' also indicates the Railway as
per Section 94 of the Act of 1989 is not
responsible for any loss and as such, it
was the duty of the BPCL to prove by
adducing appropriate evidence that (i) the
petroleum
product/consignment
was
properly
loaded;
(ii)
quantity
was
appropriate as indicated in the receipt(s)
and (iii) was got damaged on account of
some misconduct or negligence on the part
of the Railway or its servants---The BPCL,
in all the case(s), failed to establish its
claim as also the negligence of Railway
Administration. (Para 37, 38 & 39)

Appeals dismissed. (E-15)
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

_Characters 0–39,902 of 78,621. This is a partial read: ask again with offset=39902 for what follows._

9 All. Bharat Petroleum Corp. Ltd. Vs. U.O.I.
1129
duty of an arbitral institution for reference
to the Arbitral Tribunal. Therefore, it
would be wrong to accept that post
omission of sub-section (6-A) of Section 11
the ratio in Patel Engg. Ltd. [SBP & Co. v.
Patel Engg. Ltd., (2005) 8 SCC 618] would
become applicable."

E:- Conclusions:-

61. For the detailed discussions, this
Court finds that the issue for the Referral
Court, at least is to see whether the the
correct party has approached the correct
High Court for invocation of an Arbitration
Clause which is existing and binding on the
parties and the disputes are covered by the
said agreement. To examine the same the
Court shall apply the prima facie test and
drawing
strength
from
the
aforesaid
decision of the Apex Court in Vidya Drolia
(supra) prima facie this Court comes to an
inescapable conclusion that the petition has
been filed by one member of the
Consortium only without impleading the
other
Consortium
members
including
against whom allegations have been
levelled and the said allegations are prima
facie indicative of disputes inter-se the
Consortium members which may not be
referrable for arbitration.

62.

For
the
detailed
reasons
hereinabove and in the humble opinion of
this
Court,
such
a
petition
is
not
maintainable at the behest of the petitioner
alone for the nature of disputes so raised.
Consequently, the petition is dismissed.
Costs are made easy.
----------
(2023) 9 ILRA 1129
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.09.2023

BEFORE
THE HON'BLE SAURABH LAVANIA, J.

First Appeal From Order No. 49 of 2018
alongwith other connected cases

Bharat Petroleum Corp. Ltd. ...Appellant
Versus
U.O.I. ...Respondent

Counsel for the Appellant:
Sm Singh Royekwar, Mohammad Ehtesham
Khan

Counsel for the Respondents:
Arun Kumar Verma, Neerav Chitravanshi

Civil Law-The Railways Act, 1989Sections 93,94 & 97 -The Indian
Evidence Act, 1872, Sections 101 &
102--- Railway Administration would not
be responsible for any loss, destruction,
damage, deterioration or non-delivery in
transit, of any consignment from whatever
cause arising, except upon proof, that such
loss, destruction, damage, deterioration or
non-delivery was due to negligence or
misconduct on its part or on the part of
any of its servants--- Plaintiff can succeed
only on the strength of his own case and
not on the weakness of defense--- The
petroleum product was loaded by BPCL at
its siding and thereafter the Railway issued
the receipt(s) bearing remark(s) 'S/C' (said
to
contain),
'SWA'
(Sender's
Weight
Accepted)
as
also
'loading
was
not
supervised by Railway Staff' and 'Joint Dip
Certificate(s)' also indicates the Railway as
per Section 94 of the Act of 1989 is not
responsible for any loss and as such, it
was the duty of the BPCL to prove by
adducing appropriate evidence that (i) the
petroleum
product/consignment
was
properly
loaded;
(ii)
quantity
was
appropriate as indicated in the receipt(s)
and (iii) was got damaged on account of
some misconduct or negligence on the part
of the Railway or its servants---The BPCL,
in all the case(s), failed to establish its
claim as also the negligence of Railway
Administration. (Para 37, 38 & 39)

Appeals dismissed. (E-15)
1130 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. FAFOD No.182 of 2003 (U.O.I.Vs M/s Indian
Oil Corporation)

2. FAO No.249 of 2019 (U.O.I.Vs M/s Steel
Authority of India Limited)

3. U.O.I.Vs Aluminium Industries Limited,
MANU/OR/0040/1987

4. U.O.I.Vs Steel Authority of India Ltd.;
MANU/AP/1039/2004

5.
U.O.I.Vs
Jugal
Kishore
Khandelwal;
MANU/OR/0026/1988

6. U.O.I.Vs Aluminium Industries Ltd.; AIR 1987
Ori 149

7. FAO No. 225 of 2013 (Steel Authority of India
Limited Vs U.O.I.), MANU/DE/6299/2017

8. First Appeal No. 309 of 1999 (M/s Hindustan
Petroleum
Corporation
Ltd.
Vs
U.O.I.);
MANU/MH/0223/2004

9. Kanhaiya Bhalotia Vs U.O.I.; 2013 SCC
OnLine Pat 506

(Delivered by Hon'ble Saurabh Lavania, J.)

1. As the issue involved in all
these appeal(s), broadly, is similar as
such with the consent of the learned
counsel for the parties, the same are
being decided by this common order.

2. Heard Sri M.E. Khan alongwith
Sri Shashank Mishra, learned Counsel
for the appellant and Sri Arun Kumar
Verma as also Sri Mahendra Kumar
Mishra,
learned
Counsel
for
the
respondent-Railway.

3. All the appeal(s), indicated
above, were filed by Bharat Petroleum
Corporation Limited (in short "BPCL"),
under Section 23 of The Railway
Claims Tribunal Act, 1987 (in short
"Act
of
1987"),
challenging
the
award(s) passed by the Railway Claims
Tribunal
(in
short
"Tribunal"),
at
Lucknow in the case(s) detailed here
under:-

Sl.
No.
Case
No.
Parties
Name
Amo
unt
Clai
med
Dismiss
ed On
1.
OA/I/0
4/09
BPCL vs.
Union Of
India
Rs.1
0,19,
849/
-
06.10.2
017
2.
OA/I/0
7/09
BPCL vs.
Union Of
India
Rs.1,
65,4
52/-
25.11.2
016
3.
OC/I/1
0/2010
BPCL vs.
Union Of
India
Rs.3,
54,0
10/-
25.08.2
017
4.
OA/I/3
2/2012
BPCL vs.
Union Of
India
Rs.1,
88,6
26/-
15.09.2
017
5.
OA/I/3
3/2012
BPCL vs.
Union Of
India
Rs.1,
58,4
51/-
15.09.2
017
6.
OA/I/0
3/14
BPCL vs.
Union Of
India
Rs.4,
32,2
79/-
04.11.2
016
7.
OC040
0030
BPCL vs.
Union Of
India
Rs.1,
35,1
00/-
01.12.2
016
8.
OC040
0045
BPCL vs.
Union Of
India
Rs.3,
41,5
42/-
21.04.2
017

4. In all the case(s), indicated above,
the Tribunal dismissed the claim petition(s)
preferred by BPCL.
9 All. Bharat Petroleum Corp. Ltd. Vs. U.O.I.
1131

5. It would be apt to refer that all the
appeals
were
filed
along
with
the
application(s) for condonation of delay
duly supported with an affidavit and after
taking note of the facts and circumstances
indicated therein, this Court condoned the
delay and now all the appeals can be heard
and decided on merits. The relevant record
of the Tribunal pertaining to the case(s)
indicated above is also available.

6. The relevant facts, in brief, related to
all the appeals are to the effect that the BPCL
loaded the consignment/petroleum product
from its siding meaning thereby the petroleum
product, which is subject matter of all the
appeal(s), was not loaded at a siding belonging
to Railway Administration and undisputedly at
the time of loading of petroleum product in the
wagon(s), no Goods Clerk or any other Staff
of Railway Administration was present for
tallying or supervising the petroleum product
loaded in the wagon(s) and the petroleum
product loaded by BPCL was unloaded at a
siding of BPCL and just prior to unloading of
the same, at the request of BPCL, the 'Joint
Dip Certificate(s)' were prepared and as per
these Certificate(s), the shortage was found in
petroleum product loaded in the wagon(s) by
BPCL at its siding.

7. In all the 'Joint Dip Certificate(s)',
it has been indicated that "RA 1989, AR94-(2), RLY not responsible for any
shortage".

8. It would be apt to refer that the
Railway receipt(s) related to claim(s), in
issue, were issued to BPCL with remark(s)
namely 'S/C' (said to contain), 'SWA'
(senders' weight accepted) and 'loading not
supervised by Railway Staff'.

9. It would also be apt to take note
that the BPCL has not stated that the
receipt(s)
issued
by
Railway
Administration to BPCL were not with
remark(s) namely 'S/C' (said to contain)
SWA (senders' weight accepted), 'loading
not supervised by Railway staff' as also
remark on 'Joint Dip Certificate(s)' before
the Tribunal.

10.

In
the
aforesaid
factual
background,
claim
petition(s),
cases
indicated above, were filed on the basis of
'Joint Dip Certificate(s)'.

11. In support of the pleas taken, the
BPCL adduced the evidence by way of
affidavit(s) except in one Case i.e. Case
No.OC0400030.

12. The affidavit(s) of evidence were
not filed by a responsible person present at
the siding of the BPCL fromwhere the
petroleum product was loaded in the
wagon(s) and which was subsequently
delivered at the place indicated by BPCL
and this aspect of the case can be taken
note of from the following details:-

(i)
In
Case
No.OA/I/04/09,
the
affidavit of evidence was filed by Sri
Baldev, Senior Assistant-Claims at the
Office
of
General
Manager,
Bharat
Petroleum
Corporation
Ltd.,
Regional
Office at Plot No. 5 & 6, Sector-1, Noida,
U.P.

(ii) In Case No.OA/I/07/09, the
affidavit of evidence was filed by Sri
Baldev, Assistant-Claims at the Office of
General
Manager,
Bharat
Petroleum
Corporation Ltd., Regional Office at Plot
No. 5 & 6, Sector-1, Noida, U.P.

(iii) In Case No.OC/I/10/2010, the
affidavit of evidence was filed by Sri
Baldev, Senior Assistant-Claims at the
Office
of
General
Manager,
Bharat
Petroleum
Corporation
Ltd.,
Regional
1132 INDIAN LAW REPORTS ALLAHABAD SERIES
Office at Plot No. 5 & 6, Sector-1, Noida,
U.P.

(iv) In Case No.OA/I/32/2012, the
affidavit of evidence was filed by Sri
Baldev, Senior Assistant-Claims at the
Office
of
General
Manager,
Bharat
Petroleum
Corporation
Ltd.,
Regional
Office at Plot No. 5 & 6, Sector-1, Noida,
U.P.

(v) In Case No.OA/I/33/2012, the
affidavit of evidence was filed by Sri
Baldev, Senior Assistant-Claims at the
Office
of
General
Manager,
Bharat
Petroleum
Corporation
Ltd.,
Regional
Office at Plot No. 5 & 6, Sector-1, Noida,
U.P.

(vi) In Case No.OA/I/03/14, the
affidavit of evidence was filed by Sri
Baldev, Senior Assistant-Claims at the
Office
of
General
Manager,
Bharat
Petroleum
Corporation
Ltd.,
Regional
Office at Plot No. 5 & 6, Sector-1, Noida,
U.P.

(vii) In Case No.OC0400030, the
affidavit of evidence of BPCL was not
filed.
(viii) In Case No.OC0400045, the affidavit
of evidence was filed by Sri Baldev, Senior
Assistant-Claims at the Office of General
Manager, Bharat Petroleum Corporation
Ltd., Regional Office at Plot No. 5 & 6,
Sector-1, Noida, U.P.

13. The claim of the BPCL in all the
claim petitions was opposed by the
Railway before the Tribunal. It appears
from the record available before this Court
that the Railway based upon the provisions
of The Railways Act, 1989 (in short "Act of
1989") and remark(s) upon the railway
receipt(s) as also 'Joint Dip Certificate(s)'
opposed the claim(s) of BPCL and based
upon the same the Railway stated that there
is
no
liability
on
the
Railway
Administration. Stand of Railway before
the Tribunal was to the effect that the
petroleum product was not loaded at a
siding of Railway and the loading was not
supervised by the Goods Clerk/Staff of
Railway and was required to be delivered
by the Railway Administration at a siding
not belonging to Railway Administration
and accordingly, the Railway, as per law,
shall not be responsible for any loss of such
consignment for whatever cause arising
after
the
wagon(s)
containing
the
consignment has been placed at the
specified point of interchange. The Railway
denied the claim(s) of the BPCL by saying
that the loading, sealing and tightening of
the valves etc. is always done by the BPCL
or its servants at the siding belonging to
BPCL and the Railway receipt(s) were
issued with remark(s) i.e. 'S/C' ('said to
contain'),
'SWA'
('senders'
weight
accepted') 'loading not supervised by the
Railway Staff' and as such a conjoint
reading of relevant provisions of the Act of
1989 and these remark(s) make the point
crystal clear that the Railway would not be
responsible for any loss, if any, occurred
during transshipment/transportation.

14. Taking note of the facts that the
petroleum product was loaded by BPCL at
a
siding
not
belonging
to
Railway
Administration for carriage by Railway and
Goods Clerk or any other Staff for tallying
or supervising petroleum product loaded by
BPCL in the wagon(s) was not deputed by
the Railway at the siding of BPCL as also
the relevant provisions of the Act of 1989
and remark(s) on the receipt(s) and 'Joint
Dip Certificate(s)', the Tribunal rejected the
claim of the BPCL, as appears from the
order(s), under appeal(s).

15. For causing interference in the
order(s),
under
appeal(s),
Mohammad
Ehtesham Khan, learned counsel appearing
9 All. Bharat Petroleum Corp. Ltd. Vs. U.O.I.
1133
for
the
appellant/Bharat
Petroleum
Corporation Ltd. stated that the Tribunal
failed to consider and appreciate the
relevant provisions i.e. Sections 93, 94 and
110 of the Act of 1989 in its true spirit
while rejecting the claim of the BPCL. He
also submitted that the shortage of
petroleum product was apparent from the
'Joint Dip Certificate(s)' and the same was
due
to
mishandling,
negligence,
carelessness and misconduct on the part of
respondent and/or their servants/agents and
despite the same, the Tribunal rejected the
claim of the BPCL in utter arbitrary and
mechanical manner. The BPCL discharged
its burden of proof regarding shortage and
on
the
other
hand,
the
Railway
Administration failed to discharge its
burden of proof as required under Sections
93, 94 and 110 of the Act of 1989. Thus,
the order(s) are liable to be interfered with
and the appeal(s) are liable to be allowed
with a direction upon Railway to pay the
amount
claimed
in
claim
petition(s)
alongwith due interest.

16. In support of his submission, Sri
Khan placed reliance on the judgment
passed by the Delhi High Court in FAO
No.249 of 2016 (Union of India Vs. M/S
Steel Authority of India Ltd.) decided on
12.01.2018 and the judgment by this Court
in First Appeal From Order Defective
No.182 of 2003 (Union of India Vs. M/S
Indian
Oil
Corporation)
decided
on
14.02.2013.

17. Opposing the appeal(s), Sri Arun
Kumar Verma and Sri Mahendra Kumar
Mishra, learned counsel appearing for the
Railway stated that before the Tribunal all
the claim petition(s) were opposed by filing
written statement(s) and in support of pleas
taken
in
written
statement(s),
the
affidavit(s) of evidence were also filed in
some cases. A conjoint reading of pleas
taken in written statement(s) as also the
relevant provisions of the Act of 1989 and
remark(s) on the 'Joint Dip Certificate(s)'
and on the Railway receipt(s) would show
that no liability can be fastened on the
Railway Administration.

18. Further stated that no doubt as per
'Joint Dip Certificate(s)', the material,
which was loaded by the BPCL in the
tank(s)/wagon(s)
was
not
found
appropriate. However, the fact remains that
the consignor namely BPCL loaded the
material at a siding belonging to BPCL and
receipt(s) therefor were issued under
qualified remark(s) namely 'S/C' (said to
contain),
'SWA'
(Sender's
Weight
Accepted), 'loading not supervised by
Railway staff' and in view of said remark(s)
as also the remark(s) on the 'Joint Dip
Certificate(s)', which was accepted without
any protest, more particularly the remark
'As per RA 1989 AR 94(II) Rly is not
responsible for any shortage', the Railway
is not responsible for any shortage or loss
and being so, the Tribunal rightly rejected
the claim of the BPCL and being so the
order(s) impugned passed by the Tribunal
are not liable to be interfered with by this
Court.

19. Learned counsel appearing for the
Railway placed reliance on the following
judgments:-

(i) Union of India Vs. Jugal Kishore
Khandelwal : AIR 1988 Orissa 113;

(ii) Union of India Vs. Steel Authority
of India Ltd. : (2004) 12 AP CK 0115;

(iii) Union of India Vs. Aluminium
Industries Limited : 1986 LawSuit (Ori) 79;

(iv) Steel Authority of India Limited
Vs.
Union
of
India
:
reported
in
2017:DHC:4760.
1134 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Considered the submissions made
by the learned counsel for the parties and
perused the record.

21. In the aforesaid background of the
case, the issue before this Court is to the
effect that as to 'Whether the claim(s) of the
BPCL, in the case(s) indicated above based
upon the 'Joint Dip Certificate(s)', were
rightly rejected by the Tribunal'.

22. In order to come to the conclusion
on the aforesaid issued involved in the
present appeal(s), this Court finds it
appropriate to refer certain provisions of
the Act, 1989 and the relevant paragraph of
the Indian Railway Commercial Manual,
which have been indicated.

"Relevant provisions of Railway Act,
1989

Section 62. Conditions for receiving,
etc., of goods.

(1) A railway administration may
impose conditions, not inconsistent with
this Act or any rules made thereunder, with
respect to the receiving, forwarding,
carrying or delivering of any goods.

(2) A railway administration shall
maintain, at each station and at such other
places where goods are received for
carriage, a copy of the conditions for the
time being in force under sub-section (1)
and make them available for the reference
of any person during all reasonable hours
without payment of any fee.

Section 63. Provision of risk rates.

(1) Where any goods are entrusted to a
railway administration for carriage, such
carriage shall, except where owner's risk
rate is applicable in respect of such goods,
be at railway risk rate.

(2) Any goods, for which owner's risk
rate and railway risk rate are in force, may
be entrusted for carriage at either of the
rates and if no rate is opted, the goods
shall be deemed to have been entrusted at
owner's risk rate.

Section 64. Forwarding note.-

(1) Every person entrusting any goods
to a railway administration for carriage
shall execute a forwarding note in such
form as may be specified by the Central
Government:

Provided that no forwarding note shall
be executed in the case of such goods as
may be prescribed.

(2) The consignor shall be responsible
for the correctness of the particulars
furnished by him in the forwarding note.

(3) The consignor shall indemnify the
railway administration against any damage
suffered by it by reason of the incorrectness
or incompleteness of the particulars in the
forwarding note.

Section 65. Railway receipt.-

(1) A railway administration shall,-

(a) in a case where the goods are to be
loaded by a person entrusting such goods,
on the completion of such loading; or

(b) in any other case, on the
acceptance of the goods by it, issue a
railway receipt in such form as may be
specified by the Central Government.

(2) A railway receipt shall be prima
facie evidence of the weight and the
number of packages stated therein:

Provided that in the case of a
consignment in wagon-load or train-load
and the weight or the number of packages
is not checked by a railway servant
authorized in this behalf, and a statement
to that effect is recorded in such railway
receipt by him, the burden of proving the
weight or, as the case may be, the number
of packages stated therein, shall lie on the
consignor, the consignee or the endorsee.

Section:73
Punitive
charge
for
overloading a wagon.
9 All. Bharat Petroleum Corp. Ltd. Vs. U.O.I.
1135

Where a person loads goods in a
wagon beyond its permissible carrying
capacity as exhibited under sub-section (2)
or sub-section (3), or notified under subsection (4), of section 72, a railway
administration may, in addition to the
freight and other charges, recover from the
consignor, the consignee or the endorsee,
as the case may be, charges by way of
penalty at such rates, as may be prescribed,
before the delivery of the goods:

Provided that it shall be lawful for the
railway administration to unload the goods
loaded beyond the capacity of the wagon, if
detected at the forwarding station or at any
place before the destination station and to
recover the cost of such unloading and any
charge for the detention of any wagon on
this account.

Section 78. Power to measure, weigh,
etc.

Notwithstanding anything contained in
the
railway
receipt,
the
railway
administration may, before the delivery of
the consignment, have the right to-

(i) re-measure, re-weigh or re-classify
any consignment;

(ii) recalculate the freight and other
charges; and

(iii) correct any other error or collect
any amount that may have been omitted to
be charged.

Section
79.
Weighment
of
consignment on request of the consignee
or endorsee.

A railway administration may, on the
request made by the consignee or endorsee,
allow weighment of the consignment
subject to such conditions and on payment
of such charges as may be prescribed and
the demurrage charges if any:

Provided that except in cases where a
railway servant authorised in this behalf
considers it necessary so to do, no
weighment shall be allowed of goods
booked at owner's risk rate or goods which
are perishable and are likely to lose weight
in transit:

Provided further that no request for
weighment of consignment in wagon-load
or train-load shall be allowed if the
weighment is not feasible due to congestion
in the yard or such other circumstances as
may be prescribed.

Section 93. General responsibility of
a railway administration as carrier of
goods.

Save as otherwise provided in this
Act, a railway administration shall be
responsible for the loss, destruction,
damage or deterioration in transit, or nondelivery of any consignment, arising from
any cause except the following namely:-

(a) act of God;

(b) act of war;

(c) act of public enemies;

(d) arrest, restraint or seizure under
legal process;

(e) orders or restrictions imposed by
the Central Government or a State
Government or by an officer or authority
subordinate to the Central Government or
a State Government authorised by it in this
behalf;

(f) act or omission or negligence of the
consignor or the consignee or the endorsee
or the agent or servant of the consignor or
the consignee or the endorsee;

(g) natural deterioration or wastage in
bulk or weight due to inherent defect,
quality or vice of the goods;

(h) latent defects;

(i) fire, explosion or any unforeseen
risk:

Provided that even where such loss,
destruction, damage, deterioration or nondelivery is proved to have arisen from any
one or more of the aforesaid causes, the
railway administration shall not be relieved
of its responsibility for the loss, destruction,
1136 INDIAN LAW REPORTS ALLAHABAD SERIES
damage, deterioration or non-delivery
unless the railway administration further
proves that it has used reasonable foresight
and care in the carriage of the goods.

Section 94. Goods to be loaded or
delivered at a siding not belonging to a
railway administration.-

(1) Where goods are required to be
loaded at a siding not belonging to a
railway administration for carriage by
railway, the railway administration shall
not be responsible for any loss, destruction,
damage or deterioration of such goods
from whatever cause arising, until the
wagon containing the goods has been
placed at the specified point of interchange
of wagons between the siding and the
railway administration and a railway
servant authorised in this behalf has been
informed in writing accordingly by the
owner of the siding.

(2) Where any consignment is required
to be delivered by a railway administration
at a siding not belonging to a railway
administration, the railway administration
shall not be responsible for any loss,
destruction, damage or deterioration or
non-delivery of such consignment from
whatever cause arising after the wagon
containing the consignment 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 accordingly by a
railway servant authorised in this behalf.

Section 97. Goods carried at owner's
risk rate.

Notwithstanding anything contained in
section 93, a railway administration shall
not be responsible for any loss, destruction,
damage, deterioration or non-delivery in
transit, of any consignment carried at
owner's risk rate, from whatever cause
arising, except upon proof, that such loss,
destruction, damage, deterioration or nondelivery
was
due
to
negligence
or
misconduct on its part or on the part of any
of its servants:

Provided that-

(a)
where
the
whole
of
such
consignment or the whole of any package
forming part of such consignment is not
delivered to the consignee or the endorsee
and such non-delivery is not proved by the
railway administration to have been due to
fire or to any accident to the train; or

(b) where in respect of any such
consignment or of any package forming
part of such consignment which had been
so covered or protected that the covering or
protection was not readily removable by
hand, it is pointed out to the railway
administration on or before delivery that
any part of that consignment or package
had been pilfered in transit,

the railway administration shall be
bound to disclose to the consignor, the
consignee or the endorsee how the
consignment or the package was dealt with
throughout the time it was in its possession
or control, but if negligence or misconduct
on the part of the railway administration or
of any of its servants cannot be fairly
inferred from such disclosure, the burden of
proving such negligence or misconduct
shall lie on the consignor, the consignee or
the endorsee."

Relevant
provisions
of
Indian
Railway Commercial Manual Volume II
are as under:-

1529. Loading and unloading of
goods in assisted or private sidings.-(a)
Where a Goods Clerk is posted in an
assisted private siding, and his wages and
other costs are paid for by the owner
thereof, the loading of goods will be
supervised and tallied by the Goods Clerk,
and railway receipts will be granted for the
specific number of packages loaded.
Similarly, unloading of inward goods will
9 All. Bharat Petroleum Corp. Ltd. Vs. U.O.I.
1137
be supervised and tallied by him (see Para
2513 also).

(b) Where no Goods Clerk is posted,
consignments loaded in an assisted private
siding will be booked at the serving station
in the same way as any other consignment.
However, since loading is not supervised by
the railway staff, and also in view of the
difficulty of making an accurate check of an
already loaded wagon, only a "said to
contain" receipt should be granted in such
cases, the receipt being endorsed 'Loading
not supervised by railway staff nor contents
checked.

1582. Transshipment of P. O. L.
traffic-(a) Where due to leakage, accident
or any other cause it becomes necessary to
transship the contents of a tank wagon,
loaded
with
petroleum
or
other
inflammable liquids, a fresh tank wagon of
suitable capacity should be arranged for
transshipment. The fresh lank must be of
the same type as the original tank to
obviate possibilities of damage. to the
consignment due to contamination.

(b) As the transshipment of such traffic
in tail wagons is required to be done by the
consignors [consignees, the senders should
be telegraphed to immediately arrange for
the attendance of their representative at the
time of transshipment. The responsibility to
take
all
precautions
during
the.
transshipment rests with the representatives
of oil companies. The station staff should,
however, give all necessary assistance to
the representative of the senders to cordon
off the area where transhipment is to be
done.

(c) A certificate of the transshipment
of such tank wagons is to be signed jointly
by the representative of the oil companies
and the Station Master in the form
prescribed for the purpose by the railway
administration which inter alia requires the
dip,
the
specific
gravity
and
the
temperature of the contents both before and
after the transhipment to be recorded on
the form. The Station Master should per
sonally verify the 'dip', etc. of the damaged
tank wagon before transhipment starts and
also of the fresh tank wagon before the
transhipment is completed. One copy of the
certificate, duly signed as above, should be
retained as station record.

(d) Other instructions regarding issue
of transhipment advice, etc. as laid down in
Para
1581
also
apply
in
case
of
transhipment of tank wagons containing
petroleum or other inflammable liquids.

1919. Goods Clerks at Depots or other
places, where specially provided will
witness the loading of railway materials
and stores. In such case, receipts for the
number of articles actually loaded should
be given to the despatching official. The
responsibility for tallying and weighing
such consignments and scaling and riveting
the wagons, where necessary, rests with the
station staff as for public traffic.

1920. At other places, however, where
Goods Clerks are not provided, wagon
containing railway materials and stores
loaded by Departments in their own
sidings,
will
be
sealed
and
riveted
independently by the depots concerned with
wagon seals of their own. Station staff will
grant 'said to contain receipts' at the
forwarding stations. The receipts should,
therefore, show "sealed and riveted by
sender said to contain......................."

1921. Outward books for railway
materials and stores.-Separate outward
books (see Para 2008), both for local and
through traffic, should be maintained for
recording the invoices of railway materials
and stores issued from the station. These
books should be posted daily from record
foil's of invoices, which should be entered
in the order of their issue, i.e., in the order
of their printed machine numbers.
1138 INDIAN LAW REPORTS ALLAHABAD SERIES

2515. (a) Where no separate Goods
Clerk is posted in a siding, the outward
consignments loaded in the siding will be
booked at the serving station in the same
way as any other consignment. However,
owing to the difficulty of making an
accurate check of an already loaded
wagon/vehicle, a 'said to contain' railway
receipt will be granted in all cases in which
such a check has not been exercised. In the
case of inward traffic, the book delivery
will be affected after collection of the
railway receipt and freight and other
charges due at the serving station before
file wagons are placed in the siding on at
the point of interchange, where prescribed.
The Goods Clerk will neither supervise the
loading
of
outward
goods
nor
the
unloading of inward goods.

(b) In no circumstances, should the
wagons be placed in the siding or on the
point of interchange, where prescribed,
unless the book delivery has been effected
and freight and other charges have been
collected at the serving station. In the event
of the siding user failing to affect book
delivery after the arrival of inward wagons
vehicles at the station within the time
provided for in the agreement, the usual
demurrage charges should be levied as
prescribed from time to time.

Note.-The
railway
administration
may permit placement of wagons without
effecting the book delivery and collecting
the freight and other charges due, in
specific cases, where it is not possible for
operational or other reasons to strictly
enforce the instruction contained in (b)
above. In such cases, it should be ensured
that there is no delay in affecting the book
delivery and collecting, the charges due
immediately after the wagons are placed in
the siding.

(c) Should space permit, the siding
user may be allowed the option of
unloading the goods at the station or in the
goods shed serving the siding. In such
cases, the wharfage charges should be
levied at the goods are not taken delivery of
and for removed within the free time
allowed for this purpose.

(d) Inward wagons/vehicles which
arrive at the serving station with defective
seals, cut-panels, etc. must not be placed in
the siding unless the contests are checked
at the station/goods shed."

23. What borne out from the above
quoted
statutory
provisions
including
Section 94 and Section 97 of the Act of
1989, which would be relevant for the
present case, are as under:-

(i) The consignor shall be responsible
for the correctness of the particulars
furnished by him in the forwarding note. It
is for the reason that the entries in
receipt(s) indicates 'F/Note' (forwarding
note). [Sub-section 2 of Section 64]

(ii) The burden of proving the weight
or, as the case may be, number of packages
stated therein, shall lie on the consignor, the
consignee or the endorsee if the weight or
number of packages is not checked by a
railway servant authorized in this behalf
and a statement to that effect is recorded in
such railway receipt. It is in view of the
fact that the receipt(s) containing remark
that the 'loading not supervised by the
railway staff' were issued by Railway.
[Sub-Section 2 of Section 65]

(iii) The act or omission or negligence
of the consignor or the consignee or the
endorsee or the agent or servant of the
consignor or the consignee or the endorsee
and natural deterioration or wastage in bulk
or weight due to inherent defect, quality or
vice of the goods are required to be
considered. [Sub-Section (f) and (g) of
Section 93]
9 All. Bharat Petroleum Corp. Ltd. Vs. U.O.I.
1139

(iv) Proviso to Section 93 indicates
that if the loss, destruction, damage,
deterioration or non-delivery is proved to
have arisen from any one or more of the
causes indicated under Section 93, the
Railway Administration shall not be
relieved of its responsibility for the loss,
destruction, damage, deterioration or nondelivery and thereafter the liability would
be on Railway Administration to prove that
it has used reasonable foresight and care in
the carriage of the goods. Thus, first
claimant has to prove its claim and
thereafter onus would be shifted on
Railway Administration.

(v) As per Section 94(2) where
consignment is required to be delivered by
a Railway Administration at a siding not
belonging to Railway Administration, the
Railway-Administration
shall
not
be
responsible for any loss, destruction,
damage or deterioration or non-delivery of
such consignment from whatsoever cause
arising after the wagon containing the
consignment has been placed at the
specified point of interchange of wagon
between the railway and the siding has
been informed in writing by the Railway
servant authorized in this behalf. It would
not be out of place to refer Section 94(1)
relates to goods loaded at a siding not
belonging to Railway-Administration.

(vi) Section 97 starts from nonobstante
clause.
It
says
that
notwithstanding anything contained in
Section 93, a railway administration shall
not be responsible for any loss, destruction,
damage, deterioration or nondelivery in
transit, of any consignment carried at
owners risk rate, from whatever cause
arising, except upon proof, that such loss,
destruction, damage, deterioration or nondelivery
was
due
to
negligence
or
misconduct on its part or on the part of any
of its servants. Proviso (b) to this Section
also indicates that if negligence or
misconduct on the part of the railway
administration or of any of its servants
cannot be fairly inferred from such
disclosure, the burden of proving such
negligence or misconduct shall lie on the
consignor, the consignee or the endorsee. In
this view of the matter, the burden to prove
the loss, destruction, damage, deterioration
or non-delivery on account of negligence or
mis-conduct of Railway staff is upon the
claimant.

(vii) Para 1529 of Indian Railway
Commercial Manual Volume II particularly
Sub Para (b) indicates that if loading is not
supervised by the railway staff then in that
eventuality the receipt containing remark
'said to contain' should be issued with
further endorsement that 'loading not
supervised by Railway Staff nor contents
checked'.

(viii) Para 1920 also indicates that
where Goods Clerks are not provided the
station staff will grant 'said to contain
receipts' at the forwarding stations.

(ix) Sub-Para (a) of Para 2515 also
indicates in the same tune. As per this para,
where no separate Goods Clerk is posted in
a siding, it is very difficult to make an
accurate check of an already loaded
wagon/vehicle, a 'said to contain' railway
receipt will be granted in all cases. The
Goods Clerk will neither supervise the
loading nor unloading of any goods.

24. Now coming to the judgment(s)
on which reliance has been placed by the
learned counsel for the parties.

25. In the judgment dated 12.01.2018
passed in FAO No.249 of 2019 (Union of
India vs. M/s Steel Authority of India
Limited), the Delhi High Court dismissed
the appeal challenging the order of the
Railway Claims Tribunal. This judgment
1140 INDIAN LAW REPORTS ALLAHABAD SERIES
was passed by the Delhi High Court after
taking note of the facts which are to the
effect that the 8 Packets of Hot Rolled
Sheets (HR Sheets) were booked under the
Railway Receipt dated 18.11.2008 and the
same were checked by RPF staff on
19.11.2008 and again on 24.11.2008 and
RPF staff recorded that wagon contained 8
Bundles of HR Sheets and thereafter on
28.11.2008 at the destination only 5 packets
of HR Sheets were found and also that
wagon handed over to Railway on
19.11.2008 remained in the custody of
Railway and was not taken back to the
plant.

26. From the judgment of Delhi High
Court it is apparent that the claimant before
the Tribunal namely M/s Steel Authority of
India Ltd. proved its case that 8 bundles of
HR Sheets were handed over to the
Railway and therefore the Tribunal passed
the order in favour of claimant and the
same was affirmed by the Delhi High
Court.

27. In the judgment dated 14.02.2013
passed in FAFOD No.182 of 2003 (Union of
India vs. M/s Indian Oil Corporation), this
Court while dismissing the appeal of Railway
and affirming the order of Tribunal, which
was favourable to Indian Oil Corporation,
observed that "the dip measurement was
taken jointly by the staff of the respondents
and Railways and thereafter, the Railway's
receipt was issued mentioning the quantity
of goods to be transported. The transit risk
was of the Railways" and thereafter
observed that "Section 94 would not apply
in the instant case. Thus, in this case also the
claimant proved its case regarding quantity
which was loaded and was handed over to
the Railways for transportation to the
destination mentioned in the Railway
receipt.

28. In the judgment passed in the case
of Union of India vs. Aluminium
Industries
Limited,
MANU/OR/0040/1987; the High Court of
Orissa, after considering the fact that
claimant examined only one witness
namely Claims Assistant dealing with the
Railway consignments and claims of the
claimant's company and this witness in the
statement stated that "he has no idea about
the actual loading of the wagon at the
consignor's siding at Renukoot" as also that
he admitted that the place of loading was at
a
siding
not
belonging
to
Railway
Administration but to the consignor,
allowed the appeal and interfered in the
order of Tribunal, which was favourable to
the claimant company. Relevant paras of
the same are as under:-

"6. The onus is on the plaintiffcompany to establish as to what quantities
had actually been booked at the forwarding
station. The consignment had been booked
at the consignor's own siding and there is
absence of evidence from the side of the
plaintiff and there has been no admission
from the side of the defendant that loading
had been done with the supervision of the
railway staff.

7.
The
case
reported
in
MANU/NA/0101/1949 : AIR 1950 Nag 85,
Dominion of India v. Firm Museram
Kishunprasad
Melonigunj,
Jubbalpore
dealt with Rules 15 and 22, Railway Goods
Tariff General Rules. It was held :

"Further there is no proof in this case
that 255 bags were in fact loaded.
According to Rule 22 of the Goods Tariff
General Rules then in force cocoanuts were
required to be loaded and unloaded by
senders and consignees when in wagon
loads. It is nowhere stated or proved by the
plaintiff that the bags were loaded by
railway
servants
or
that
they
had
9 All. Bharat Petroleum Corp. Ltd. Vs. U.O.I.
1141
opportunity to verify the number. The
wagon was placed at the service of the
consignor and the number stated was
accepted as correct for the purpose of
charging freight.