M/s. Royal Marketing Agencies vs. The Asst. Commissioner of Income Tax

Page No.# 1/19 GAHC010130382013

2025:GAU-AS:8856

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MFA/85/2013 M/S. SUNRISE TRADERS FANCY BAZAR, H.B.ROAD, GUWAHATI, ASSAM, PIN-781001. VERSUS UNION OF INDIA GM, NF RLY MALIGAON, GUWAHATI, ASSAM, PIN-781011. Advocate for the Petitioner : MR.B MAHESHWARI, MR. DIVYANSH RATHI,MR. K P MAHESWARI,MR.K P MAHESWARI,MR.A GOYAL Advocate for the Respondent : SC, NF RLY, MR.A K SARKAR,MS.M CHATTERJEE,MS.U CHAKRABORTY,MSK KALITA,MS.M PHUKAN

BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND Date of Hearing : 06.03.2025.

Date of Judgment : 27.06.2025.

JUDGMENT AND ORDER(CAV) 1. The appellant in this case is M/s Sunrise Traders and the respondent is The

Page No.# 2/19 Union of India represented by the General Manager, NF Railway. 2. Heard learned counsel Mr. D. Rathi for the appellant and learned Special Senior Railway Advocate, Ms. U. Chakrabarty for the respondent. 3. The appellant's case in brief is that on 21.05.2010, by Invoice No. 118, and Railway receipt No. 212051816, 883 packets of potatoes weighing 45 kgs each were booked from (Delhi Kishanganj) DKZ to (New Gauhati) NGC. At destination, it was found that the potatoes in the packets were damaged and rotten and unfit for human and animal consumption. The potatoes got damaged owing to the delay in delivery and the respondent was thus liable to pay compensation. Moreover, Railways collected Rs. 9,500/- towards demurrage charge and the appellant is entitled to realize the demurrage charges from the respondent. 883 packets containing 4 quintals of potatoes were valued at Rs. 1,200/- per quintal and the respondent is thus liable to pay a compensation of Rs. 4,80,000/-. 4. On finding the potatoes in utterly damaged condition, the appellant submitted their claim for non-delivery of goods vide the claim letter dated 03.06.2010 enclosing the original Railway receipt to the Office of the G.M. (Claim), N.F. Railway and the same was acknowledged by the Railways vide letter dated 09.06.2010. Reminders were also sent for tracing the goods to the Railways vide letters dated 14.06.2010 and 21.06.2010. The information about the arrival of the goods was received after about 40 days of transit. The appellant/applicant then vide letter dated 29.06.2010 requested the Railways to return the original RR to enable them to take delivery of the goods at destination point with instructions to the goods clerk for delivery of goods free of DC and on proper assessment of damages, the Railways returned the RR vide Railway letter dated 29.06.2010 without any instructions to CGS/NGC about

Page No.# 3/19 delivery of goods free of DC and for assessment of loss for the damaged goods. 5. Finally, the Railways granted delivery and loss assessed by a team of Railway Officers vide the assessment report certificate dated 01.07.2010 and it was reported that on visual examination by DCM/GHY and Food Inspector/NGC, Food Inspector who certified that 883 bags of rotten potatoes were found in damaged condition and unfit for human and cattle consumption, vide letter L/H/7/F.1/10 dated 01.07.2010. On the contrary, the Railways forced the applicant to pay Rs. 9,500/- which was paid vide MR No. 882269 dated 04.07.2010. As the DC collected by the Railways was utterly illegal, the applicants have claimed Rs. 4,80,000/- + Rs. 9,500/- = Rs. 4,89,500/- on account of the negligence and misconduct of the Railway authorities. 6. The respondents filed written objection contending inter alia that the validity of service and sufficiency of notice under Section 106 of the Railways Act is not admitted by the respondent as the amended claims notice dated 12.07.2010 was served by an individual who affixed his initials only on behalf of the claimants, Sunrise Traders without any power of attorney. It is averred that the demurrage charges were correctly realized. 7. It is argued on behalf of the Railways that the consignment was booked by the sender at Forwarding station under the remarks in the Railway receipt as:- "Wagon directly examined, found fit and water tight, train load conditions complied with, loaded direct from truck to wagon and loading not supervised by Railway staff, Bags not of uniform size, conditions of contents not checked by Railway staff, “said to contain” packaging condition outer knot, OR" 8. Learned counsel for the respondents laid stress in her argument that the consignment was booked and loaded at the “owner's risk” rate under Section 97

Page No.# 4/19 of the Railways Act, and as such the respondent is not liable to pay any compensation. The nature of relief as sought for in Paragraph-7(ii)(a) of the application are not admitted by the respondent. The respondent has issued letter to the applicants for furnishing beejuck/sale invoice and other relevant documents but the appellant did not comply. Violation of Rule-7(ii)(b) of the Railway Rules is not admitted as there was no negligence or misconduct on the part of the respondents. It is averred that the applicant had purchased the goods at New Delhi but the market value of the consignment has been furnished at Guwahati which is not applicable to prove the valuation and thus the claim petition is not maintainable. 9. Learned counsel for the respondent further emphasized through her argument that the RTI information dated 28.07.2010 collected by the applicant proves that the packaging condition was not complied with proof of the remarks available on the Railway receipt and as such the Railways is not liable to refund any payment to the applicant under Section 93(f) of the Railways Act. It is further contended that the applicant has failed to prove the value of the consignment as per provisions of Section 65(2) of the Railways Act. 10. An issue was framed by the Tribunal relating to the issue raised by the respondent that no proper notice under Section 106 of the Railways Act was served. 11. On this issue, it was held by the Tribunal that the booking was on 21.05.2010. (i) Exhibit-A1= R1 is the copy of the Railway receipt vouchers for the same which depicts that the forwarding note is dated 08.05.10 and the invoice is dated 20.05.2010. The

Page No.# 5/19 consignor as per Exhibit-A1= R1 is R.D. Mukunda & Co Freight Forwarder, Office No. 2, Goods Office, DKZ and the consignee was Karan Traders. (ii) Exhibit-A2 is the copy of the letter dated 03.06.2010, issued to the General Manager, Claims, N.F. Railway together with the Railway receipt stating that the consignment booked by original of Exhibit-A1= R1 was not delivered till the date of forwarding the letter. (iii) Exhibit-A3 is the acknowledgement dated 09.06.2010 issued by the Chief Claims Officer, N.F. Railway acknowledging the receipt of Exhibit-A2. (iv) Exhibit-A4 is a letter issued to the GM, NF Railways on 14.06.2010 referring to Exhibit-A2 requesting for tracing out the wagon and releasing the same. (v) Exhibit-A5 is the copy of a letter addressed to the respondents by the applicant/appellant dated 28.06.2010 stating that the information collected indicates that the wagon has reached it's destination after about 38 days delay and the goods were completely damaged. (vi) Exhibit-A6 is the copy of the letter dated 29.06.2010 from the applicant to the Chief Commercial Manager/FM & Claims, N.F. Railway requesting the return of the Railway receipt for taking delivery on proper assessment of their loss incurred. (vii) Exhibit-A7 is copy of the letter from the Office of

Page No.# 6/19 the General Manager/Claims, N.F. Railway dated 29.06.2010 stating that the Railway receipt is forwarded and a request was made to the applicant to contact the concerned person for delivery. (viii) Exhibit-A8 is the copy of the letter to the Chief Commercial Manager/ Claims, N.F. Railway dated 05.07.2018 by the applicant requesting to settle the claim at Rs.4,80,000/- with the endorsement of the respondent to the effect that it had received the same on 06.07.2010. (ix) Exhibit-A9 is the copy of another letter dated 12.07.2010 to the Chief Commercial Manager/FM & Claims, N.F. Railway demanding compensation and the endorsement of the receipt by the respondent dated 15.07.2010, and; (x) Exhibit-A10 is the notice purported to be issued under Section 106 of the Railways Act. 12. It has been held by the learned Tribunal that it is discernable from the evidence that Exhibit-A(1)=Exhibit-R(1) is the evidence of booking of consignment on 21.05.2010 and on the reverse of Exhibit-A(1) is the endorsement in favour of the appellant. It was then held by the learned Tribunal that the signatures on Exhibit-A(2) and A(10) appears to be by the same hand which affixed the signature on the application. Although the signatures in other letters does not appear to be similar. 13. As per Section 106 of the Railways Act, a person shall not be entitled to claim compensation for loss, destruction, damage, deterioration or non-delivery of goods carried by the Railways unless a notice thereof is served by him or on

Page No.# 7/19 his behalf within 6 months from the date of entrustment of the goods. It was held by the learned Tribunal that the notice was issued within 6 months, and as per Sub-section 2 of Section 106, any information, demand or enquiry shall be deemed to be a notice of the claim. It was held by the learned Tribunal that in the instant case, the notice has been properly issued and served. 14. It has been held by the Tribunal that respondents did not state any reason for the delay in delivery. The learned Tribunal has held that there are no materials to accept or reject the appellant's case that all the wagons except the one involved in this case reached the destination in time. Exhibit-A1=R1, does not indicate that the potatoes were damaged or of substandard quality and the potatoes being vegetables, if kept in a sealed wagon for a period of 30 days, putrefaction is inevitable. It was held by the Tribunal that on the materials placed on record, the delay caused in transit resulted in the damage of the goods. 15. The liability in causing the delay was also attributed to the appellant. It was held by the Tribunal that although the goods were brought by the appellant to the consignee on 07.05.2010 or 08.05.2010, the goods were booked as late as 21.05.2010, but the Railways cannot shy away from the responsibility of the delay as the goods were perishable goods and were prone to decay. 16. The Tribunal has recorded sound reasonings and this decision of the learned Tribunal that the Railways are responsible for the delay in delivering the goods to the appellant is correct. I also record my concurrence to the decision of the learned Tribunal that notice under Section 106 of the Railways Act has been properly issued and served. 17. The Tribunal did not accept and believe the photocopy of the letter issued by

Page No.# 8/19 the Chambers of Commerce which quoted the price of the potatoes @ Rs.1200/- per quintal. The learned Tribunal also did not accept Exhibit-14, another photocopy of a letter issued by the Guwahati Potato Onion Merchants Association stating that the price of potatoes was Rs.1125/- to Rs.1200/- per quintal. 18. It was held by the learned Tribunal that the rules were violated as originals were not appended along with the application. 19. The evidence was scrutinized in depth and all the documents along with the receipts were taken into consideration and the learned Tribunal dismissed the application and held that the appellant has failed to prove that he is entitled for a particular sum as compensation as well as the demurrage charges incurred upon him. 20. 883 bags of potatoes arrived after 40 days. The delay caused by the appellant also resulted in the damage of the potatoes. The appellant himself has admitted that the potatoes were brought for transportation on 07.05.2010 or 08.05.2010 but were booked only on 21.05.2010. 21. It is true that the delay cannot be attributed solely to the applicant. Delay was also caused by the Railways. The Railways have justified their delay relating to transportation of certain quantities in a day indicating that the delay was not caused by Railways as 883 bags of potatoes could not have been delivered within that period of time in their hand. Although, contributory negligence has been attributed by the Tribunal by holding that notice has been properly served and there was indeed a delay of delivery of the consignment of potatoes, yet, the Tribunal on scrutinizing the documentary evidence held that the price of the potatoes have not been correctly and truthfully stated by the

Page No.# 9/19 applicant/appellant. 22. It is argued on behalf of the appellant that according to the Indian Railways Commercial Manual, Volume-II, the goods ought to have been delivered to the consignee within 10 days as the goods were perishable goods but the Railways have delivered the goods after 38 days. 23. Learned counsel for the appellant has relied on the decision of the High Court of Judicature at Bombay in 2004 SCC Online Bom 300 in connection with Union of India and Anr Vs. Abdul Karim and Co, wherein it has been observed by the Bombay High Court that:- “13. It is not in dispute that four consignments were booked on different dates and the clusters plantains were delivered to the plaintiff. It is also not disputed that the goods were booked at owner's risk and the goods were found to have deteriorated at the time of delivery. There is also no dispute that there was about 2 days' delay in delivering the goods of three consignments and there was a delay of four days in the delivery of one consignment. When the railway administration did not adduce any evidence as to how the goods were handled in transit, the delay in delivery would certainly cause the deterioration of the goods. 15. Section 76 of the Indian Railways Act contemplates that the railway administration shall be responsible for the loss, destruction, damage or deterioration of animals or goods proved by the owner to have been caused by delay or detention in their carriage unless the railway administration proves that the delay or detention arose without negligence or misconduct on the part of the railway administration or of any of its servants. This provision of law casts responsibility on the railway administration for delay in delivery of the goods or if the goods are deteriorated during transit, the detention of the same in transit.

Page No.# 10/19 Section 74 of Indian Railways Act deals with the goods which are to be carried at the owner's risk rate and contemplates as under:

"When any animals or goods are tendered to a railway administration for carriage by railway and the railway administration provides for the carriage of such animals or goods either at the ordinary tariff rate (in this Act referred to as the railway risk rate) or in the alternative at a special reduced rate (in this Act referred to as the owner's risk rate), the animals or goods shall be deemed to have been tendered to be carried at owner's risk rate, unless the sender or his agent elects in writing to pay the railway risk rate.

(2) Where the sender or his agent elects in writing to pay the railway risk rate under sub-section (1), the railway administration shall issue a certificate to the consignor to that effect.

(3) When any animals or goods are deemed to have been tendered to be carried, or are carried, at the owner's risk rate, then, notwithstanding anything contained in section 73, the railway administration shall not be responsible for any loss, destruction, damage, deterioration or non- delivery, in transit, of such animals or goods, from whatever cause arising, except upon proof that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on the part of the railway administration or of any of its servants."

Page No.# 11/19

(1921) Mad. 135 Governor-General in Council v. G.S. Mills Ltd. I.L.R.

(1449) Pat. 178, Meghaji Hirajee & Co., v. B.N. Railway Co. Ltd. A.I.R. 1939 Nag. 141. Bearing in mind the object of the section it has also been held by several High Courts that a notice under s. 77 should be liberally construed. In our opinion that would be the proper way of construing a notice under that section. In enacting the section the intention of the legislature must have been to afford only a protection to the railway administration against fraud and not to provide a means for depriving the consignors of their legitimate claims for compensation for the loss of damage caused to their consignments during the course of transit on the railways.” 26. In the light of the decision of the Hon’ble Supreme Court in Jetmull Bhojraj (Supra) and in view of the foregoing disuciions on the issuance and acceptance of notice, it is reiterated there were no laches or irregularities in service of notice to consignee. 27. In this case, the appellant has laid stress in his argument relating to non- compliance of Rule 1746 of the Indian Railway Commercial Manual, Volume-II.

Page No.# 12/19 The rule is if a consignment and the invoice for which it is received or the Railway receipt for which has been presented for delivery at the station, is not received within a reasonable time, the destination station should initiate the enquiries at once for tracing the consignment as indicated in the Rules, after accounting for the relevant invoice in the delivery of goods booked, if not already done. 28. According to Rule(B), one day is required for every 250 kms or part thereof, on the overall distance plus one day each for loading and unloading in relation to all broad gauge routes. In the instant case, the distance from the loading point to the destination point was 1855 Kms. 29. It is further argued that it was decided between both the parties that the price of the potatoes would be taken as Rs.10/- per kilo but this was denied by the Railways through their written statement. The Lower Court record also reveals that orders were passed to assess the value of the potatoes @ Rs. 10/- per kg, which was finally drooped. 30. As the respondents did not offer any explanation for the undue delay, it was held that the respondent is responsible for the delay. 31. The learned Tribunal after an in depth discussion dismissed the appellant’s prayer for compensation. The weight was questioned by the learned Tribunal. The receipts were discussed in detail and thereafter, holding that the appellant failed to prove the correct weight of the potatoes, the prayer of the appellant was dismissed. 32. It was observed by the learned Tribunal that the weight of the potatoes for the first time was reflected in Exhibit R6 and later in Exhibit A8. Exhibit A8 shows that the appellant did not produce the bill before the respondent, which

Page No.# 13/19 was questioned by the respondent through the written reply. An invoice was produced and a photocopy was produced by the appellant issued by the Chambers of Commerce, which stated the price of potatoes to be Rs.1200/- per quintal. After a detailed calculation, it was held by the learned Tribunal that a photocopy of the bill dated 20.05.2010 marked as Exhibit A13 reflected the weight of one bag of potatoes to be 50 kgs, which implies that the total product was 441.50 quintals. 33. It is pertinent to mention at this juncture that the Tribunal did not accept the bill, Exhibit A13 as it was produced at the 11th hour and to the detriment of the respondent. However, after thoroughly scrutinizing the Trial Court Record, it has surfaced that Exhibit A13 is not in the record and moreover, it will be a futile exercise to get into the details of Exhibit A13. 34. The learned Tribunal has strongly slammed Exhibit A13. At this juncture, it is apt to mention that when Exhibit A13 is not found in the record and when Exhibit A13 has been rejected by the learned Tribunal, this Court would refrain from getting into the details of Exhibit A13. 35. It was held by the learned Tribunal that the photocopy of the letter issued by the Guwahati Potato Onion Merchants’ Association marked as Exhibit A14 cannot be relied upon as the appellant, is a member of the association and the association is an interested witness. The price of potatoes per kg according to the association is Rs.1125/- to Rs.1120/- per quintal. It was held by the learned Tribunal that there are departments like Bureau of Economics and Statistics, which could have provided the wholesale price index of potatoes. 36. It was further held by the learned Tribunal that except freight which could be seen from Exhibit A1 = R1, no documents are forthcoming to prove the price

Page No.# 14/19 of the potatoes vis-à-vis the weight. It was observed by the Tribunal that the applicant/appellant is a litigant who plays dirty games to mulct undue benefits from the Railways. As the appellant failed to produce any income tax assessment, books of accounts or bills of the same period, it was observed by the Tribunal that suppression speaks volumes and the applicant/appellant is a litigant who plays dirty games to claim compensation. However, the Tribunal entered into a finding that the applicant is entitled to 50% of the valuation of goods as compensation but as the applicant has not come with clean hands, the applicant is not entitled to compensation and the learned Tribunal rejected the appellant’s claim for refund of the demurrage charge allegedly incurred by the respondent. 37. It is pertinent to mention at this juncture that RR at Exhibit A1 = R1 clearly depicts 400 quintals of potatoes transported by the Railways. The controversial Exhibit A13 which is not in the record and which has been vehemently criticized by the Tribunal, clearly reveals that the weight of the potatoes would be 441.50 quintals. 38. Thus, the decision of this Court in Union of India versus M/S Indian Oil Corporation in connection with MFA 92/2016 vide the order dated 21.05.2020, is not similar to this case and the decision of the Hon’ble Supreme Court relied upon by the respondent in Hari Sao and Another versus the State of Bihar reported in AIR 1970 Supreme Court 843, is not applicable to this case. 39. Paragraph 8 of the decision of the Hon’ble Supreme Court in Hari Sao (supra) clearly reflects why the ratio of the decision of the Hon’ble Supreme Court is not applicable to this case. This case was relating to transporting of 251 bags of chilies whereas at the destination point when the wagons were unloaded, 197 bags of straw were discovered instead of 251 bags of chilies.

Page No.# 15/19 40. This instant case is relating to 400 quintals of potatoes. It has not been disputed by the respondent that some other goods instead of potatoes were found at the destination point where the goods were unloaded. 41. Learned counsel for the respondent has relied on paragraph 9 of the decision of the Hon’ble Supreme Court in Hari Sao’s case (supra), which is quoted herein below:- “9. In this connection reference may be made to the Goods Tariff Rules. Rule 15 of Part 1 of the Goods Tariff shows that : "The weight, description and classification of goods and quotation of rates as given in the railway receipt and forwarding note are merely inserted for the purpose of estimating the railway charges and the railway reserves the right of re-measurement, re-weighment, reclassification of goods and re-calculation of rates and other charges and correction of any other errors at the place of destination and of collecting any amount that may have been omitted or undercharged. No admission is conveyed by a railway receipt that the weight as shown therein has been received or that the description of goods as furnished by the consignor is correct." Under Rule 22(1) every consignment of goods when handed to the railway for despatch must be accompanied by a forwarding note which must be signed by the sender or his authorised agent and must contain a declaration of the weight in accordance with Section 58 of the Indian Railways Act and destination of the goods consigned. Under Rule 24(2) if a materially false account is delivered with respect to the description of any goods, the person who gives such false account, and if he is not the owner, the owner also, is, on conviction by a Magistrate, liable to a fine which may extend to Rs. 50/- per maund or part of a maund of the goods, and such fine will be in addition to the rate to which the goods may be liable.” 42. In the decision of this Court in Union of India versus M/S Indian Oil Corporation Limited in connection with MFA 92/2016 it has been observed that :- “16. Mr. G Goswami, learned counsel for the appellant Railways relies upon the judgment of this Court dated 26.04.2019 in MFA 20/2012 passed in Union of India Vs. Bajaj Trading Company to impress upon that the matter may not be remanded back for a fresh decision as it would amount to granting a fresh

Page No.# 16/19 opportunity to the respondent IOC to claim after a lapse of long period of time and also in view of the failure on the part of the respondent IOC to file an application under Order 41 Rule 27 of the CPC seeking leave to lead evidence at the appellate stage. But we are of the view that in the instant case, the Tribunal misdirected itself in not determining the claim raised by the respondent IOC at all and merely relied upon the principle of drawing adverse inference which in the circumstances of this case appears to have been inapplicable. As the Tribunal had not decided the core question at all i.e. what was the weight or volume of the goods loaded by the respondent IOC at the place of origin, we are of the view that this matter requires a remand to the Railway Claims Tribunal for a proper decision on the said aspect.” 43. Reverting back to this case, it is held that the RR clearly reflects that 400 quintals of potatoes were transported. Exhibit A13 which has shown 41 kgs extra has not been exhibited in the Court or is found in the record. So, it cannot be held at this stage that there are contradictions in the weight of the potatoes. This is a long pending case and at this juncture, remanding back this case for a bill or receipt relating to weight of the potatoes is not warranted. 44. The respondent has also relied on the decision of this Court in MFA No. 1/2013 in connection with M/S Bajaj Trading Companies versus Union of India wherein vide order dated 17.12.2024, it has been observed that :- “20. But, the appellant herein had failed to establish the fact that consignment of salt containing 40,444 bags was booked on 10.11.2009 and loaded in the wagon, by producing relevant documents such as Lorry Challan and payment of Sales Tax, Books of Accounts, Balance Sheet and Beejuck/Sale Invoice. 21. Further, it appears from the record that the appellant herein had not demanded for open delivery of the consignment at the destination point. Rather he had demanded for issuing one delivery certificate. And accordingly, the respondent herein had issued the delivery certificate- i.e. Exhibit-R3. But, said Exhibit does not indicate that the condition of seal of wagons was broken or there was pilferage or there was any criminal interference.

Page No.# 17/19 22. Section 81 of the Railways Act, 1989 provides that where the consignment arrives in a damage condition or shows sign of having been tampered with and the consignee or the endorsee demands for open delivery, the Railway Administration shall give open delivery in such manner as may be prescribed and read with Para No. 1840, 1842 (i) to (vi) of IRCM- Vol-II. 23. That being so, the learned Tribunal had rightly held that the applicant/appellant had not produced any evidence to show that the remarks recorded in the Exhibit-R4 are contradictory and he had not raised any objection to those recordings. The finding so recorded by the learned Tribunal is also strengthened by the decision of Orissa High Court in Union of India vs. Industrial Development Corporation of Orissa Limited, reported in AIR 1995 Orissa 298, so relied upon by it.” **** ***** **** “25. In the result, and in view of foregoing discussions and findings, I find this appeal bereft of merit, and accordingly, the same stands dismissed leaving the parties to bear their own cost. Send down the record of the learned Tribunal with a copy of this judgment and order.” 45. In the instant case, the Tribunal has already observed that the consignor as per Exhibit A1 = R1 is R.D. Mukunda & Co Freight Forwarder, Office No. 2, Goods Office, DKZ and the consignee is Karan Traders. Exhibit A2 is the copy of a letter dated 03.06.2010 issued to the General Manager Claims, N.F. Railway, together with the RR stating that the consignment booked by original of Exhibit A1=R1 is not delivered till the date of the forwarding letter. 46. The learned Tribunal has already held that the respondent is liable to contributory negligence as the appellant is also responsible for delay in loading the goods. Appellant has himself admitted that the potatoes were brought for transportation on 07.05.2010 or 08.05.2010 but were booked only on 21.05.2010.

Page No.# 18/19 47. It is also pertinent to mention at this juncture that as per Rule 1746 of IRCM Rules, the goods ought to have been unloaded at destination point after ten days of booking as the distance was 1855 kilometers. Without calculating all the details, the period required for the arrival of the goods at the destination point, it would be germane to reiterate that the learned Tribunal has already held the appellant responsible for contributory negligence. The respondent was also held responsible for contributory negligence. 48. I would also like to rely on the decision of this Court in Union of India versus Sunrise Traders reported in 2016 (1) GLT 447 wherein it has been observed that :- “12. Having so found, it appears that the learned Tribunal has not committed any error in arriving at a finding under issue No. 3 holding that 441 bags of onion were in damaged condition. The only thing which was left for decision of the Tribunal was to make an assessment of the compensation. True, the claimant could not produce beejuck to show the purchase rate of the onion. Under such circumstances, the learned Tribunal presumed the price to be Rs. 5/- per Kg as reasonable rate. Some amount of guess work is permissible by a Claims Tribunal when the basic facts are on record. In the case of Chain Sukh Jain v. Union of India reported in (2003) 3 GLR 267, this court held that guess work is a must for disposal of the case in absence of complete evidence. Here in this case, damage of 441 bags of onion is an established fact. The only question is what should be correct price of the damaged onion has not been proved by the claimant. This is why, the learned Tribunal took a pragmatic view and made a guess work that each kilogram of onion costs Rs. 5/- which does not appear to be absurd. Even in the present memorandum of appeal, no specific ground has been taken questioning the correctness of the guess work as to reasonable rate of each kilogram of onion. Having so situated, none of the findings of the learned Tribunal can be interfered with in exercise of appellate

Page No.# 19/19 power. Consequently, this appeal is found to be devoid of any merit. The appeal stands dismissed.” 49. In the wake of the foregoing discussions, I deem it appropriate to assess the price of the potatoes at Rs. 1200/- per quintal which also does not appear to be absurd. The appellant has claimed for a refund of Rs.4,80,000/- (Rupees Four Lacs Eighty Thousand) on account of shortage of goods, as the goods were damaged. The appellant quoted the price of 1 quintal of potatoes to be Rs. 1200/-. 50. The Railways who are held responsible for delay in delivery of goods to the consignee is hereby directed to pay 50% of Rs.4,80,000/- (Rupees Four Lacs Eighty Thousand) within three months of the date of this order. 51. In addition. The Railways are directed to refund the demurrage charges of Rs. 9,500/- already paid by the appellant. 52. Appeal is hereby partly allowed. 53. Send back the Trial Court Record.

JUDGE Comparing Assistant