ASHIM KUMAR BANERJEE, J. - (1.) BHARAT Petroleum Corporation Ltd. (hereinafter referred to as B.P.C.L.) was a consignee in respect of a Railway Invoice for carriage of high speed diesel through North Frontier Railway. The consignment was booked Ext. B.R.P.L. on Railway to Dalgaon on North Frontier Railway. It was alleged that due to negligence and misconduct on the part of the Railway the consignee did not get delivery of the consignment. Hence, the consignee became entitled to the value of the goods aggregating to rupees twenty - two lakhs three thousand two hundred and fifty - eight only. B.P.C.L. filed the claim before the Railway Claims Tribunal. They contended that the consignment was booked to be delivered at Dalgaon. The Railway failed to deliver seven tank wagons, thus, gave rise to the claim made by B.P.C.L. B.P.C.L. duly served notice under S.106 of the Railway Act but of no avail. Hence, the claim made before the Tribunal. Railways filed written reply before the Tribunal. The Railway claimed that the case was bad for non - joinder of necessary party. According to Railway, the consignment were booked from B.R.P.L. private siding. The consignment could not be delivered because of derailment of the wagons. From the accident report it transpired that the accident had occurred due to improper maintenance of track being the responsibility of the owner of the private siding being the Bongaigaon Refinery and Petrochemical Ltd. (hereinafter referred to B.R.P.L.). Pertinent to note, North Frontier Railway entered into a private siding agreement with B.R.P.L. As per Clause 13 and 14, ordinary maintenance of track would be done by the Railway Administration at the cost of the applicant being B.R.P.L. As per Clause 14, the applicant would have to pay annual maintenance charges at the rate prescribed thereunder. The applicant would however be at liberty to maintain at its cost and expenses in respect of the portion for which supervision cost and / or maintenance cost to be borne by the applicant. On a combined reading of Clause 13 and 14, it would appear that the private siding would be maintained by the Railway at the cost of B.R.P.L. B.R.P.L. would also be at liberty to maintain it by itself. Fact remains, the maintenance of track was the responsibility of B.R.P.L. The Railway contended that B.R.P.L. did not pay the maintenance charges. Hence, the tracks were not maintained properly. The Railways relied on various correspondence disclosed before the Tribunal demanding maintenance charges from B.R.P.L.
(2.) THE Tribunal considered the rival contentions. The Tribunal held, it was open to the Railway authority to refuse loading and / or the unloading at the private siding on the plea of non - payment of the maintenance charges. So long they did not do so and accepted consignment at the private siding they would be obliged to pay compensation. Being aggrieved, the Railways preferred the instant appeal that was heard by us on the above mentioned date. We heard Mr. Swapan Banerjee, learned counsel appearing for the North Frontier Railway being ably assisted by Mr. Saptarshi Roy. We have also heard Mr. Rajendra Kumar Mittal, learned counsel appearing for B.P.C.L.
(3.) MR . Banerjee drew our attention to the relevant provisions of the Railways Act, 1989. According to him, once the consignment was booked at the private siding and the accident occurred at the private siding the owner of the private siding was a necessary party. In its absence the case could not be considered by the Tribunal. On merits, Mr. Banerjee contended that the Railway was responsible for any loss or damage occurred on the Railway track within the control of the Railway. The accident, if any, occurred at the private siding not belonged to the Railway, would not give rise to any claim to be made against the Railway. He also relied upon the siding agreement to show that it was the duty and responsibility of the owner to maintain the track and such maintenance could be done by the Railway only upon payment of maintenance charges by the owner. He referred to series of letters from the paper book to show that despite reminders being given the B.R.C.L. failed and neglected to pay the maintenance charges. He prayed for setting aside of the judgment and order of the Tribunal.;