1.12.2008 Sri.K.Gopalan: President This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite parties to pay a sum of Rs 30,108/- as compensation. The case of the complainant in brief are as follows: The complainant booked a parcel of rubber stumps from Trivandrum Railway Station to Kannur Railway Station on 3.1.2008. When the complainant showed the receipt next day in Kannur Railway Station, the authorities told him that the parcel was not reached He was asked to wait for next train. Complainant waited there in the office of the Railway parcel till late night at 22.30 o clock but in vain. The parcel was not delivered to complainant on 4.1.2008. At last authorities told him the parcel was lost. They were also accused the complainant that loading and unloading is the duty of the complainant and sent him out. After 4 days he was informed by the Parcel Office, Kannur Railway Station that the consignment bundles of rubber stumps were received at Kannur RailwayStation. By the time the rubber stumps became useless Complainant sent complaints to Divisional Officer,Palakkad and Chief Claim Officer, Madras on 12.1.08. But at last complainant received the reply informing him that the bundles of rubber stum ps were received at Kannur on 6.1.08 and to contact Chief Parcel Supervisor Kannur and take delivery of the consignment and withdraw the claim. Complainant is a poor cultivator and he has sustained a loss of Rs 16,500/- by this non delivery. 1100 rubber stump costs RS 15/- for each stumps total amount 1100x15= Rs 16,500. He has suffered mental pain and sufferings which he has estimated a loss of Rs 10,000/-. An amount of Rs 3608 is also estimated as travelling expense. Hence this complaint for an amount of Rs 30,108/- After notice version filed by opposite parties. The contention of opposite parties in brief are as follows: The opposite party submits that 3 gunny bundles rubber stumps weighing 100 Kgs were booked under PWB No.038602 dated 3.1.08 from Trivandrum to Cannanore. The said cosignment was loaded in train no.6629 of 3.1.08. The complainant has sent his claim on 10.1.08 which was received in the office on 17.1.08. A reply has been sent to him on 4.2.08, asking him to take delivery of consignment and withdraw the claim. But the complainant refused to take delivery. The opposite party further submits that Railways do not guarantee despatch of articles or animals by any particular train or delivery within any definite time or period. The Fourm has no jurisdiction of RailwayClaims Tribunal in terms of Section 13 of Railway Claims Tribunal Act, 1987 read with Section 15 thereof. No claims shall be entertained or adjudicated in any such manner which fall within the exclusive jurisdiction of the Railway Claims Tribunal after the enforcement of RCT Act, 1987,. Hence the complaint is liable to be dismissed on the ground of jurisdiction. Oppoiste party submits that the order passed bythe Hon: National Commission in Union of India Vs M. Adaikalam in 1993(2) CPJ 145(NC) and 2001(3)CPI 194 (NC) wherein it was held that the Consumer Forum has no jurisdiction to entertain complaints of defiicency in service arising from loss destruction, damage, deterioration or non delivery of goods etc entrusted to the Railway Administration for carriage. The jurisdiction is now vested in Railway Claims Tribunal extablished under RCT Act 1987. As per rules the consignor has to declare the value of consignment in the Forwarding Note at the time of entrustment for carriage and on its declared value a certain percentage charge is levied which the compainant has not paid. In such cases, the Railways monetary liability is restricted under Section 103 of Railways Act 1989 read with rule 3(11) of Railways ( extent of monetary liability and prescription or percentage charge) Rule 1990. If at all the complainant is entitled for compensation if any under the said rule Rs 50/- per kg ie Rs 50x100 = Rs 5000/- Hence oppoiste party prays for dismissal of the case. On the above pleadings the following issues have been taken for consideration. 1.Whether the complaint is maintainable? 2.Whether there is any deficiency on the part of the opposite parties Railway? 3.3. Whether the complainant is entitled for any compensation as prayed in the complaint? 4.Relief and cost. The evidence consists of oral testimony of PW1 and Exts. A1 to A5 on the side of the complainant and oral testimony of DW1 on the side of the opposite party. No document produced by opposite party. ISSUE NO.1. First of all it is to be decided whether the complaint is maintainable or not?This is a case where complainat booked a parcel from Trivandrum Railway Station to Kannur Railway Station but the same was not delivered to complainant. The opposite party contended that the Forum has no jurisdiction to entertain the complaint in the light of the decision by the Hon: National Commission in Union Vs. M. Adaikalam reported in 1993(2) CPJ 145 (NC) and 2001(3)CPR 194(NC). National Commission in its decision in 11(1993) CPJ 145 (NC) held that Consumer Forum has no jurisdiction to entertain complaints on account of deficiency in service arising from loss, destruction, damage, deterioration or non delivery of goods etc entrusted to the RailwayAdministration for carriage. This jurisdiction is now exclusively vested in Railway Claims Tribual established under the Railway Claims Tribunal Act, 1987. In addition, the Railways have no liability for delay in delivery in terms of the coaching tariff. The counsel for the opposite party also argued vehimently that under Section 95 of Railway Act the Railway administration shall not be responsible for the loss, destruction, damage or deterioration of any consignment. This question of jurisdiction raised as first issue in Northern Railway & Anr. Vs. Shalini Kapoor by Railways that the jurisdiction of the Consumer Forum is specifically barred by the latest Central Enactment ie; the RailwayClaims Tribunal Act 1987. In decision of the National Commission reported in 111(2007)CPJ 78 held thus: first on the question of jurisdiction, we are clearly of the opinion that where the issue is one of the deificency in service, the Consumer Act comes into play irrespective of any of the legislatures like Railways Tribunal Act etc . In the decision reported in 2004(1) CPR 366 (W.B)in Eastern RailwayVs. Sri.Girdhari Lal Saraf it was held that the jurisdiction of Consumer Forum to decide complaint alleging deficiency in service could not be barred by Railway Claims Tribunal Act. This decision makes clear that the Consumer Forum can entertain complaint against Railway in deficiency of service. The decision reported in N(2005) CPJ 79 (NC) in Divisional RailwayManager & Anr. Vs. Abhishankar Adhikari National Commission held that every railway passenger is a cosumer in terms Section 3 of Consumer Protection Act. Jurisdicton of the Consumer Fora is not ousted in such matters of the loss of luggage that is not covered by Section 13 of the Railway Claims Tribunal Act , 1987. Thus the view of National Commission is clear beyohd doubt and we have no hesitation to hold the view that the doors of Consumer Court cannot be shut for remedying deficiency in service. Hence the issue No.1 is found in favour of the complainant. ISSUES 2 to 4: The complainant is a resident of Kottiyoor 50 Kms away from Kannur town. He went to Marthandam in Kannyakumari District for rubber stumps. He purchased 1,000 budded stumps R.R11.105 clones from Sree Naraya Rubber Nursery, Sivapuri, Manjalumoodu.P.O., Kannyakumari District for Rs 16,500/- on 3.1.08 . Ext. A1 the receipt issued by the Nursery proves the purchase. Ext. A2 is the parcel way bill which proves that the complainant booked the parcel of rubber stumps from Thiruvaanthapuram Railway Station to Kannur RailwayStation on 3..1.2008. In the usual course it shall reach Kannur next day. But the parcel was not delivered on 4.1.2008. Complainant stated in his chief that he waited there up to late night 10'0 clock and covered all the trains from Thiruvananthapuram. He has also deposed that when he complained to officials of opposite party they told that the material might have lost. Complainant submitted letter of complaints to railway authorities. Ext. A3 is the letter sent to the Chief Claims Officer, Madras. Ext. A4 is the ackowledgement letter which also carries all the booking particulars . Ext. A4 was replied by opposite party asking him to take delivery of the consignment. Complainant deposed that he has received the information only after 4 days by the time all the stumps were emaciated being dried up. It was totally destroyed and that is why he sent complaints to Divisional Office Palakkad and Chief Claims Officer at Madras. These fact was not denied by the opposite party. As far as a cultivator is concerned he will not allowed to distroy the stumps if it can be used for cultivation. He has gone 600 kms away from house to get the stumps and after collection he returned with it not to destroy the same. It is lost means he lost his cultivation. Rs 16,000/- is not a small amount for a cultivator. It is not easy to manage such an amount immeditely . The availability of stump is also a big question. Complainant has gone more than 600 kms far away for the collection of stump. That itself shows the task of collection of stump as he desired. So the loss suffered by the cultivator is such a kind which is difficult to measure in terms of money. Opposite party and oppoiste party's official were not taken much care to solve the grievances of the complainant. Mangalore is the terminal of the jourey, the destination. From Kannur to Mangalore they could have make contact if they want immediately. If the official has taken that much interest the stumps could have been loaded back to Kannur by the next train iteself. In Kerala even students can understand that stumps will be destroyed within days. So, that was a case, where urgent interference was required without fail, but the authorities were careless. They commented casually that the material might have lost. The opposite party has no explanation for the non delivery of the parcel. Opposite party is runing after with the loop holes of the law and safe corner of shelters that of rules and regulations. The opposite party could have given evidence to the effect that they have acted upon to help the complainant to get the stumps as soon as possible. Opposite party could not even attempt to give evidence in that direction. The opposite party and officials of opposite party are under the impression that the deficiency of service on their part will be protected by so much of rules and regulations. No effective attempts and measures were taken by the officials in the case of the complainant to trace the rubber stumps immeditely. Under the present day existing facilities it is a silly thing for the officials in Kannur to contact Magalapuram RailwayStation and to gather sufficient information without delay. But official have not taken any such interest to respect the feelings of a cultivator, though ours is an agricultural society. There is gross negligence on the part of the opposite party which resulted in clear deficiency in service. Opposite parties are safely depending upon Section 95 of Railway Act to be free from liability. It is true that Section 95deals with delay or detention in transit which gives explanation that A railway administration shall not be resposible for the loss, destruction, damage or deterioration of any consignment proved by the owner to have been caused by the delay or detention in their carriage if the railway administration proved that the delayor detention arose for resons beyond its control or without negligence or miscoduct on its part or on the part of any of its servants In the present case opposite party or the officials of opposite party has not given any sort of evidence to prove that the delay arosed for resons beyond oppoiste party's control or without negligence on the part of opposite party or on the part of any of its servants. Hence we have no hesitation to hold that there is deficiency in service on the part of the oposite party and the complainant is entitled to get the price of the articles and compensation and cost. Ext. A1 shows that the price of the rubber stump is Rs 16,500/-. Travelling expenses from Kotiyoor to Kannyakumari , loading unloading expenses etc will come at least Rs 1500/-. Complainant is also entitled for compensation over and above the price of the rubber stamps, for an amount of Rs 5,000/-. Thus opposite parties are liable to pay a sum of Rs 23,000/-as compensation with interest at the rate of 7%p.a. from the date of order till the date of payment. Complainant is also entitled for cost of this proceedings Rs 300/-. Hence the issues 2 to 4 are found in favour of compainant and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to pay a sum of Rs 23,000/-( Rs twenty three thousand only) as compensation with an interest @ 7%p.a.. from the date of order till the date of payment together with a cost of Rs 300/-( Rs three hundred only) to the complainant within one month from the date of receiving this order, failing which the complainant is allowed to execute the order under the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complinant A1.Bill dt.3.1.08 issued by Sree Naraya Rubber nursery A2. Receipt of the Parcel way bill issued by OP A3.Copy of the letter dt.10.1.08 sent to oP A4.Copy of the letter dt.22.1. Sent by OP A5.Copy of the letter dt.4.5.08 issued by OP Exhibits for the oppoiste parties:Nil Witness examied for the complainant PW1.Complainant Witness examined for the oppoiste parties DW1Saseendranath /forwarded by order/ Senior Superintendent Consumer Disputes Redressl Forum, Kannur
