Punjab

Ludhiana

CC/20/102

Makhan Lal - Complainant(s)

Versus

Chief Claim officer - Opp.Party(s)

Manan Berry

17 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:102 dated 14.07.2020.                                                         Date of decision: 17.05.2023.

 

Makhan Lal S/o. Sh. Parkash Chand, R/o. H. No.11775, Street No.3, Near Radha Krishan Mandir, Sahibzada Ajit Singh Nagar, Ludhiana, Prop. M/s. Makhan Karyana and Bartan Store, Ekta Market, Sua Road, Giaspura, Ludhiana.                                                                                                                                                                                              ..…Complainant

                                                Versus

1. The Chief Claim Officer, NDCR Bldg., S.E. Road, New Delhi.
2. The Chief Parcel Superintendent, Railway Station, Ludhiana.
3. The D.R.M., Northern Railways, Firozpur.
4. The Chief Parcel Superintendent, Northern Railway, Maripat. 

…..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Manan Berry, Advocate.

For OPs                          :         Sh. Rakesh Bhatia, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant deals in stove, cookers, torch, plastic, thermoware crockery, steel bartan, aluminum bartan, pital bartan and spare parts under the name and style of M/s. Makhan Karyana and Bartan Store, Ekta Market, Sua Road, Giaspura, Ludhiana. The complainant stated that on 29.06.2019, he purchased approximately 780 Kg of brass utensils from M/s. Moti Lal Anil Kumar Manufactures and dealers of Non Ferrous Metal and utensils situated at Durga Devi, Mirazpur-231001 Uttar Pradesh vide invoice No.10 of Rs.3,01,840/- inclusive of GST. The complainant opted the services of Indian Railways to transit the goods from Mirazpur to Ludhiana and handed over the goods to concerned department of Railway to transport it in Tatamoori Express vide PWB/RR No.164827 dated 29.06.2019 by paying freight charges of Rs.3789/-. According to the complainant, the PWB/RR No.164827 contained 10 bundles having 780 kg weight. On 02.07.2019 instead of giving 10 bundles, 6 bundles of goods were handed over to the complainant by the concerned department of Ludhiana Railway Station and on 04.07.2019 the complainant received one more bundle from railway department and in all received 7 bundles out of 10 bundles. The complainant further stated that he moved various complaints to the higher officials of the railway department and also tweeted to RPF Northern Railway regarding loss of bundles which was under the custody of Indian Railways but to no effect. According to the complainant, three bundles lost in the transit were having weight approximately 225 KG with value of Rs.99,960/- and it was the responsibility of the Indian Railways to compensate the complainant with the appropriate amount of lost goods but the claim branch only gave Rs.12,450/- which was received by the complainant under protest. The complainant issued legal notice dated 24.12.2019 to the opposite parties through Sh. Manan Berry, Advocate but no reply was given by the opposite parties. The opposite parties have provided negligent and deficient services and have adopted unfair trade practice which has caused mental agony and harassment to the complainant for which the complainant is entitled to compensation. In the end, the complainant prayed for issuing directions to the opposite parties to pay the value of goods i.e. Rs.99,960/- along with compensation of Rs.50,000/- and litigation expenses of Rs.10,000/-.

2.                Upon notice, the opposite parties appeared and filed joint written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint, the complaint being bad for non-joinder and mis-joinder of necessary party, lack of jurisdiction etc. According to the opposite parties, As per Section 103(1) of Railway Act, they have already paid Rs.12,450/- against the loss of three bundles of the complainant.  The opposite parties further stated that this Commission has no jurisdiction to entertain and try the present complaint as per Section 13, 15 & 28 of the Railway Claims Tribunal Act, 1987 which reads as under:-

“Sec. 13:     Jurisdiction, Powers and authority of Claims Tribunal (1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any Civil Court or a Claim Commissioner appointed under the provisions of Railways Act.

1. Relating to the responsibility of the Railway administrations as carriers under chapter VII of the Railways Act in respect of claims for

1. Compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to Railway administration for carriage by Railways:
2. Compensation payable under Section 82A of the Railways Act or the rules made there under; and

2.  In respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.

[(1A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Sec. 124-A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claim for compensation now payable by the railway administration under Sec. 124-A of the said Act or the rules made there under)

(2) The provisions of the Railways Act, 1989 (24 of 1989) and the         rules made there under shall, so far as may be, applicable to the          inquiring into or determining any claims by the Claims Tribunal         under this Act.

15.      Bar of Jurisdiction:- On and from the appointed day no court or other authority shall have or be entitled to, exercise any jurisdiction. powers or authority in relation to the matter referred to in [sub section (1) and (1A) of Sec. 13].

28. Act to have overriding effect:- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act"

Further as per the opposite parties the present dispute can only be decided by the Railway Claims Tribunal and not by this Commission and the remedy, if any, to the complainant is provided in the said Act and the provisions of Consumer Protection Act are not applicable to the matter in question.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents i.e. Ex. C1 is the copy of receipt dated 04.07.2019 regarding receipt and delivery of 7 bundles, Ex. C2 is the copy of tax invoice dated 29.06.2019, Ex. C3 is the copy of E-way bill dated 29.06.2019, Ex. C4 is the copy of registration of goods with Railway department, Ex. C5 to Ex. C9 are the copies of complaints moved by the complainant to the Railway department, Ex. C10 to Ex. C28 are the copies of emails, Ex. C29 is the copy of legal notice dated 24.12.2019, Ex. C30 is the copy of reply to legal notice, Ex. C31 to Ex. C34 are the postal receipts, Ex. C35 to Ex. C38 are the copies of postal receipts and closed the evidence.

4.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Sh. Guddu Paswan, Chief Booking cum Parcel Supervisor, Northern Railway, NDCR Building, New Delhi along with documents Ex. R1 is the copy of his identity card, Ex. R2 is the copy of notification dated 07.06.2019, Ex. R3, Ex. R4 and Ex. R6 are the copies of  register, Ex. R5 is the letter dated 30.12.2019 of Chief Parcel Supervisor, Northern Central Railway, Mirzapur, Ex. R7 is the copy of invoice and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint,  affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

6.                The complainant, a proprietor of M/s. Makhan Karyana and Bartan Store, Ekta Market, Sua Road, Giaspura, Ludhiana booked the consignment of 10 bundles through the opposite parties from Mirzapur to Ludhiana vide PWB/RR No.164827 dated 29.06.2019 and paid Rs.3789/- as freight charges. However, the complainant received 6 bundles on 02.07.2019 and one bundle on 04.07.2019 and the remaining 3 bundles were lost in transit having weight about 225 Kgs. The complainant moved various representations through letters and emails (Ex. C5 to Ex. C28) to the opposite parties with regard to the loss of three bundles in transit. The opposite parties calculated the loss to the tune of Rs.12,450/- and gave a compensation of Rs.50/- per KG on total weight of 249 Kgs and paid the same to the complainant. The grievance of the complainant is that he has not received the compensation as per value of Rs.99,960/- of the lost parcels. The complainant also served legal notice dated 24.12.2019 Ex. C29 upon the opposite parties which was suitably replied by the opposite parties vide Ex. C30.

7.                Now the point of consideration arises whether the complainant is entitled to compensation as per value of the goods or as per weight of the lost bundles. Perusal of Ex. R3 to Ex. R7, the documents which were prepared during booking of the goods from Mirzapur to Ludhiana, clearly shows that value of the goods were not declared by the complainant. The freight charges were also charged on the basis of weight declared by the complainant.

8.                Undoubtedly, the opposite parties are responsible for the loss, destruction, damage, deterioration and non-delivery of any booked luggage or a parcel but that extent of monetary liability is subject to the rules and regulations. Ex. R2 is the Notification dated 07.06.1990 of Ministry of Railways (Railway Board) titled as Railway (Extent of Monetary Liability and Prescription of Percentage Charge)Rules, 1990. Rule 3 of the said notification reads as under:-

“3.    Monetary Liability of a railway administration:- (I) Where a railway administration is responsible for loss, damage, destruction, deterioration or non-delivery of any consignment the amount of liability of such railway. Administration in respect of such loss, damage, destruction, deterioration or non-delivery shall not, unless the consignor has declared is value and paid percentage charge on excess value of such consignment, exceed:-

1. In the case of any consignment consisting of animals, the amount specified in Schedule I; or
2. In the case of any consignment consisting of baggage, an amount calculated at rupees one hundred per kilogram; or
3. In the case of any consignment other than those referred to in clauses (i) and (ii) above, an amount calculated at rupees fifty per kilogram.

(2)     Where a railway administration is responsible for loss damage, destruction, deterioration or non-delivery of any consignment and the consignor has at the time of entrustment for carriage declared the value of such consignment and paid percentage charge on excess value at the rate specified in Part I or Part II as the case may be of Schedule II, the amount of liability of a railway administration for loss, damage, destruction, deterioration or non-delivery of such consignment shall not exceed the value so declared.”

In the present case, the complainant has not declared the value of the goods nor paid percentage charge payable on the value. So his claim was rightly calculated and paid by the opposite parties by invoking the aforesaid rules. As such, there is no deficiency in service on the part of the opposite parties.

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

 

Announced in Open Commission.

Dated:17.05.2023.

Gobind Ram.

 

 

Makhan Lal Vs Chief Claim Officer                               CC/20/102

Present:       Sh. Manan Berry, Advocate for the complainant.

                   Sh.  Rakesh Bhatia, Advocate for the Ops.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:17.05.2023.

Gobind Ram.