By SRI.K.VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> <br /> <br /> <br /> This is a complaint seeking compensation and Rs.42,868/- against the Southern Railway for the deficiency in service.<br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> The complainant is a business man at Kollam. He purchased Plasticgoods from Madras on 15.2.2003 and sent to Kollam lthrough railway as per bill No.426709 dated 15.2.2003. The above goods were not delivered from Kollam or anywhere by the railway. The complainant thereupon filed a complaint to the Chief Commercial Manager who sent reply No.T.C.127/1267 02-03/V 19 wherein the railway had admitted liability. But they are not willing to settle the matter. Hence the complaint.<br /> <br /> The opp.parties filed a joint version contending, interalia, that the complaint is not maintainable either in law or on facts. This Forum has no jurisdiction to maintain this complaint. The complaint is covered by Section13[1], 15 and 28 of Railway Claims Tribunal Act, 1987. The opp.parties admits that the consignment of Plastic Goods were booked by the complainant under PWB No.426709 dated 15.12.2003 from Madras to Kollam. But the complainant neither declared the value of consignment at the time of booking the consignment nor paid the percentage charges thereon. Under the circumstances, in case of non-delivery shortage etc. complainant is entitled to compensation under Section 103 of Railways Act 1989. Accordingly Railway has offered Rs.3,600/- as per the letter dated 26.6.2003 which was rejected by the complainant as per letter dated 20.7.2003. The allegations in paras 1 to 5 are denied. There is no deficiency in service on the part of opp.parties. As per rule 118 of Indian Railway Conference Association, Coaching Tariff No.25, Part-1, Vol.1 “Railways do not guarantee despatch of articles or animals by any particular train, or delivery within any definite time or period”.. The complainant is not entitled to get any compensation from the opp.party. Hence the opp.party prays to dismiss the complaint.<br /> <br /> Points that would arise for consideration are:<br /> [1] Whether this Forum has jurisdiction to entertain this complaint.<br /> [2] Whether there is any deficiency in service on the part of the opp.party as <br /> alleged.<br /> [3] Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined and Ext. P1 to P15 are marked.<br /> No oral evidence is adduced by the opp.parties.<br /> <br /> Points :<br /> <br /> The contention of complaint is that he purchased plastic articles worth Rs.35,088/- as per Ext. P1 from Madras for his business purpose and entrusted with the Southern Railway for transportation to Kollam as per the P2 receipt on 15.2.2003. But the articles were not delivered to him till date with the result that he sustained loss of Rs.42,868/-<br /> <br /> The main contention of opp.party is that this Forum has no jurisdiction to entertain this complaint. It is argued that the subject matter of the complaint is covered by section13 [1] of Railway Claims Tribunal Act 1987 and sec. 15 bars jurisdiction of court or other authority to entertain matters covered by sec.13 and therefore, the complainant ought to have approached the Railway Claims Tribunal for redressing his grievance and in support of his contention he has relied a decision of the National Commission reported in 2007 [III] CPJ Page 308 wherein it was held that a complaint under the Consumer Protection Act claiming compensation from the railway is barred by Railway Claims Tribunal Act.<br /> <br /> The learned of counsel for the complainant would argue that this Forum has already entered into a finding that this complaint is maintainable before this Forum and therefore, the present contention cannot be entertained. As a matter of fact ,there is no considered order passed by this Forum with regard to the maintainability of this complaint before this Forum, but only a casual remark in the order sheet. A perusal of the case records also shows that no considered order was passed by this Forum with regard to the maintainability of this complaint. Therefore, we are of the view that there is no considered finding regarding maintainability. . It is worth pointing out in this context that the Hon’ble High Court of Kerala has held though in a different context that “no judge or court will be bound by prima-facie findings at preliminary or interlocutory stage when finally deciding the case in the light of evidence and materials before him/it”[2008 [1] KLT 71]. <br /> <br /> Even assuming that there is a considered finding by this Forum regarding the maintainability of the complaint in the change of circumstances and the law settled by Apex Court and National Commission this Forum has no jurisdiction now to award compensation to the complainant herein. It is to be noted that the Railway Claims Tribunal Act 1987 is a special statute and Consumer Protection Act 1986 is a general statute and it goes without saying that a special statute will prevail over a general statute. It is also pertinent to point out that the learned counsel for the complainant argued the matter based on the Railway Act 1989 and not on the basis of the Railway Claim Tribunal Act 1987 which is fortified by the argument note filed by him.<br /> <br /> It is worth pointing out in this context that the complainant herein has sought for damages for the non delivery of articles sent by him and has not make any claim for the deficiency in service. Therefore ,that aspect also cannot be considered by this Forum. The learned counsel for the opp.party argued that even a claim for deficiency in service cannot be adjudicate by the Consumer Forum since the Railway Claim Tribunal Act is armed with provisions for adjudicating the question of deficiency in service also . In the light of the finding of the National Commission referred to above this Forum is without jurisdiction to grant any of the reliefs prayed for by the complainant.<br /> Point found accordingly.<br /> <br /> In the result the complaint fails and the same is dismissed. No costs. <br /> <br /> <br /> <br /> Dated this the 14th day of February, 2008.<br /> <br /> <br /> <br /> K. VIJAYAKUMARAN ACHARY :<br /> <br /> <br /> ADV. RAVI SUSHA :<br /> <br /> <br /> <br /> List of witness for the complainant<br /> PW.1. Anil John<br /> <br /> List of documents for the complainant<br /> P1. – Invoice<br /> P2. - Receipt<br /> P3. – Letter sent by complainant to the Officer In Charge Parcel Office<br /> P4. – Letter sent by Ramadev Enterprises to the Chief Commercial Mager’s Office<br /> P5. –Letter sent by complainant to the M.M> GENCIES<br /> P6.- Letter sent by complainant to the Chief Claims Officer<br /> P7. –Letter sent by Southern Railway to the complainant<br /> P8. – Letter sent by Southern Railway to the complainant<br /> P9. – Letter sent by Southern Railway to the complainant<br /> P10. – Letter sent by Southern Railway to the Aswathy shopping complex<br /> P11. – Letter sent by complainant to the Southern Railway<br /> P12. – Letter sent by complainant to the Chief Commercial Manager.<br /> P13. – Letter sent by Southern Railway to the Anil John.<br /> P14. – Letter sent by complainant to the Chief Commercial Manager<br /> P15. – Letter sent by complainant to the Chief Commercial Manager<br /> <br />