KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APEPAL No. 23/2009 JUDGMENT DATED: 23-01-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT SHRI. M.K. ABDULLA SONA : MEMBER APPELLANTS 1. General Manager, Southern Railway, Madras. 2. Chief Claim Officer, Southern Railway Moore Market, Madras. 3. Divisional Commercial Manager, Claims, Divisional Office, Southern Railway, Palakkad. 4. Railway Divisional Manager, Southern Railway, Thiruvananthapuram. (Rep. by Adv. Sri. S. Renganathan) Vs RESPONDENT K.M. Chakko, Kunnath House, Ambayathodu P.O., Kandappunam, Kottiyur, Kannur. (Rep. by Adv. Davy Cherian & Narayan. R) JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appellant is the opposite party/Authorities of Southern Railway in CC No. 44/08 in the file of CDRF, Kannur. The appellant is under orders to pay a sum of Rs. 23,000/- as compensation with interest at 7% per annum from the date of the order and costs of Rs. 300/-. 2. The case of the complainant is that he booked a parcel of rubber stumps from Thiruvananthapuram Railway Station to Kannur on 03-01-2008. But the same did not reach the destination on the next day. He waited till 22.30 hours but in vain. He was told that the parcel was lost. After 4 days he was informed that the consignment is lying at the Kannur Railway Station. But by the time the rubber stumps had become useless. He complained the matter to the higher officials on 12-01-2008. But he received a curt reply directing to withdraw the complaint. The cost of the lost rubber stumps is Rs. 16,500/- for 1,100 stumps at the rate of Rs. 15 per stump. He has sought for the same and a compensation of Rs. 10,000/- and also the traveling expense altogether amounting to Rs. 30,108/-. 3. The opposite parties/appellants in the version filed has admitted the booking of the parcel and loading of the same in the train on 03-01-2008. According to them, the complainant refused to take delivery although he was asked to do so by letter dated 17-01-2008. The opposite parties have relied on Rule 118 of the Indian Railway Conference Association, Coaching Tariff No. 25 Part I (Vol. I) that the railways do not guaranty despatch of articles etc, by any particular train or delivery within any definite time or period. It is also contended that in case of loss the liability is restricted u/s 103 of the Railways Act, 1989 r/w Rule 3 (ii) of Railways (extent of Monetary Liability and prescription of percentage charge) Rules 1990. Hence the complainant is entitled only for compensation at the rate of Rs. 50 per kg. In the instant case, the consignment weighed 100 kg. Hence the complainant would be entitled only for Rs. 5,000/-. It is also pointed out that as per the Railway 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 as certain percentage charge is levied which the complainant has not paid. 4. The evidence adduced consisted of the testimony of PW1, DW1, Exts. A1 to A5. 5. PW1 is the complainant himself and DW1 the Chief Parcel Supervisor at Kannur. We find that DW1 has stated that the parcel happened to be taken to Mangalore the terminal of the particular train. According to him he had contacted the office at Mangalore and they had assured to sent it, if found, by the next train. Only on the 6th the parcel was received back. They contacted the complainant but he did not come to receive the parcel. According to PW1, the stumps would not be of any use, as the same has to be planted immediately. According to him, he was told by the Railway staff that the parcel might have been lost although he had waited up to 10 O’ clock in the night on the 4th and checked every train that came from Thiruvananthapuram. According to him subsequently he had examined the stumps at the Railway Station after one week when he was informed by the opposite parties but found that all the stumps were of no use. He has also produced the complaint that he filed before the opposite parties and the railway receipt and the reply that he received from the opposite parties. Ext.A1 the bill dated 03-01-2008 would show that he has paid Rs. 16,500/- for 1100 budded stumps of RR 11-105 category from Sree Narayana Rubber Nursery, Sivapuri, Kanyakumari District. It was a high yielding variety of rubber stumps. Ext. A5 is the reply dated 04-02-2008 from the Head Quarters of the opposite party, commercial/claims. In Ext.A5, he has been told to take delivery of the consignment and withdraw the claim. There is no explanation with respect to the details of the complaint that he preferred, the copy of which has been produced as Ext.A3. We find that the case of the complainant that the rubber stumps that was received at Kannur Station belatedly was of no use has not been disputed in the version. The contention of the appellant is confined to Rule 3 (ii) of Railways (extent of Monetary Liability and prescription of percentage charge) Rules 1990 wherein the compensation is limited to Rs. 50 per kg. It is also pointed out that as per the Rules the consignor has to declare the value of the consignment in the Forwarding Note. We find that it is not explained as to whether the complainant was informed as to the requirement to declare the value of the consignment. DW1 himself has stated that the particular consignment might have been loaded under the other consignments in the loading compartment and hence the same could not be traced out at Kannur. Had they been vigilant, the parcel would have been located at Mangalore and transmitted by the same train or some other train to Kannur. DW1 has stated that they had contacted the Mangalore Railway Station but could receive the parcel back only on the 6th. Evidently, there is negligence on the part of the opposite parties. It is repeatedly mentioned in the order of the Forum that the complainant is a poor cultivator. He had travelled all the way to Kanyakumari District and brought the rubber stumps in the same train. We find that it is not proper for the opposite parties to take shelter under the particular provision and content that the liability is limited to Rs. 50 per kg. Evidently, negligence is on the part of the staff of the opposite party who has loaded the article under the other consignments in the wagon and hence the same could not be taken out at Kannur and even after reaching Mangalore no effort was made to identify the parcel and return it to the destination. It is indifference and callous negligence on the part of the opposite parties that has resulted in the particular situation. In the circumstance, we find that it is not a fit case for interference. In the result, the order of the Forum is confirmed and the appeal is dismissed. The office will forward the LCR to the Forum. JUSTICE K.R. UDAYABHANU: PRESIDENT M.K. ABDULLA SONA : MEMBER | 
