BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BHIWANI

                                                Complaint Case No. 162 of 2018

                                                Date of Institution: 5.12.2018

                                                Date of Decision: 27.9.2022

Ajit Singh, c/o M/s Ram Synthetic, Industrial Area, Plot No. 27, Sector-26, Bhiwani, Tehsil and District Bhiwani.

                                                        ….Complainant.

Versus

1. The Chief Commercial Manager, Northern Railway, head office Claim Branch, N.D.R.C. building State Entry Road, New Delhi.
2. The Station Superintendent, Bhiwani Junction, Railway Station, Bhiwani.

                                                        …....OPs/Respondents. 

COMPLAINT UNDER SECTION 12 & 13 OF

                THE CONSUMER PROTECTION ACT, 1986

Before: -   Sh. Vijay Singh, President.

                Smt. Saroj Bala Bohra, Member

Present:    Sh. H.S. Tanwar, Adv. for complainant.

                Sh. Mahipal Singh Tanwar, Adv. for OPs.

ORDER:-

              Ajit Singh (hereinafter referred to as “complainant”) has filed the present complaint under Section 12 & 13 of Consumer Protection Act, 1986 against the opposite parties (hereinafter referred to as OPs) stating that the complainant had purchased six sacks of ‘Niwar’ from M/s Ram Synthetic, Sector-26, Bhiwani and booked the same vide PW Bill No. 865829 dated 24.5.2014 for sending to Saharanpur from Railway Station Bhiwani. It is averred that when the compainant received the said sacks from Saharanpur Railway Station through the OPs department, he did not receive two sacks weighing 122 Kgs. It is averred that the complainant has suffered losses of Rs. 12,444/-(i.e. Rs. 102/-per Kg. of two sacks) due to the negligence of raiway department/OPs and the complainant has received a Short Certificate from the Railway Authority, Saharanpur in this regard. The complainant made a written complaint to the OP No.1 on 19.7.2014 for payment of Rs. 12,444/-and upon this, the OPs issued a letter No. Cell-III-SRE-1031401099-8-14 dated 17.9.2014 seeking some documents from compainant but despite submission of documents and reminder dated 27.1.2015, the OPs failed to make the payment. Ultimately, the OPs illegally and unlawfully declined the claim on the ground of “Non pursuance by claimant” whereas the complainant had properly pursued the claim by making several reprsentations to the OPs orally as well as in writing.  It is averred that such act of the OPs for declining the claim of complainant is wrong, illegal, against law and facts and the same is not binding on the rights of complainant. It is averred that the complainant has also filed a civil suit No. 170-Rec. (RBT) of 2016/2017 but the same has been dismissed by the court of Ms. Sanchita Singh, Learned Civil Judge (JD), Bhiwani vide judgment dated 19.2.2018. The appeal was also dismissed by the court of A.S. Narang, learned District Judge, Bhiwani vide judgment dated 14.9.2018 on the ground of jurisdiction. But as the complainant is the consumer of the OPs and this Forum at Bhiwani has jurisdiction to entertain, try and decide the present complaint, hence, this complaint has been filed by the complainant seeking directions against the OPs to pay Rs. 12,444/-as price of lost sacks along interest, compensation and the litigation expenses besides any other relief which this Commission may found deem fit and proper.

2.             Upon notice, the OPs appeared and filed the written statement taking some preliminary objections that the complaint of complainant is not maintainable against Railway Administration, the complainant is estoped from filing the present complaint etc. and averred that the complainant had not declared the value of consignment at the time of booking. The consignment was not delivered at destination. Railway accepts the liability as per section 103 of Railway Act read under the rules framed under the said section. As per section 3 of said rules, claim is liable to be settled as per law. The complainant has earlier filed a civil suit before the Civil Court at Bhiwani which was dismissed on 19.2.2018 and the appeal filed by the complanant before the District Judge, Bhiwani was also dismissed vide order dated 14.9.2018 and the present complaint being time barred, is liable to be dismissed. It is averred that only Railway Claims Tribunal has got jurisdiction to entertain such claim and no any other court or Authority shall have jurisdiction in respect of matter entrusted to the Railway Claims Tribunal. On merits, it is averred by the OPs that the complainant has not declared the value of conginment at the time of booking, hence, the value assessed by him is not admitted. The complainant had booked six sacks total weight of 300 Kgs out of which he already received four sacks weighing 238 Kgms and in this way, the complainat has received 62 Kgs. short and the Railway has issued short certificate issued by Railway Authority, Saharanpur. It is averred that the Railway accepts the liablity as per section 103 of Railway Act and as per section 3 of the said Rules, claim is liable to be serttled as per law.  It is averred that the complainant is not entitled for any relief and accordingly, dismissal of compaint with heavy costs has been sougth by the 

3.             To prove its case, counsel for complainant has tendered into evidence the affidavit of complainant as Ex. CW1/A and documents Annexure C-1 & Annexure C-2 and closed the evidence on 16.1.2020.  On the other hand, the counsel for OPs tendered into evidence affidavit of Sh. Daharampal, CPS, Station Bhiwani as Ex. RW-1/A and documents Ex. R-1 to Ex. R-4 and closed the evidence on 31.8.2022.

4.             We have heard the arguments of learned counsel for both the parties and with their able assistance, gone through the file very carefully and minutely.  It is admitted fact between the parties that the complainant after purchasing six sacks of ‘Niwar’ from Bhiwani, booked the same vide bill No. 865829 dated 24.5.2014 for sending to Saharanpur from Railway Station, Bhiwani. It is also not in dispute that out of six sacks, the complainant had received only four and remaining two found missing and were not made available by the OPs despite repeated complaints by the complainant but the OPs have disputed the complaint on the ground that the complainant had not declared the value of missing sacks at the time of booking and that railway department accepted the liability only as per section 103 of the Railway Act. Another point raised by the OPs seeking dismissal of complaint is that the claim of complainant has already been dismissed by the Civil Court as well as Appellate Court and thus, this complaint is not maintainable before this Commission.

5.             No doubt, when the OPs have failed to trace out the missing sacks of complainant, then the complainant filed a civil suit seeking recovery of Rs. 12,444/-i.e. the value of product but the civil suit of complainant has been dismissed on the ground that civil court had no jurisdiction to try and entertain the claim of complainant and appeal preferred by the complainant against order dated 19.2.2018 was also dismissed by learned District Judge vide order dated 14.9.2018. The present complaint was filed on 5.12.2018 i.e. within a period of three months from the date of dismissal of appeal on 14.9.2018. Complainant has not concealed the fact of filing of civil suit regarding recovery of loss due to the negligence of the OPs while filing the complaint. Thus there is nothing on the part of complainant that he had concealed the material facts from this Commission.

6.             As the OPs has admitted that  due to the negligency of some official, the consignment was missing . It is also admitted that at the time of booking, the complainant had paid the amount of Rs. 575/-, hence, the complainant was consumer of the OPs.

7.    As far as second argument that the complainant did not disclose the value of sacks is concerned, it was open for the OPs who could insist the complainant to disclose the same but no such effort was made by the OPs. A duty is caste upon the Railway authorities to deliver the consignment to the consignee in its original form without causing any damage to it having accepted the same after collecting the requisite charges. The missing of two articles are further verified by the railway authority which is also evident from document Annexure C-1 as well as Annexure R-1.

8.               As far as the argument of learned counsel for OPs that the Railway accepted the liability as per section 103 of Railway Act read with the rules framed under the said section. We have gone through section 103 wherein Railway accepts the liability as per section 103 of Railway Act. Section 103 says that the railway administration shall not be responsible for any loss, destruction or damage, which is in direct or any consequential. The language of section 103 is reproduced as under:-

Section 103 in The Railways Act, 1989

103. Extent of monetary liability in respect of any consignment.—

(1) Where any consignment is entrusted to a railway administration for carriage by railway and the value of such consignment has not been declared as required under sub-section (2) by the consignor, the amount of liability of the railway administration for the loss, destruction, damage, deterioration or non-delivery of the consignment shall in no case exceed such amount calculated with reference to the weight of the consignment as may be prescribed, and where such consignment consists of an animal, the liability shall not exceed such amount as may be prescribed.

(2) Notwithstanding anything contained in sub-section (1), where the consignor declares the value of any consignment at the time of its entrustment to a railway administration for carriage by railway, and pays such percentage charge as may be prescribed on so much of the value of such consignment as is in excess of the liability of the railway administration as calculated or specified, as the case may be, under sub-section (1), the liability of the railway administration for the loss, destruction, damage, deterioration or non-delivery of such consignment shall not exceed the value so declared.

(3) The Central Government may, from time to time, by notification, direct that such goods as may be specified in the notification shall not be accepted for carriage by railway unless the value of such goods is declared and percentage charge is paid as required under sub-section (2).

9.             It is not in dispute that the claimant has not declared the value of consignment at the time of booking, thus clause (2) of Section 103 of the Act is not applicable in this case.

10.           The main contention of the learned counsel for the OPs is that as per section 13 of the Railway Claims Tribunal, this Commission has no jurisdiction to try and entertain the present complaint which is relating to the loss to the consignment and only Railway Claims Tribunal has the jurisdiction. The aforesaid submission of learned counsel for OPs has been refuted by the learned counsel for complainant stating that section 3 of Consumer Protection Act, 1986 is in addition and not in derogation of rights under any other law. Therefore, the rights of the consumer under the Consumer Protection Act, are not affected by the Railway Act, 1989. But this submission of learned counsel for complainant does not hold the ground.

11.             Section 13 of the Railway Claim Tribunal Act, 1987 deals with jurisdiction, Powers and Authority of Claims Tribunal stating that the Claims Tribunal shall exercise, on and from the appointed day i.e. 8^th November 1989, all such jurisdiction, powers and authority as were exercisable immediately before that day by any civil court or a Claims Commissioner appointed under the provision of the Railway Act.

1. Relating to the responsibility of the Railway Administration as carrier 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 Railway;

2. Compensation payable under section 124-A of the Railway Act and or the rules made thereunder and;

3. In respect of claims for refund of fares and freight thereof or for refund of any freight paid in respect of animals or goods entrusted to a Railway Administration to be carried by Railway.”

12.           Bare language of section 13 makes it clear that for the loss, obstruction and damage to the delivery of any consignment, affected person can challenge the same before the Railway Claims Tribunal. Section 28 of the Railway Claims Tribunal Act, which says that this Claims Tribunal Act have overriding effect. The provision of this Act shall have effect non-withstanding anything in consistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any law other than this Act. So from Section 28 and 103 of the Railway Act, it is clear that Railway Claims Tribunal has jurisdiction to try such complaint as envisaged in the Railway Claims Tribunal. Thus, we agree with the submission of learned counsel for the OPs that this Forum has no jurisdiction to try and entertain the present complaint of the claimant and moreover, both the Civil Court as well as learned District Court, Bhiwani dismissed the complaint of complainant holding that in respect of any short delivery only Railway Claims Tribunal has got jurisdiction. Thus the complaint is hereby dismissed for want of territorial jurisdiction.

13.           The parties concerned be communicated of the order accordingly.

                 File be consigned after due compliance.

Announced.

Dated: - 27.9.2022

                             (Saroj Bala Bohra)             (Sh. Vijay Singh)

                               Member                                      President,

                                                                      District Consumer Disputes

                                                              Redressal Commission, Bhiwani.