O r d e r

1. Present appeal has been filed on behalf of Railways for setting aside the judgment and order dated 22.02.2017 passed by Ld. District Consumer Forum, Saharsa whereby and whereunder appellant have been directed to make payment of Rs. 2,00,000/- as compensation to the complainant for loss of consignment of two bundles of books in luggage van booked by complainant.
2. Briefly stated the facts of the case is that complainant on 29.06.2008 booked three consignment which included one Motorcycle and two bundle of books weighing 175 KG in Purba Express from old Delhi Railway station to Saharsa station bearing RR no. 969034 and paid the charges for said booking.
3. Complainant after reaching Saharsa on 01.07.2008 at around 3:10 AM enquired about the booked articles and came to know that only motorcycle was loaded in Purba Express and other consignments i.e two bundles of books were not loaded. Complainant received his motorcycle got a slip about the non-availability and non-receiving of two remaining consignments and was assured that articles will be delivered soon.
4. Complainant thereafter, visited the concerned office several times but no information with respect to missing articles were given to complainant. Complainant thereafter, went to Katihar and came to know that the consignment was dispatched for Saharsa on 02.07.2008 through Mahananda Express but due to carelessness of Railway employees it was not unloaded at Katihar Station but was over carried to Alipur Duar the final destination of Mahananda Express from where consignments were sent back to Delhi and thereafter, same became traceless.
5. Complainant thereafter registered a complaint to DRM Katihar on 15.07.2008 but no action was taken on his complaint he filed Consumer Complaint Case for delivery of two missing consignment or its value as well as compensation for mental and physical harassment and cost of litigation upon which notices were issued to Railways and they appeared and filed their written statement.
6. In their written statement opposite parties have stated that section 13 and 15 of the Railway Claims Tribunal Act, 1987 bars the jurisdiction of other courts to try  cases of non-delivery of booked consignments. The railway administration decided to settle the claim of complainant by paying Rs. 7,800/- but the complainant refused to accept it. Complainant at the time of booking never declared value of the goods to escape payment of percentage charge and in absence of which complainant was paid compensation of Rs. 7,800/- in terms of weight rather on actual price under section 103 of the Railways Act.
7. The District Consumer Forum after hearing both the parties and considering the materials available on record held Railways to be negligent and careless causing loss and harassment to complainant. The District Consumer Forum further found railway to be deficient in service and awarded compensation of Rs. 2,00,000/- to be paid within 30 days from the date of order failing which interest @7% p.a shall become payable.
8. Aggrieved by judgment and order dated 22.02.2017 Railways have preferred this appeal before the State Commission.
9. Heard counsel for the parties. Perused the impugned order as well as materials available on record including written notes of argument filed by parties.
10.  The Railways Act, 1989, Section 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.

11. The proviso to Section 103 of the Railways Act, 1989 stipulates extent of liability of railways for any loss of article booked by railways for which two options are available to consigner either to book the consignment on its weight or on its value. In case of loss of consignment, compensation is assessed and paid on the basis of such booking. In present case complainant had booked his consignment and paid the charges on the weight of the consignment and not on the value of consignment. In case of loss the railways has to pay compensation on the basis of weight of the consignment which was calculated as Rs. 7,800/- and complainant can not claim or granted compensation for loss on the basis of value of compensation as consignment was not booked on value of consignment.
12. Both proviso are separate and distinct and stipulates two methods of booking of consignment having two rates of booking i.e weight and value and in case of any loss in-transit two modes of calculation has been prescribed to calculate the amount of compensation to be paid to the consigner for the loss suffered by him as such complainant is entitled for compensation of Rs. 7,800/- as calculated by the railways in terms of provisions made under Railways Act, and notification issued thereunder.
13.  Any short coming, imperfection or inadequacy in the quality nature and manner of performance amounts to deficiency in service. If the service provider like the railways does not deliver the consignment and is lost in transit due to negligence and carelessness of railway employees resulting in mental agony,  physical and mental harassment to consumer he is entitled for adequate compensation for the agony, harassment and other sufferings suffered by him which in present case is quantified to be Rs. 50,000/-.
14.  The appeal is partly allowed and appellants are directed to pay Rs. 7,800/- with interest @8% per annum from the date of filing of complaint case and to further pay Rs. 50,000/- as compensation as well as cost of litigation within two months from the date of receipt/production of a copy of order passed by this Commission.         

(Ram Prawesh Das)                                                                                                            (Sanjay Kumar,J)

       Member                                                                                                                            President

Md. Fariduzzama