Heard learned counsel for the appellant.
None appears for the respondent although notice against him is made sufficient.
2. This is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. Learned counsel for the appellant submitted that the complainant alleged that on 7.11.2008 he booked five packets of goods with the OP - Railway at Raipur Railway Station for their delivery at Bolangir. The complainant alleged inter alia that on 9.11.2008 when he went to release the packets, found one packet was missing and in spite of all efforts to find out the packet of goods, all such effect went in vain. OP also did not take any action. So the complainant claiming the value of the packet for Rs.45,000/- and compensation thereof filed the complaint before the learned District Forum by alleging deficiency of service on the part of the OP.
4. Learned counsel for the appellant submitted that the OP filed written version stating that complaint is not maintainable as the Railway Claims Tribunal Act, 1987 and the Railways Act, 1989 are enough to entertain the claim. It is also averred in the written version that the complainant has not proved necessary booking of these five packets and as such OP has not taken any action to search for the packet thoroughly. Due to missing of the same, they have no deficiency of service on his part.
5. Learned District Forum after hearing both parties passed the following impugned order:-
“xxx xxx xxx
The OPs are directed to pay a sum of Rs.45,000/- to the complainant along with interest @7% PA from 4.11.2008 till payment. In the facts and circumstances of the case no compensation and cost is awarded.”
6. Learned counsel for the appellant submitted that first of all learned District Forum committed error in law by not deciding the maintainability of the consumer complaint because under the Railway Claims Tribunal Act, 1987 read with Railways Act, 1989 the jurisdiction lies with the Railway Claims Tribunal to entertain the complaint whereas the consumer complaint on the same issue is not maintainable. Learned District Forum ought to have decided the issue of maintainability at first instead of deciding the case on merit.
7. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering the facts relevant. The complainant has booked five packets of goods but one of the packets has been missing and such dispute is squarely under the purview of section - 13 and 15 of the Railway Claims Tribunal Act and section 103 of the Railways Act also in the similar manner prescribed so. In support of his submission, he also cited the decision of this Commission in the case of Divisional Railway Manager, East Coast Railway vrs. Nanda Sagar Sahoo passed in FA No. 482 of 2008 and the Hon’ble National Commission in the case of Union of India and another vrs. M..Adikalam 1993 1 CLT (NC) 550 Kundan Lal Jayaswal vrs. Executive Director (P.G.) Cell and another 2018 3 CPR (NC) 119 and General Manager, West, Central Railways and others vrs. Yash Industries and another 2013 4 CPR (NC) 54. On merit also, he submitted that the learned District Forum ought to have gone through the materials on record and decide the case on merit but it failed to apply the judicial mind to the fact that the complainant has not proved which packet has been missing and whether for that packet the claim amount of Rs.45,000/- has been mentioned or not. On the whole, the learned District Forum has lost sight of the material fact and the law applicable to this case. So he submitted to allow the appeal by setting aside the impugned order.
8. Considered the submission of learned counsel for the appellant and perused the DFR including the impugned order.
9. It is settled in law that complainant has to prove the deficiency of service on the part of the OPs.
10. In the instant case, it is admitted fact that the complainant has booked five packets at Raipur Railway Station in the train for carrying same to Bolangir. It is not in dispute that the complainant had been to Bolangir Railway Station and also found one packet was not there. It is well settled in law that before going through to the merit of the case, the maintainability of the complaint should be decided first.
11. Section 13 of the Railway Claims Tribunal Act , 1987 prescribed about jurisdiction, powers and authority of Claims Tribunal and also Section - 15 relates to the bar of jurisdiction. On going through both the provisions, it appears that the Claims Tribunal is competent to decide the compensation for loss, destruction, damage, deterioration or non-delivery of goods entrusted to the railway administration for carriage by railway. In this regard the Railway Claims Tribunal Act has got the jurisdiction and no other authority has jurisdiction. Section - 3 of the Consumer Protection Act, 1986 also speaks that the Act is in addition to but not in derogation to any other law for the time being in force. It is true that relief of Consumer Protection Act is in addition to the provision of Railway Claims Tribunal Act but the matter where there is strict bar, the provisions of Consumer Protection Act will not come into play so far goods are concerned. In the instant case since the matter relates to missing of goods the learned District Forum has committed wrong by entertaining the claim.
12. So far merit is concerned, the complainant has not proved which packet has been missing and what are the contents thereof. So on merit also the complainant has no evidence.
13. In view of aforesaid discussion, this Commission is of the view that the impugned order of the learned District Forum is not in accordance with law and the same should be set aside and it is set aside.
14. The appeal stands allowed. No cost.
DFR be sent back forthwith.
Statutory amount deposited be refunded to the appellants with interest accrued thereon, if any on proper identification.
Supply free copy of this order to the respective parties.
