DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No. 47 of 2015
Date of filing: 11.02.2015 Date of disposal: 04.4.2016
Complainant: Dr. Ayan Sain, S/o. Sandip Sain, 21, Natunpally, Burdwan, PO, PS & District: Burdwan.
-V E R S U S-
Opposite Party: 1. Station Manager, Burdwan Railway Station, PO, PS & District: Burdwan, PIN – 713 101.
2. The Chief Commercial Manager, Eastern Manager, 3 No. Kollaghat Street, Kolkata – 700 001.
3. Commercial Supervisor, Luggage & Parcel Office, Barddhaman Railway Station, Eastern Railway, PO, PS & District: Burdwan, PIN – 713 101.
4. Senior Divi. Commercial Manager, Howrah, Eastern Railway, Howrah.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: R. S. Ganguly, Authorized Representative.
Appeared for the Opposite Party: Ld. Advocate, Arindam Mukherjee.
J U D G E M E N T
This complaint is filed by the Complainant alleging deficiency in service as well as unfair trade practice against the OPs as some valuable articles have been lost from the custody of the OPs which was booked by him with the OPs and till date the OPs did not take any step to compensate the same.
The brief fact of the case of the Complainant is that being a doctor by profession and after completion of the Diploma from the University at Jhansi, Uttar Pradesh, he was returning to Burdwan from Jhansi on 26.06.2014 by train. He booked one motorcycle and three sets of luggage in the Chambal express, Down Train no-12176. Jhansi Parcel Office of Central Railway issued a luggage ticket on 26.06.2014 being no-B543642 in favour of the Complainant and the Complainant paid all charges for the ticket and service given by the Central Railway. The said three sets of luggage was full of valuable medical books, journals, shoes and other medical equipments and the approximate cost of the said articles is of Rs.1,20,000=00. Out of the three sets of luggage and one motorcycle the Complainant only received his motorcycle on 03.07.2014 and on that date one due slip was issued by the luggage and parcel office of Eastern Railway, Burdwan. Thereafter on 19.07.2014 the Op-3 issued a short certificate to the Complainant acknowledging the booking luggage of 4 packets and out of the four packets only one motorcycle was delivered on 03.07.2014. In the said short certificate it was also written that ‘due/short three (3) bundle of books’. The mother of the Complainant lodged a complaint before the Deputy Station Manager, Burdwan in respect of non-delivery of three sets of luggage on 14.07.2014 and against the complaint the OP-4 sent a reply to her on 17.07.2014. The Complainant informed this matter of non-receipt of three sets of luggage to the OP-2 on 14.07.2014 in writing, which was duly received by the OP-2 by putting seal and signature of its office, but since then no fruitful step had yet been taken by the OPs. The Complainant made further application to the OP-2, but to no effect. Legal notice was sent through his Ld. Advocate to the OP-2 on 13.08.2014 stating the entire fact and alleging negligence and deficiency in service of the OPs and request was also made by him to return the three sets of luggage or to pay adequate compensation to him within 48 hours from the date of receipt of the said notice. Inspite of receipt of the letter the OPs did not take any step either returning the said luggage or to pay compensation till filing of this complaint, which amounts to deficiency in service and unfair trade practice on the part of the OPs. Due to such inaction of the OPs the Complainant is suffering from great professional loss, mental pain, agony and harassment and finding no other alternative this complaint has been initiated by the Complainant before this Ld. Forum praying for direction upon the OPs for making payment of Rs.1,20,000=00 towards the cost of the articles i.e. valuable medical books, journals, laptop, several important notes, dress, shoes and other medical equipments, Rs.60,000=00as compensation due to professional loss, mental pain, agony and harassment and litigation cost of Rs.25,000=00 to him.
The petition of complaint have been contested by the Ops by filing conjoint written version contending that the Complainant booked three packets of books and one motorcycle with the OPs during his return from Jhansi to Burdwan on 26.06.2014. Though it is stated by the Complainant that in the packets there was full of valuable medical books, journal, important notes, laptop, dresses, shoes and other medical equipments, but during booking the Complainant had only stated that in the three packets there were books and if he disclosed the types of the goods the charge towards the goods material would have been changed and thus it can be safely said that the Complainant did not pay the full charge for the entire goods and for this reason he cannot come under the purview of the consumer as defined under the Act. The Ops have mentioned that there is Rule in the Indian Railways that the valuable goods which are put for transportation, the value of the said valuable goods have to be declared by the consignee so that the Indian Railways give insurance coverage on that and the said charges are very nominal. But the Complainant did not disclose that there were valuable goods in the packets and without giving such charges now trying to take advantage through an illegal and unlawful manner. The porters of the authorized contractor used to keep the luggage in the proper goods train and at the time of delivery it was found that only the motorcycle was transported to Burdwan and other three packets were missing from the train. As the Ops have declared their responsibility in the short certificate and the claim case is still open, hence on the self-same issue this complaint filed by him cannot be maintainable. As the allegation of non-delivery of goods has been made by the Complainant, the same is maintainable under the Section -13 of the Railway Claims Tribunal Act, 1987 and this ld. Forum has no authority to adjudicate the instant complaint. Accordingly prayers have been made by the OPs for dismissal of the complaint with exemplary cost.
The Complainant has filed evidence on affidavit along with some documents and the OPs have also submitted some documents in support of their contentions. We have carefully perused the record; the documents filed by the parties and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that admittedly the Complainant booked some articles with the OPs during his train journey from Jhansi to Burdwan. The booking receipt dated 26.06.2014 issued by the Railway Authority reveals that the Complainant booked one YAMAHA Motorcycle (old and used & without packing & petrol tank empty) and three bundle of books with the OPs during his return journey from Jhansi to Burdwan. The document further reveals that the Complainant disclosed the price of the Motorcycle, but did not disclose the value of the three bundle of books at the time of booking the articles before the OPs. The value of the Motorcycle has been declared by him for Rs.20,000=00. The case of the Complainant is that in the three bundles there were valuable medical books, journals, laptop, important notes, shoes, dresses and medical equipments. In the petition of complaint it has been stated that the value of the abovementioned article is of Rs.1,20,000=00 in gross. The allegation of the Complainant is that though the OPs have duly delivered him the YAMAHA Motorcycle, but did not return the three bundles booked with the OPs till filing of this complaint. It is further submitted by the Complainant that though the OPs have admitted that three bundles have been missed from their custody and due to this reason the same was not delivered to the Complainant, but the Ops did not take any fruitful step in this regard inspite of receipt of several written correspondences from the end of the Complainant. As the grievance of the Complainant had not been redressed by the OPs, hence this complaint is initiated praying for certain releifs. We have noticed that as the Complainant did not receive those bundles; the Ops have issued one Due/Short Certificate mentioning that those bundles as ‘Missing’. Therefore it is clear that though the Complainant received the motorcycle, but not received three bundle of books and the weight of those bundles is of 66 kgs. During hearing the Ld. Counsel for the OPs has argued that as it is a claim case of the Complainant in respect of missing of three bundles of books booked with the OPs during return journey from Jhansi to Burdwan, the Complainant is under obligation to approach before the Railway Claims Tribunal according to the Railways Claims Tribunal Act, 1987 praying for either return his booked article or to pay adequate compensation as per the said Act. But the Complainant cannot approach before this Ld. Forum and as there is another Forum for adjudication of the complaint of the Complainant, this Ld. Forum has no authority to try with the instant complaint. The OPs have prayed for dismissal of the complaint on that score and it is further argued by the Ld. Counsel for the OPs that the Complainant had already lodged a complaint before the said Tribunal and the same is still pending. The OPs have put their reliance on the Section 13 of the Railway Claims Tribunal. We have carefully perused the said Section and noticed that it is enumerated which runs as follows-
13. Jurisdiction, powers and authority of Claims Tribunal- (1) The claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of the Railway Act-
(a) relating to the responsibility of the railway administrations as carriers under Chapter-VII of the Railways Act in respect of claims for-
(i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;
(ii) in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.
(1A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Section 12A of the Railways Act, 1989, all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claim for compensation now payable by the railway administration under Section 124A of the said Act or the rules made thereunder.
(2) The provisions of the Railways Act and the Rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act.
In respect of such argument the Ld. Counsel for the Complainant has relied on the Section 3 of the Consumer Protection Act, 1986, wherein it is enumerated that-
3. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
In this respect we are to say that Consumer Protection Act, 1986 (CPA) has been enacted by the Parliament specially for consumers with special object to promote some basic rights of consumers, namely the right to be safety, to be informed of quality, potency and purity of products, to access to variety of goods of competitive prices, to redressal of grievances and to consumer education and the CPA has covered all important aspects of the United Nations Guidelines for Consumer Protection. The Consumer Forum established under the CPA does not exercise jurisdiction upon each and every matter, rather the jurisdiction of the Consumer Forum can be invoked only on the matters/disputes where the consumer element is involved. As per Section 3 of the CPA, the provisions of the Act shall be in addition to and not in derogation to any other provisions of any other law for the time being in force. Having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clear bar. So despite provisions for referring the dispute to arbitration/tribunals in the certain Acts/Laws, the object and purpose of the CPA can be frustrated as the provisions of the CPA are in addition and not in derogation of any other law in force. Moreover the CPA is not a general law, but a special law enacted for the better protection of the interests of the consumers and it is the settled principle that Special Law prevails over the General Law.
In the case in hand the Complainant has successfully proved that he is a consumer as he availed of the service of the railway by making payment of consideration amount. Therefore the instant complaint is well maintainable before this Ld. Forum as the Complainant can easily be termed as a consumer the Railway as service provider. So the argument as advance by the Ld. Counsel for the OPs does not stand at all.
Now we are to find out as to whether the complainant is entitled to get relief as sought for in the complaint or not.
It is mentioned by the Complainant that in the lost three bundles there were valuable medical books & journals, laptop, dresses, shoes and medical equipments and the value to those articles has been mention for Rs.1,20,000=00. From the reverse page of the booking receipt it is evident in the clause no-2 of the Explanatory Notes that ‘Railways are not responsible for any loss, destruction, damage or deterioration of package containing/piece of articles specified in the Second Schedule to the Indian Railways Act whose value exceeds Rs.500/- per package or piece unless the contents of each package and value of excepted articles are declared at the time of booking and engagement entered into pay the percentage charge on value for increased risk, the declaration must be made in clause (2) over-leaf and the word engage or the words do not engage struck out as required.’ In respect of such clause we are to say that admittedly other than the petition of complaint nowhere the Complainant had declared the value of the articles which were in the three bundles, but as per Railway Act it was the bounden duty of the Complainant to disclose the same at the time of booking the three bundles with the OPs. Now the complainant has claimed that the value of the three bundles is of Rs.1,20,000=00, but as per Railways Act as the claimed amount exceeds Rs.500=00, the declaration on behalf of the Complainant was mandatory, but without complying his duties, now the Complainant cannot be entertained to claim a hefty and arbitrary amount from the OPs. Where the Complainant had declared the value of the motorcycle, what prompted him not to declare the value of the articles, which has not been received as yet from the OPs. Moreover, though the Complainant is claiming that there were laptop, dresses, shoes, medical equipments in those bundles, but the booking receipt does not reveal the same and the due/short certificate issued by the OPs also not supports the claim of the Complainant. Next contention of the Complainant is that there were valuable medical books and journals in those bundles, but no corroborative evidence has been adduced by the Complainant in support of such contention. During hearing the Ld. Counsel for the OPs has submitted that the Complainant has lodged a claim before the Railway Claims Tribunal and the same is pending still now, but in this respect the Ld. Counsel for the Complainant has submitted that he has no knowledge as to whether there is any claim case initiated by him and the same is pending or not. Admittedly due to non-delivery of the three bundles of articles the Complainant made written correspondences with the Railway authority and as the Ops have admitted that those bundles have been misplace from their custody, the Ops have suo moto lodged a claim case before the said Tribunal and the same is pending. But whether the application made by the Complainant had been treated by the OPs as claim case or not, no further correspondences have been made by the OPs with the Complainant.
As the Complainant has miserably failed to disclose the value of the missing articles at the time of booking the same with the OPs, we are not in a position to pass an award towards the value of the said items as sought for. The Complainant has claimed Rs.1,20,000=00 towards the value of the missing items, but as has failed to prove the same by adducing cogent document, the prayer cannot be allowed. The Complainant has prayed for compensation to the tune of Rs.60,000=00 due to deficiency in service and unfair trade practice on behalf of the OPs. We have noticed that the OPs have admitted that three bundles of books have been misplaced from their custody and inspite of making written correspondences by the Complainant the Ops only lodged the claim case before the Railway Claims Tribunal by putting a number, but the same has not been intimated to the Complainant by making written correspondence. Moreover mere lodgment of claim case cannot redress the grievance of the Consumer/complainant. The OPs did not bother to take any positive action in respect of the said case with a view to redress his grievance. So the Complainant had to approach before this Ld. Forum by filing this complaint praying for compensation as his grievance has not been redressed by the Ops before coming to the Court of Law. Therefore in our considered view such inaction on the part of the Ops can easily be termed as deficiency in service, for which the Complainant is entitled to get compensation and admittedly due to the instant proceeding the Complainant has to incur some expenses, the complainant is also entitled to get litigation cost from the OPs.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed in part on contest with cost. The OPs are directed to make payment of Rs. 2,000=00 to the Complainant as compensation due to deficiency in service on their parts and mental agony, harassment of the Complainant within 45 days from the date of passing of this judgment, in default, the above-mentioned amount shall carry penal interest @9% p.a. for the default period. The OPs are further directed for making payment of Rs.1,000=00 to the complainant as litigation cost within 45 days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire order in execution as per provision of Law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
