By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. Brief facts of the case:-<br /> Complainant booked his house hold articles in ten bundles from Unnao (Himachel Pradesh) to Kuttippuram, Malappuram District through railway. Out of the ten bundles only seven bundles were delivered to the complainant from Kuttippuram parcel office. Three bundles have not been delivered till date and that the seven bundles that were received were in damaged condition. Complainant alleges deficiency in service and prays for delivery of the three bundles or payment of Rs.20,000/- which is the value of articles inside the three bundles along with compensation and costs.<br /> <br /> 2. Both opposite parties filed joint version. It is contended that as per sec. 13 and 15 of Railway Claim Tribunal Act, 1987, this Forum has not jurisdiction to try this complaint. It is admitted that complainant booked ten bundles of household articles from Unnao to Kuttippuram on 10-3-2004. Out of these only seven bundles have been delivered. The total weight of the consignment booked by complainant is 246kg. Out of this 231kg has been delivered. The allegation that the bundles were in a damaged condition is specifically denied. It is submitted that if any consignment is found damaged; the consignor has a right to demand open/assessment delivery. The seven bundles delivered to complainant was received under clear signature and no dispute was raised. Further under the Railway Act, 1989, the liability is limited to Rs.50/- per kg. for loss, destruction, damage or deterioration in transit or non-delivery of consignment; unless the consignor declares the value of the consignment at the time of booking and pays extra charges. That complaint is only to be dismissed.<br /> <br /> 3. Evidence consists of affidavits filed by either sides. Ext.A1 and A2 marked on the side of complainant. Ext.B1 to B8 marked on behalf of opposite party.<br /> <br /> 4. Points that arise for consideration:- <br /> (i) Whether this Forum has jurisdiction? <br /> (ii) Whether opposite party is deficient in service? <br /> (iii) If so, reliefs and costs.<br /> <br /> 5. Point (i):-<br /> Counsel for opposite party argued that the jurisdiction of consumer Forum is specifically barred by the provisions laid in Sections 13 and 15 of the Railway Claims Tribunal Act, 1987. We are unable to accept this argument since the position is well settled by the dictum laid in 2007 CTJ 823 (NCDRC) General Manager, Railways Vs. Ms.Shalini Kapoor. It is held “In case of deficiency in service, the Consumer Protection Act comes into play irrespective of the legislation like the Railways Claims Tribunal Act.” Applying the principles of the above decision we hold that this Forum has jurisdiction to try this complaint. Point found in favour of complainant.<br /> <br /> 6. Point (ii):-<br /> According to complainant, 10 bundles of household articles were booked by him from Unnao to be carried to Kuttippuram. He is aggrieved that only seven bundles have been delivered to him and that too in a damaged condition. Opposite party admits the non-delivery of three bundles but denies the allegation that seven bundles were delivered in damaged condition. According to opposite party the bundles were delivered in tact and complainant has received them without making any protest or dispute. Counsel for complainant relied on Ext.A2 letters which are series of communications made by complainant to opposite parties regarding the non-delivery of three bundles. Ext.A2 letter is dated, 09-6-04 and addressed to Senior Divisional Manager, Southern Railway, Palghat. In all these letters complainant has stated that the seven bundles were received by him on different dates in badly torn condition. The evidence tendered on the side of complainant through affidavit which is supported by sufficient pleadings and Ext.A2 letters sufficiently proves that the bundles delivered to him was in damaged/torn condition. The delivery of seven bundles in damaged condition and non-delivery of three bundles proves failure on the part of opposite party to take due care of the consignment entrusted to them. We find opposite parties deficient in service.<br /> <br /> 7. Point (iii):-<br /> Complainant claims that the cost of articles inside the three non-delivered bundles in Rs.20,000/-. He claims reimbursement of this amount along with interest @ 12% and claims compensation of Rs.10,000/- along with costs of Rs.2,000/-. Opposite party resists this claim contending that the liability if any is limited as per sec.103 of Railway Act, 1989. Section 103(1) provides that the monetary liability of railway administration in respect of any consignment shall in no case exceed such sum calculated with reference to the weight of the consignment as may be prescribed. Sec.103(2) provides for liability in cases the consignor has declared the value of consignment and has paid extra percentage of charges. Admittedly complainant has neither declared the value or paid extra charges. The extent of monetary liability under sec.103 is prescribed in Railway (Extent of Monetary Liability and Prescription of Percentage of Charges) Rules, 1990. Rule 3 reads as under:-<br /> “Monetary liability of a Railway Administration (1) Where a Railway Administration is responsible for loss, damage, destruction, deterioration or non-delivery of any consignment, the amount of liability of such Railway Administration in respect of such loss, damage, destruction, deterioration or non-delivery, shall not, unless the consignor has declared its' value and paid percentage charge on excess value of such consignment, exceed,-- <br /> (i) in case of any consignment consisting of animals, the amount specified in Schedule I; or <br /> (ii) in case of any consignment consisting of baggage, an amount calculated at rupees one hundred per kilogramme; or<br /> (iii) in case of any consignment other than those referred to in clause (i) and (ii) above, an amount calculated at fifty rupees per kilogramme.<br /> Explanation—2: Where the loss, damage, destruction, deterioration or non-delivery is only with respect to part of a consignment, the weight to be taken into consideration for determining the amount of liability of a Railway Administration is the weight of goods lost, damaged, destroyed, deteriorated or non-delivered unless such loss, damage, destruction, deterioration or non-delivery effects the value of the entire consignment.<br /> <br /> Thus the liability is limited to the weight of consignment, non-delivered to the consignor if the weight of the goods lost, does not effect the value of the entire consignment. The Way Bill Weight as per Ext.A1 Partial Delivery Certificate is 246kg. Ext.B1 is the photo copy of the extract from delivery register. In Ext.B1 the seen bundles was delivered to complainant on different dates and the total weight delivered is 231kg. Thus the weight of the balance three bundles together is 15kg. Complainant is therefore entitled to receive Rs.1,500/- for the bundles not delivered to him. Complainant is aggrieved that the seven bundles received were in torn condition. But he does not have a specific case that any items in these bundles were lost or damaged. It is further submitted that complainant had to undergo undue hardships and mental agony due to the loss of articles. Ext.A2 are the series of letters sent by complainant to Railway authorities asking them to take necessary action and trace out his missing Consignment. Later his complaint to the Chief Claim Officer was denied as time barred. Ext.B4 is this letter issued to complainant stating that his claim was not filed within six months from the date of entrustment. It is interesting to note at this juncture, that the date of entrustment/booking is 10-3-04 and different dates on which the bundles were delivered are 16-5-04, 04-6-04 and 31-7-04. So the last bundle was delivered on 31-7-04 where after only complainant has come to know that three bundles are lost. The process of delivering the consignment took about four months. Only after this can the complainant make any claim and we consider the denial of the claim in Ext.B4 as time barred was not proper.<br /> <br /> 8. Complainant has to anxiously wait for the delivery of each bundle. It is evident that complainant was put to much hardships and had to undergo mental pain and strain due to deficient service of opposite parties. Complainant has to be definitely compensated for this and we are of the view, that an amount of Rs.6,000/- towards mental agony and hardships would serve justice to complainant.<br /> <br /> 9. In the result, we allow the complaint. Opposite parties are jointly and severally ordered to pay to complainant Rs.1,500/- (Rupees one thousand five hundred only) in lieu of monetary liability under Railway Act, 1989 and Rs.6,000/- (Rupees six thousand only) as compensation for mental agony and hardships together with costs of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of this order.<br /> <br /> Dated this 7th day of June, 2008.<br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 and A2<br /> Ext.A1 : Photostat copy of the Partial Delivery Certificate.<br /> Ext.A2(series) : Photostat copy of the letters (10 Nos.) sent by complainant to opposite parties. <br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B8<br /> Ext.B1 : Photostat copy of the Parcel Delivery Book with effect from 12-4-2004 (273045).<br /> Ext.B2 : Photostat copy of the Parcel Delivery Book with effect from 12-4-2004 (273046).<br /> Ext.B3 : Photostat copy of the Parcel Delivery Book with effect from 12-4-2004 (273048).<br /> Ext.B4 : Photostat copy of the Parcel Delivery Book with effect from 12-4-2004 (273050).<br /> Ext.B5 : Photostat copy of the Parcel Delivery Book with effect from 12-4-2004 (273052).<br /> Ext.B6 : Letter dated, 23-10-04 sent by Chief Claims Officer, Southern Railway to <br /> complainant. <br /> Ext.B7 : Photo copy of the Forwarding Note signed by complainant to opposite party.<br /> Ext.B8 : Copy of the Parcel Way Bill dated, 10-3-04 from UNA Railway Station<br /> to complainant.<br /> <br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br />