THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
I.A. 84/2017 IN C.C.129/2016
Dated this the 11th day of October, 2017
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt. Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Rose Jose, President:
This petition is filed under Section 12of consumer Protection Act, 1986, for getting an order directing the opposite party to pay her Rs.1,38,467/-, the purchase price of the cloth items along with interest from 19/04/2014 onwards and a total of Rs.55,000/- as compensation for the expenses incurred and difficulties suffered in this regard and also cost of the proceedings.
The case of the petitioner is that, she is running a textile shop for earning her livelihood as a means of self employment. The cloth materials are usually purchased from Surat. On 07/03/2014and 15/03/2014, she had purchased cloth items from different shops at Surat for Rs.1,38,467/-. But when she received the items from there it is found that the items delivered were not the same actually selected by her and when contacted the parties, they informed to return the items immediately for changing the same. As such she packed the items and sent the same in the address of her relative at Surat through the opposite party on 19/04/2014. The next day itself she along with her sister went to Surat to receive the parcel. But the booked items were not reached at Surat Railway Station and after a long lapse of two weeks she got information from the opposite party that the items were reached at Bikaner Railway Station. As such she went there but the parcel was not reached there also, as informed by the opposite party. It is stated by the petitioner that, she had waited there at Surat for about 1 month for receiving the parcel but no use. Though she had approached the office of the opposite parties many times for the parcel she was not received the same till date. The opposite party told that they have no liability regarding any parcel once it was sent. The opposite party had charged Rs.600/- for sending the parcel and hence they are having a responsibility to deliver the booked items at the destination safely. Due to the irresponsibility and negligent attitude of the opposite party she had lost her valuable cloths costing Rs.1,38,467/-. This is deficiency in service on the part of the opposite party and thus caused much mental pain, heavy financial loss and such other difficulties to her. So the opposite party is liable to compensate her for the loss and other difficulties suffered. Hence this petition.
The opposite party filed version contending that this petition is not maintainable before this Forum as the Fora has no jurisdiction to decide this matter on merit because the subject matter is under the exclusive jurisdiction of Railway Claims Tribunal as per Act 1987. It is admitted that the petitioner had booked 2 bundles of cloth weighing 90 kg.s to Surat from Kozhikode vide Parcel Way Bill No.978796 dated 19/04/2014 on payment of Rs.600/-. But it is submitted that, at the time of booking the parcel the petitioner has not declared the actual value of the consignment and paid the percentage charge on value to cover the said full value of the items, if any loss is happened to claim compensation. As per the Forwarding Note signed and submitted by the petitioner at the parcel office Kozhikode ‘Unless the consigner declares the value of any consignment and pays percentage of value as per Railways Extent of Monetary Liability and Prescription of Percentage Charges Rules 1990 the maximum amount of monetary liability of Railway Administration for loss, destruction, damage, deterioration and non-delivery of the consignment shall not exceed Rs.50/- per kg. in case of parcels, Rs.100/- per kg. in case of personal baggage.’ But these conditions were not accepted or followed by the petitioner while booking the parcels. So they are liable only for the said amount even if any deficiency is found against them.
After filing version by the opposite party, the case was posted for the affidavit of the petitioner and at this stage the opposite party filed I.A.84/2017 challenging maintainability of this petition before this Forum and prayed to decide this aspect as a preliminary issue before going to the merits of this petition. So we decided to hear and decide this matter as a preliminary issue before going to the merits of this petition. The petitioner has not filed any counter to this I.A.
Heard.
The learned counsel for the opposite party argued that the claims of this nature is exclusively triable by the Hon’ble Railway Claim Tribunal in terms of Section 13r/w Section 15 of the Railway Claim Tribunal Act 1987and hence no claims shall be entertained or adjudicated in any such manner which falls within the exclusive jurisdiction of the RCT after the enforcement of the Act 1987. So the Forum has no jurisdiction to entertain or decide this matter on merits. He produced the judgements of the Hon’ble National Commission in Union of India and Ans. Vs. M. Adaikalam II (1993) CPJ145(NC)and in General Manger, Southern Railway Vs. K.M. Chakko 2010 Revision PetitionNo,2387 of 2010 in support of his arguments.
In Union of India and Ans. Vs. M.Adaikalam, the Hon’ble National Commission held that, ‘the Consumer Forum has no jurisdiction to entertain complaints of deficiency in service arising from loss, destruction, damage, deterioration or non-delivery of goods etc. entrusted to the Railway Administration for carriage. This jurisdiction is now exclusively vested in Railway Claim Tribunal established under the Railway Claims Tribunal Act, 1987. In addition, the Railway have no liability for delay in delivery in terms of the coaching tariff.’
In General Manager, Southern Railway Vs. K.M. Chakko, it is held that’ in view of the provisions of the Railway Claims Tribunal Act, 1987 and its interpretation by the National Commission, we are of the view that the complaint of the respondent was not maintainable before the learned Fora below because of jurisdictional limitations as explained above and hence set-aside the orders of the District Forum and State Commission.’
In the instant case, the petitioner is alleging deficiency in service on the part of the opposite party and claiming compensation for the ‘non-delivery of cloths’ booked through them. Hence the above cited decisions of the Hon’ble National Commission is found applicable in this case also. So based on the said decisions cited supra, it is found that this Fora has no jurisdiction to entertain or decide this petition on merit and hence it is not maintainable before this Forum. Fora is bound by the decisions of the Hon’ble National Commission and it cannot go beyond that also. So we are not going to the merits of this petition.
In the result, the I.A.84/2017 is allowed and the original petition is dismissed as not maintainable before this Forum. Parties will bear their costs.
Dated this the 11th day of October, 2017
Date of filing: 11/03/2016
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
(Forwarded/By Order)
SENIOR SUPERINTENDENT
