Date of Filing: 18.04.2013 Date of Final Order: 12-06-2014
The case of the Complainant in brief is that after purchasing 4 Pcs. of Embroidery Machines, from “Heritage” (a Government Recognized Export House) at Rs.28,000/- on 20-05-2012 booked through Railway Parcel, Old Delhi Railway Station, on 22-05-2012 for delivery at New Cooch Behar. The concerned Railway Authority late delivered 2 of the said 4 Embroidery Machines in spite of his showing his legal valid documents, at Cooch Behar/Alipurduar. Thereafter he went to the Railway Authority at New Cooch Behar Railway Station who advised him to contact Alipurduar Junction Parcel Office. He did it but to no good. He again went to New Cooch Behar Railway Authority who advised to contact Bangaigao Parcel Office but returned in empty hand. There after he went on many occasion to the railway authority at New Cooch Behar but then they misbehaved & mentally harassed him. He mentally got perturbed, being the only earning member of his family maintaining somehow his family by using those machines but for not getting those 2 machines he had to sell his property to save from poverty.
He prayed for compensation of Rs.14,000/- (cost of 2 Embroidery Machines), Rs.1,826/- (Railway Booking Charge), Rs.6,000/- (Conveyance expenses for persuasion) Rs.60,000/- (Due to Professional Loss), Rs.15,000/- (Mental Harassment) totaling Rs.96,826/- Only. He filed the petition of complaint on 18-04-2013 before this Forum, enclosed self signed Xerox copies of: Parcel Delivery Certificate No.T-62/372 dated 11-06-2012 (Exhibit-1), carbon copy of requisition by Commercial Clerk (Parcel), N.F. Railway, Cooch Behar (Serial-3) received short under above PW Bill (730664) dated 07-06-2012 (Exhibit-2), documents of his conveyance & Cash Memo No.13517 dated 20-05-2012 (Exhibit-3), Parcel Receipt No.A-1615613 dated 22-05-2012 (Exhibit-4), of purchase of Embroidery Machines, besides, I.P.O of Rs.100/- on affidavit. DF Case No.27/2013 was registered. On 22-04-2013 hearing the Ld Agent Mr. Rabindra Dey, on the point of admission & perusal of the material on record it was admitted fixing 16-05-2013 for S/R and appearance.
On 13-06-2013 the O.Ps No.1 & 2, represented by Mr. Alokananda Sarkar, Divisional Commercial Manager(IC), N.F. Railway, Alipurduar Junction, entered appearance through Mr. Dhiman Schanabis, Ld. Railway Advocate. On 22-07-2013 he filed his Written Statement (Written Version) for the O.P.No.1 & 2 through the Ld. Railway Advocate, on verification. On 27-08-2013 he filed his Affidavit (Evidence), (said to be “Affidavit”, identified by his Ld., so called Railway Advocate; but not on affidavit before any competent authority). On 05-05-2014 the complainant filed his Evidence on Affidavit through his Ld. Advocate, along with 4 0riginal/self signed documents. On 29-05-2014 the Ld. Railway Advocate filed his Written Argument, enclosing Xerox copy of Railway Claims Tribunal Act, 1987, (Section 13) and a Xerox copy of Haryana S.C.D.R.C I(2012) CPJ 299. However, it appears from record that on the dates the complainant appeared either in person/through his Ld. Advocate on the dates except on 22-07-13, 23-12-2013; but for the O.Ps adjournments/absent without step but absent on call on 21-06-13, 08-07-13, 06-08-13, 21-01-2014, 04-03-2014, 25-03-2014, 05-05-2014. The O.Ps 1 & 2 were show caused & replied but no cost was imposed. On 25-03-2014 the O.P.No.3 was declared Ex-Parte. On 29-05-2014 on hearing argument of both side Ld. Advocates this day (12-06-2014) has been fixed for passing Final Order in this Case.
The Written Statement i.e. Written Version for the O.P. Nos.1 & 2 speaks that the case is not maintainable, the Court has no jurisdiction to try this case after formation of Railway Tribunal, the petitioner does not come under the purview of the consumer, application is defective as Notice u/s 80 C.P.C and 78B has not been served, the statement that the petitioner sent 4 machines from Delhi is not correct, defective for non-joinder of parties, all Railway Division from Delhi to Cooch Behar upon which the train proceeded as necessary party, alleged booking was at Delhi, through the case should filed at Delhi etc. Further, it has been stated that there is no fault or negligence on the part of Railway and all formality were followed. The package which was booked were duly carried by Railway, that petitioner was harassed by Railway authority are not correct, so the question of mental agony does not arise. The petitioner for illegal gain filed this case. There is document about the 4 items in the said parcel. No Short certificate issued by the Railway, so the claim of the petitioner is not genuine. The O.P should have made N.E, E.R Railway to ascertain the case. The claim is illegal and excessive. It has been prayed that under the above circumstance the claim petition will be dismissed.
In the affidavit-in-chief the said D.C.M ©, N.F. Railway, Alipurduar Junction almost identical matters have been assailed in different version whereas in place of section 78 B, the section appears 28. In the written version of 78 B the 2 has been over written by pen and put 7. We may reasonably presumed that the evidence is nothing but stereo type copy of the written version/statement and in evidence the prayer part is off, whereas, below every para “This is true to my knowledge” has been inserted.
In the written argument the above matters has been stated besides, it has been stated that in Section 13 of the Railway Tribunal Act which is attached herewith which goes to show that this Court has no jurisdiction to decide the case and in support of this case. One Xerox copy of case law attached herewith, which relates to Section 13 of the Railway Tribunal Act, 1987 which reads as 13(1)(a)(i) : Jurisdiction, powers and authority of claims Tribunal; 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 Railways Act; compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway; (b) : in respect of the claims for refund of fares or part there of or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway. Vol.1 Narender Kumar –Vs- Station Superintendent, Rly. Station, Sonepat I(2012) CPJ 299, Haryana S.C.D.R.C, Panchkula, Railway Claims Tribunal Act, 1987, compensation can be filed before Railway Claims Tribunal and Consumer Fora have got no jurisdiction to entertain such complaint.
The evidence of the complainant is not only cryptic but also piecemeal of the complaint where from it can only be presumed that he has filed 4 documents (Exhibit marked 1 to 4) on 05-05-2008 substantive to the claim of the complainant that he had booked the aforesaid consignment at Delhi for delivery at New Cooch Behar on the dates noted herein before.
On perusal & scrutiny of the Complaint, Written Version and Evidence on record it appears that the Issue/Points for Consideration and Decision with Reason are:
ISSUES/POINTS FOR CONSIDERATION
- Whether the Complainant is a ‘Consumer’ of the O.Ps No.1 & 2 and/or 3 under the Consumer Protection Act, 1986?
- Whether this Forum has Territorial/Pecuniary Jurisdiction to entertain/try the case?
- Whether the complainant proved his case as to consumer dispute of non-delivery of the Two Embroidery Machines and that he suffered professional loss and or suffered mental pain, harassment for the acts/omissions etc thereby deficiency in service to the complainant by the O.Ps?
- Is he entitled to get any relief(s)? If so, from whom and to what extent he is entitled?
- Whether the Parties in litigation are liable for punitive costs for adjournments/ absence without step/non-filing of written argument etc u/s 13(3A) of the C.P. Act, 1986 read with Regulations 11 & 13 of The C.P. Regulations, 2005?
DECISSION WITH REASONS
From the discussion herein above we do find that the instant case should be decided based on the materials on record and evidence together with the written version and the petition of complaint. Documentary evidence will always gate preponderance over oral/written version.
Point No.1. Whether the Complainant is a ‘Consumer’ of the O.Ps No.1 & 2 and/or 3 under the Consumer Protection Act, 1986?
From the discussion herein above, the 4 Exhibits filed by the complainant transparently speaks that the 4 Embroidery machines were booked from New Delhi Exhibit-4. Two of four machines were delivered to the complainant on 11-06-2012 out of 4 booked vide Exhibit-1, the shortfall of two machines has been reflected in Exhibit-1. Further Exhibit-3 speaks that ‘received short’ *** ‘please arranged to send it by available ***’, Exhibit-1 speaks that Rasid Ali Mia purchased 4 Embroidery machines on 20-05-2012 from ‘Heritage’ at Delhi-110084 at Rs.28,000/-. He booked the consignment from New Delhi has not been denied. As he has paid the booking money Rs.1,826/- to the booking section vide Exhibit-4 for parceling to Cooch Behar we have no hesitation to decide that the complainant is a consumer. The O.Ps have not denied that it was not booked only what they have suggested that the petitioner is not a consumer wherein we do not find any substantive justifiable and cogent ground to rely on such contention. The cited decisions on behalf of the O.Ps have been scrutinized with due regards but we do not find any impediment from the interpretation of the Words and Phrases- Regulate and Regulation- Power to regulate does not necessarily include power to prohibit, and ordinarily word “regulate” is not synonymous with word “prohibit”- This is true in a general sense and in the sense that mere regulation is not the same as absolute prohibition- Power to regulate carries with it full power over the thing subject to regulation and in absence of restrictive words, power must be regarded as plenary over entire subject- Term ‘regulate’ is elastic enough to include power to issue directions or to make regulations.
Point No.2. Whether this Forum has Territorial/Pecuniary Jurisdiction to entertain/try the case?
From the discussion herein above in point No.1 as part of the cause of action arose within the district of Cooch Behar and also in part under the district of Jalpaiguri from the record we find that the value of the complaint is Rs.96,826/- at valorem and which is within Rs.20,00,000/- i.e. within the limitation of pecuniary jurisdiction and thus, this Forum has Territorial/Pecuniary Jurisdiction to entertain/try the case.
Point No.3. Whether the complainant proved his case as to consumer dispute of non-delivery of the Two Embroidery Machines and that he suffered professional loss and or suffered mental pain, harassment for the acts/omissions etc thereby deficiency in service to the complainant by the O.Ps?
From the discussion herein before and at point No.1 & 2 we are of the considered view that the complainant proved his case as to consumer dispute of non-delivery of the Two Embroidery Machines and that he suffered professional loss and or suffered mental pain, harassment for the acts/omissions etc thereby deficiency in service to the complainant by the O.Ps.
Point No.4. Is he entitled to get any relief(s)? If so, from whom and to what extent he is entitled?
In view of aforesaid discussion we find that the complainant is entitled to reasonable relief(s) and not the amount as claimed in his petition. The compensation is payable to the complainant by the O.P Nos.1 & 2 in contest and O.P. No.3 in Ex-parte jointly and/or severally for the acts/omissions and thereby causing deficiency in service to the reasonable extent towards purchase price of 2 machines plus 50% of booking charge actual reasonable conveyance charge and loss due to mental harassment and loss in profession for non-receipt of the 2 Embroidery machines.
Point No.5. Whether the Parties in litigation are liable for punitive costs for adjournments/absence without step/non-filing of written argument etc u/s 13(3A) of the C.P. Act, 1986 read with Regulations 11 & 13 of The C.P. Regulations, 2005?
It is transparent that both the parties have negligently/carelessly carried on the proceedings and non-compliance with the order of the Forum by taking so many adjournments and also not filing the written version by the concern respective parties. Therefore, the Parties in litigation are liable for reasonable punitive costs for adjournments/absence without step/non-filing of written argument etc u/s 13(3A) of the C.P. Act, 1986 read with Regulations 11 & 13 of The C.P. Regulations, 2005.
ORDER
Therefore, it is ordered that the case be and the same is maintainable and the same is allowed. The Complainant Shri Rasid Ali Mia do get an award of Rs.14,000/- together with booking charge Rs.913/-, conveyance allowance Rs.800/- and compensation Rs.15,000/- for loss in business and mental harassment. No litigation cost is allowed as not prayed for.
In whatsoever capacity he contested the case on behalf of O.P. No.1, 2 & 3 are directed to pay/cause the aforesaid awarded amount paid accordingly to the aforesaid Complainant within, 60 days from the date of this Final Order, failure of which the O.Ps shall pay @ Rs.100/- for each day’s delay on expiry of the aforesaid 60 days by depositing the accumulated amount, if any as such by depositing the same in the “State Consumer Welfare Fund, West Bengal’.
Besides, the complainant shall pay Rs.500/- and the O.Ps jointly or severally shall pay Rs.700/- to the State Consumer Welfare Fund, West Bengal within 60 days for the negligently/carelessly carrying on the proceedings and non-compliance with the order of the Forum by taking so many adjournments and also not filing the written version by the concern respective parties, u/s 13(3A) of the C.P. Act, 1986 read with Regulations 11 & 13 of The C.P. Regulations, 2005.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/ld. Advocate by hand/ be sent under Registered Post with A/D forthwith for information and necessary action, as per Rule.
