BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 92/2005 Filed on 15.03.2005

Dated : 28.02.2011

Complainant:

Stalin Herald, House No. 153, Pallithura P.O, St. Xavier's College (via), Thiruvananthapuram represented by his Power of Attorney K.P. Mathew, residing at House No. 79, Pallithura P.O., Thiruvananthapuram.

(By adv. Vazhuthacaud R. Narendran Nair)

Opposite parties :

1. The Chief Claims Officer, Southern Railways, Chennai- 600 003.

    

2. Southern Railways, represented by the Divisional Railway Manager, Thycaud, Thiruvananthapuram.

    

3. The Station Master, Surat Garh Railway Station, Surat Garh, Rajastan.

By adv. S. Renganathan)

This O.P having been heard on 31.12.2010, the Forum on 28.02.2011 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant is a defence personnel now working in Military Head Quarters, Delhi. Complainant was posted to the 16^th Light Cavalry, C/o 56 APO, Surat Garh, Rajasthan. In connection with shifting of place, complainant sent his household articles from Surat Garh to Trivandrum through Southern Railways, the 2^nd opposite party. Complainant sent 11 packages from Surat Garh Railway station to Trivandrum. The packages contained the complainant's brand new washing machine and other household articles. The packages were booked on 27.03.2004 vide Railway Receipt No. 266684 dated 27.03.2004. He entrusted the 2^nd opposite party for the proper transportation of his valuable household articles. The packages were to be delivered at Trivandrum. But to his utter dismay and disappointment of the complainant, he received only seven packages out of 11 packages. Complainant was informed by the officers of the 2^nd opposite party that they have received only 7 packages of the complainant. The complainant collected the 7 packages from Trivandrum Central Railway Station. In pursuance of the non-delivery of 4 packages complainant preferred a claim for compensation dated 04.05.2004 before the 2^nd opposite party. Thereafter the 2^nd opposite party traced out one of the lost packages and intimated the same to the complainant vide letter No. C 124/HVCM/47/TVC/00259/04-05 dated 02.06.2004 with a request to collect the same and to send a revised claim for the loss of remaining three. Complainant collected the above said package from Trivandrum Central Railway station. Complainant sent a revised claim as advised by the 2^nd opposite party dated 07.11.2004 for an estimated loss of Rs. 1,3,1,500/- which is in fact the value of one brand new washing machine and two big boxes containing valuable household articles. The three lost packages contained a brand new washing machine and other household articles (dinner set, crockery items etc.). But no action has been taken by the opposite parties either to effect delivery of goods or to settle the claim till date. The 2^nd opposite party is duty bound to take care of the goods and to take proper care of them till it is delivered to the consignor. Railways failed in the proper transportation and delivery of consignment. Because of the gross deficiency in service and negligence on the part of the 2^nd opposite party, complainant suffered great mental agony apart from huge financial loss specifically due to sheer negligence and deficiency in service on the part of both the opposite parties. Therefore opposite parties are legally liable to make good all losses suffered by the complainant. Complainant sent a notice dated 01.01.2005 through his advocate to both the opposite parties. That was received by the opposite parties. No reply has been received by the complainant till this day. The complainant has also not received the remaining 3 missing packages till date. Hence this complaint has been necessitated.

Opposite parties filed their version. In the version they submit that out of 11 packages booked under LT No. 266684 dated 27.03.2004 from Surat Garh to Trivandrum, 7 packages were delivered on 19.04.2004 and issued partial delivery certificate for balance of 4 packages. Complainant preferred claim of Rs. 1,50,000/- towards balance 4 packages vide his letter dated 04.05.2004 under Sec. 106 and 192 of Railway Act 1989. The opposite parties requested the complainant to furnish a copy of Beejuck vide letter dated 17.05.2005 to process the claim. In the meantime, the opposite party asked the complainant to collect one package submitting the original partial delivery certificate and obtain a fresh PDC and submit revised claim vide letter dated 03.06.2004. The opposite parties further submit that complainant did not produce the original PDC and Beejuck hence they could not process the claim. The complainant in this case has neither declared the value of the consignment nor paid percentage charges. Hence the claim amount on different claims are denied. Therefore the opposite parties have only the liability to pay Rs. 100/- per kg for non-delivery of goods. The opposite parties further stated that this Forum has no jurisdiction to entertain this claim, the jurisdiction is vested in Railway Claims Tribunal established under Railway Claims Tribunal Act, 1989.

Complainant and opposite parties filed proof affidavits and 8 documents were marked from the side of the complainant as Exts. P1 to P8.

Points to be ascertained:

1. Whether there is deficiency in service from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

3. Whether the complaint is maintainable or not?

Points (i) to (iii):- Complainant in this case is a defence personnel. While he was working in Surat Garh in connection with shifting of place, he had sent his household articles and valuables from Surat Garh to Trivandrum through the 2^nd opposite party. He had sent 11 packages containing his brand new washing machine, computer, scanner, UPS, Printer and other household articles. But the complainant received only 7 packages out of the 11 packages he had sent. Pursuant to the non-delivery of 4 packages he preferred a claim before the 2^nd opposite party. Copy of that letter is marked as Ext. P2. Thereafter 2^nd opposite party traced out one package and intimated the same to the complainant with a request to collect the package and sent a revised claim for the loss of remaining 3 packages. That letter is marked as Ext. P3. The complainant surrendered the partial delivery certificate and collected the said one package from the opposite party. The copy of partial delivery certificate is marked as Ext. P1. Complainant sent a revised claim as advised by the 2^nd opposite party for an estimated loss of Rs. 1,31,500/-. copy of that claim is marked as Ext. P4. But no action has been taken by the opposite parties either to effect delivery of goods or to settle the claim till date. Therefore the complainant sent a lawyer's notice dated 11.01.2005 to the opposite parties. The copy of lawyer's notice and acknowledgement card are marked as Exts. P5 & P6. The main objection raised by the opposite parties is that the complainant has not produced the PDC and Beejuck to process the claim. But at the time of receiving the package subsequently traced out, the complainant had submitted the original PDC to the opposite parties. At the time of cross examination DW1 admitted that “7 parcels കൊടുക്കുന്ന സമയം partial delivery certificate കൊടുത്തിരുന്നു. ടി certificate കൊണ്ടുവന്നപ്പോഴാണ് രണ്ടാമത് ഒരെണ്ണം കൂടി കൊടുത്തത്”. Hence we find that there is no need to produce the partial delivery certificate thereafter. The opposite parties have admitted the fact that remaining 3 packages have to be delivered to the complainant. The other contention raised by the opposite parties is that the complainant has neither declared the value of the consignment nor paid the percentage charges on it as per Sec. 103 of the Railway Act. The complainant stated that the opposite parties had not intimated such requirement either at the time of booking or any time thereafter. At the time of cross examination complainant deposed that “Railway എന്നോട് list-ഉം വിലയും ആവശ്യപ്പെട്ടിട്ടില്ല ”. It is the duty of the railway authorities to collect the details of parcel and its value and accordingly collect the parcel charges from customers. The opposite parties admitted the non-delivery of 3 packages sent by the complainant and based on their advice the complainant sent revised claim. Hence the opposite parties cannot evade from their liabilities, with lame excuses. Another contention raised by the opposite parties is that this Forum has no jurisdiction to entertain this complaint which is within the exclusive jurisdiction of Railway Claims Tribunal under Sec. 13 of the Railway Claims Tribunal Act 1989. As per Sec. 3 of the Consumer Protection Act, the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The provisions of this Act gives the consumer an additional remedy which may be available under other existing laws. As per Ext. P1 document it is clearly mentioned that one package contained a washing machine. The complainant states that other two boxes contain house hold articles including scanner, printer, dinner set, crockery items etc. But the complainant has not produced any evidence to show that what are the items in the packages or its price except the affidavit. As per affidavit the complainant claims Rs. 1,31,500/- for the loss of his parcel. Since the articles are used ones and in the absence of any document to prove the price of the articles, we fix the price as Rs. 25,000/- for the washing machine and a total amount of Rs. 25,000/- towards price of the other articles lost. Hence we find that the total loss of articles contained in the package comes to Rs. 50,000/-. The opposite parties are also liable to pay compensation to the complainant for his mental agony and other hardship due to the loss of the parcel. Hence the complaint is allowed.

In the result, the opposite parties are directed to pay Rs. 50,000/- as the price of lost articles and Rs. 5,000/- as costs to the complainant. Time for compliance one month from the date of receipt of the order failing which the said amounts shall carry 12% annual interest from the date of order.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 28^th day of February 2011.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 92/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Stalin Herald

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of partial delivery certificate.

P2 - Copy of letter dated 04.05.2004 issued by the complainant.

P3 - Copy of letter dated 02.06.2004 addressed to complainant.

P4 - Copy of the claim dated 07.11.2004.

P5 - Copy of advocate notice dated 01.01.2005

P6 - Acknowledgement cards.

P7 - Copy of letter dated 18.07.2004.

P8 - Power of Attorney.

III OPPOSITE PARTY'S WITNESS :

DW1 - Prasannakumar. B

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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