Sri Basudeb Das,

son of Sombhunath  Das,

residing at Village & P.O. Singti, P.S. Udaynarayanpur,

District – Howrah.-------------------------------------------------------------- COMPLAINANT.

-          Versus   -

1.      The S.M.,

P.R.R. Section, South Eastern Railway,

Howrah Junction,

Howrah – 711101.

2.      The Chief Claims Manager,

Southern Railway, M.M.C. Complex, Park Town,

Chennai – 600003. ------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  The instant case filed by the complainant, Basudeb Das  U/S 12 of the C.P.

Act, 1986 as amended upto date against the O.Ps. alleging deficiency in service U/S 2(1)(g) of the C.P. Act, 1986 prayed for direction upon the O.Ps. to deliver the saloon chair / pay the cost of the chair together with compensation and litigation costs as the O.Ps. in spite of repeated requests made by the complainant for non delivery of the schedule goods being parcel vide no. 4720815300 dated 02-08-2012 to his destination . i.e., Katipodi Junction vide train no. 12863.

2.                  Facts reveals that Basudeb Das a barber purchased a new saloon chair on 02-

08-2012 from Mondal  Furniture of Kolkata – 700001, and sent the same through parcel from Howrah Junction to Katipode Junction under parcel no. ;4720815300 dated 02-08-2012 vide train no. 12863 wherein the complainant also travelled in the same date and the schedule train.  The complainant as it stated has paid a sum of Rs. 3,76/- only being the parcel charge vide luggage ticket no. A 2796013. The complainant made contact with the parcel section at Katipodi Junction to deliver the saloon chair but the O.P. did not deliver

the  same. Moreover cause of non delivery has not been informed specifically. The complainant in spite of several requests verbally including a letter to the O.P. no. 2 through registered with A/D on 20-09-2012 followed by a notice through ld. Advocate on the dated 19-11-2012 for delivery the same, but the all the attempts in vain and finally finding no other alternative, the petitioner filed the instant case as he suffered harassment, mental agony and loss in his business activities which is meant for his livelihood prayed relief and compensation from the Forum in connection with the complaint petition.

3.                   To counteract the complainant’s case and alleged story of O.P. no. 2 by filing

a written version asserted that the complainant has no legal right to sue this complaint to the Forum whereby such an application is not maintainable tp be tried at any court including District  Forum under  C.P. Act, 1986 as mentioned. The complainant ought to have preferred his claim if at all before the Railway Claims Tribunal either at Kolkata or  Chennai having original jurisdiction created by an act of Parliament called the Railway Claims Tribunal, 1987 and the question of deficiency in service or negligence on the p[art of the O.P. does not arise. In such circumstances, it prayed for dismissal of the complaint accordingly.

4.                  Notice was served upon the O.P. no. 1 which was returned back by the postal

authority to this end with remarks ‘not known’ and the same is considered to be a good service as per Apex  Court Order which ex parte hearing was declared against O.P. no. 1.

5.                  Upon pleadings of both parties two  points arose for determination :  

ii)                  Whether there is  deficiency in service on the part of the O.Ps.   ? 

iii)                Whether the complainant is entitled to get relief and compensation as prayed for ?

DECISION  WITH   REASONS      :

6.                  Both the points are taken together for consideration. On proper scanning of the

argument as advanced by the agent of both parties and also reviewing the material documents as filed by the parties we have searched out some of the discrepancies as per complaint which are to be decided in this case to arrive at just conclusion. The O.P.  have pleaded the followed points :

i)                    The instant petition is not maintainable at any court made as per the provision laid down under  C.P. Act, 1986.

ii)                  The said complaint petition has been decided U/S 13 of the Railway Claim Tribunals where the dispute shall be determined by the Railway Administration for carriage by railway. 

7.                  We have heard the ld. Counsel and O.P. and thereby the concerned case

record submitted by the parties.

8.                  The ld. Counsel of the O.P. no. 2 argued that in view of Section 30 of the

Railway Claims Tribunal Act, 1987 the jurisdiction of the Forum has been barred. Moreover, U/S 13(A)(1) of the said Act compensation for loss, destruction, damage, deterioration or non delivery of animals or goods entrusted to the Railway Administration.

9.                   It is admitted fact that the complainant sent a saloon chair through parcel no.

4720815300 dated 02-08-2012 with consideration money of Rs. 376/- as a parcel charge against luggage ticket no. 2796013, in order to receive the said goods from his destination i.e., Katpadi Junction. Had it been so it is the obligatory part of the railway administration to take due care for handed over the parcel goods in time to the complainant. But in this case the O.P. failed to do in spite of repeated requests made by the complainant for delivery the same. There can be no dispute that any service in connection with the transport which is made available to potential user for a consideration comes within the purview of ‘service’ under the C.P. Act, 1986 and facilities of transportation by railway provided by railway administration was a service rendered for consideration and as defined under  C.P. Act, 1986. 

10.              In the totality of the facts and circumstances, we n0ot only find that the O.Ps.

have been grossly deficient in rendering services but have resorted totally false and untenable ground to escape the liability. In our view they deserve to be sternly dealt with.

11.              Coming to the question of harassment and mental agony we have already

stated that there has been a delay of more than six months for non delivery of the good and the complainant has been deprived of utilizing the same equipment for his livelihood purpose. It is admitted fact that the O.P. is yet to take any positive action for delivery of the said goods since it was handed over to the railway authority on 02-08-2012 in order to delivery the same to the complainant.

12.                    Moreover, it is to be pointed out  that the O.P. only pleaded on his behalf

that the complaint against that authority is not maintainable and nothing else has been explained. So when such type of statutory authority fails to act, the poor consumer is left with no alternative than to involve the jurisdiction of the Consumer  Forum established for the purpose of protection  of the consumer rights. 

            Accordingly we arrive at the irresistible conclusion that it is a fit case where the prayers of the complainant shall be allowed.

           Both the points are accordingly disposed of.

In the result, the complaint succeeds.

      Hence,

O     R     D      E      R      E        D

      That the C. C. Case No. 27  of 2013 ( HDF 27 of 2013 )  be  allowed on contest against O.P. no. 1  with a litigation costs of Rs. 3,000/- and ex parte without cost against O.P. no. 2.

      The O.P.  no. 1  is hereby directed to refund Rs. 8,000/- as cost  of  saloon chair and parcel charge of Rs. 376/-  with an interest at the rate of  @ 10% p.a. on and from 03-08-2012  within 30 days from the date of this order.

      The O.P. no. 1  is also directed to pay sum of Rs. 50,000/- as compensation against prolonged harassment and mental agony of the complainant.

      The entire amount of Rs. 61,376/- ( Rs. 8,000+ 376 + 3,000 + 50,000  ) should be payable within 30 days from the date of this order  i.d. a penal interest of 12% per annum shall be levied on the unpaid amount till realization.

      The complainant is  at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.