PER SMT JYOTI IYER - HON’BLE MEMBER :
1) This complaint has been filed by the Complainant against the Opposite Party alleging them of deficiency in service for non delivery of the two parcels/consignments containing textiles booked with the Opposite Party – Railway from Bombay Central Station to be delivered to the Complainant’s clients M/s.Krishna Embfasteners Pvt.Ltd. at New Delhi. And further for directions to the Opposite Party to pay to the Complainant Rs.75,000/- towards loss of the 2 parcels, mental agony and litigation.
2) The brief facts of the case in a nutshell are as follows -
It is the case of M/s.Ahuja Silk Mills Pvt.Ltd. i.e. (the Complainant) that they had booked 2 consignment containing cotton cloth with Western Railway at Bombay Central Station, vide Receipts Nos.U-590156 dated 29/08/2002 (one packet) and U-861806 dated 10/10/2002 (three packets) addressed to M/s.Krishna Embfasteners Pvt.Ltd. to be delivered at New Delhi. (hereinafter for the sake of brevity and convenience referred to as Complainant). It is further the contention of the Complainant that till today the Opposite Party has failed to deliver the said 2 consignment to his client M/s.Krishna Embfasteners Pvt.Ltd. at New Delhi, despite lodging complaints before various Railway Authorities at Churchgate and New Delhi for damages, compensation etc. however, in vain therefore, the present complaint came to be lodged for the reliefs as aforementioned.
3) Pursuant to the issuance of notice Opposite Party appeared and filed its written statement denying all the allegations made against them in the complaint. It is contention of Opposite Party that this Hon’ble Forum does not have the jurisdiction to entertain and hear the present complaint filed by the Complainant as per section, 13, 15 & 28 of the Railway Claims Tribunal Act, 1987 and the Railway Claim Tribunal has exclusive jurisdiction to entertain, try and hear matters in respect of claims for compensation arising out of non-delivery of goods entrusted to a Railway Administration. The Opposite Party further avers that the aforementioned 2 consignments booked under receipts numbers referred above indicate that it is at owners risk and not at Railway risk and that no contents and value of the said consignments was declared, etc. therefore, claim of the Complainant was not maintainable hence, the Opposite Party prayed that the complaint against them be dismissed with compensatory cost.
4) We have perused the record, heard the Ld.Advocates of both the respective parties at length, so also, considered all the rival contentions raised by both the parties Advocates. The issue which arises for our consideration is as follows –
1. The first and foremost question which needs our consideration is whether the Consumer Forum have the jurisdiction to entertain, hear and try complaints on account of deficiency in service arising from loss, destruction, damage, deterioration or non-delivery of the goods etc. entrusted to the Railway Administration for carriage ?
The Opposite Party in their written statement has contended that under the provisions of Section 13, 15 & 28 of the Railway Claims Tribunal Act, 1987 this Hon’ble Forum does not have jurisdiction to entertain and hear complaints arising out loss, destruction etc. the Opposite Party in support of their said contention have produced on record the extracts of the section 13, 15 & 28 of the Railway Claims Tribunal Act, 1987.
Sec.13 reads as follows –
Jurisdiction, powers and authority of Claim Tribunal – (1) 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, -
(a) relating to the responsibility of the railway administration as carriers under Chapter VII of the Railways Act, in respect of claims for -
(i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods, entrusted to a railway administration for carriage by railway;
(ii) compensation payable under Section 82-A of the Railways Act or the rules made thereunder; and
(b) in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.
[(1-A)] The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Section 124-A of the Railways Act, 1989 all such jurisdiction powers and authority as were exercisable immediately before that date by any civil court in respect of claims for compensation now payable by the railway administration under Section 124-A of the said Act or the rules made thereunder.]
The provisions of [Railways Act, 1989] and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act.
Sec.15 reads as follows –
Bar of jurisdiction – On and from the appointed day, no court or other authority shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-section (l) of Section 13.
Sec. 28 reads as follows –
Act to have overriding effect – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
In the present case in hand the claim falls u/s.13(1) for refund and compensation etc. for non delivery of the said 2 consignments booked with the Administration of Western Railways for carriage to the destination at New Delhi. Since, the said 2 consignment entrusted to the Opposite Party i.e. Railway Administration for carriage were not delivered to the Complainants clients at New Delhi it could be said that the goods were lost. On perusal of the said sections mentioned above it is clear that the complaint falls u/s.13(1) arising out of the aforementioned causes which are exclusively triable by the Railway Claim Tribunal and that there is a bar u/s.15 of the said Act, and further that Section 28 of the said Act, has an overriding effect. The Opposite Party has in support of its said contention produced and relied upon the following ruling which is as follows :
1) (1993) CPJ 145 (NC)
It was held in the said judgement the same is reproduced hereunder -
The Consumer Forum have no jurisdiction to entertain complaints on account of deficiency in service arising from loss, destruction, damage, deterioration or non-delivery of the goods, etc. entrusted to the Railway Administration for carriage. This jurisdiction is now exclusively vested in Railway Claim Tribunal established under the Railway Claim Tribunal Act, 1987. In addition, the Railways have no liability for delay in delivery in terms of the Coaching Tariff.
The Opposite Party has also produced and relied upon the ruling of the Hon’ble Apex Court in Chairman T.T. Corpn. v/s Consumer Protection Council AIR 1995 S.C. 1384 wherein the ratio laid down by the Hon’ble Apex Court is that Provisions of a Special law would prevails over the Consumer Protection Act. Since the Railway Claims Tribunal Act, 1987 is a special Act it would prevail over the Consumer Protection Act, 1986. Both these rulings in our view are squarely applicable to the present facts and circumstances of this case in hand.
5) In view of the above discussion we therefore find substantial force and truth in the contention raised by the Opposite Party and therefore, we are of the well considered view that the present complaint for deficiency of service u/s.13(1) of the Railway Claim Tribunal Act, 1987 on account of loss etc. as above reproduced for refund of freight, compensation etc is not maintainable before us. Hence, we have no hesitation to conclude that the Consumer Forum have no jurisdiction to entertain the present complaint as it pertains to non delivery / loss of goods entrusted to the administration of Railways for carriage. Hence, the present complaint is not maintainable before us. We therefore do not find it necessary to look into the other contentions raised by the Complainant as we have no jurisdiction to entertain complaint of such nature. However, the present Complainant is at liberty to file his claim/complaint before the appropriate Forum for Redressal of his grievances. We make it clear that the time spent by the Complainant prosecuting the present complaint before this Forum shall be excluded for the purpose of limitation if any. Hence, the following order -
-: O R D E R :-
1. Complaint No.209/2004 is dismissed with no order as to cost.
2. Certified copy of the order be sent to both the parties.
