State Consumer Disputes Redressal Commission
South Central Railway vs Junnedkhan S/O Rafiqullahkhan on 15 September, 2015
1 F.A..No.:97/2014
Date of filing :07.02.2014
Date of order :15.09.2015
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APEAL NO. :97 OF 2014
IN COMPLAINT CASE NO.: 62 OF 2012
DISTRICT CONSUMER FORUM : NANDED.
South Central Railway,
Senior Commercial Manager/Claims,
Secunderabad-500003. ...APPELLANT
VERSUS
1. Junnekhan Rafiqullahkhan,
R/o Gokunda, Tq.Kinwat,
Dist.Nanded 431 601.
2. The Manager,
Luggage Office, Central Railway,
C.S.T.Mumbai - 400001. ...RESPONDENTS.
CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Smt.Uma S.Bora, Hon`ble Member.
Present : Adv.Mr.S.R.Malani for appellant, Adv.Mr.Bhure for respondent No.1.
O R A L JUDGMENT (Delivered on 15th September 2015) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. This appeal is directed against the judgment and order dated 18.10.2013 passed by District Consumer Forum, Nanded partly allowing complainant's claim in C.C.No.62/2012 directing authorities of appellant South Central Railway jointly and severally pay to the complainant Rs.80,167/- with 9% interest towards the price of the luggage(cloths) and further compensation Rs.5000/- towards mental agony and Rs.1500/- towards cost of the proceeding.
2 F.A..No.:97/2014(For the sake of brevity appellant South Central Railway and respondent No.2 Manager, Luggage Office Central Railway are hereinafter referred as opponents and respondent No.1 Shri.Junned Khan as the complainant)
2. Brief facts giving rise to this appeal are that:-
On 3.11.2011 complainant Mr.Janned Khan purchased cloths worth Rs.80,167/- from Shivam Dresses, Ulhas Nagar and on the same day he handed over the goods to railway authority at CST, Mumbai for despatching the same to him by Nandigram Express by parcel for carrying it to Kinwat. He also paid requisite parcel charges. However, the goods are not delivered to him as assured by railway department. Non-delivery certificate was also issued by railway authority on 16.6.2012. Therefore alleging deficiency in service on the part of opponents, complainant has filed consumer complaint claiming amount of price of the goods, compensation Rs.80,000/- towards loss of income & mental agony and Rs.5000/- more towards cost of the proceedings.
3. Opponents by their written version resisted the complaint on the following among other grounds:-
They did not dispute that on 3.11.2011 complainant had handed over the luggage(goods) for being transportation to Kinwat from CST Mumbai by railway. They also did not dispute that consignment was not delivered to the complainant. Therefore non- delivery certificate was also issued. However, it is contended that complainant had not declared the value of the consignment and therefore complainant is not entitled for any compensation. It is further contended that consumer complaint is not maintainable as consumer Forum has no jurisdiction to try such complaint in view of provision of Section 3 of Railway Claim Tribunal Act 1987. It is 3 F.A..No.:97/2014 submitted that as per same provision of Railway Claim Tribunal Act, Railway Claim Tribunal only has exclusive jurisdiction to entertain such complaint. On all these grounds it is submitted to dismiss the complaint.
4. On hearing both side and considering evidence on record District Consumer Forum held that though the Railway Claim Tribunal is empowered to decide such claims, in view of provisions of Section 3 of Consumer Protection Act 1986 Forum has jurisdiction to entertain the complaint and therefore consumer complaint is maintainable. District Consumer Forum further held that opponents committed deficiency in service and due to their negligence consignment is lost. Therefore they are liable to pay amount towards price of the consignment and also compensation towards mental agony. In keeping with these findings Dist.Consumer Forum partly allowed the complainant's claim as noted above.
5. Feeling aggrieved by that judgment and order, opponent No.2 came to this Commission in appeal.
6. We heard learned counsel appearing for the appellant/opponent Railway Department and respondent No.1/complainant. We have also perused the copy of impugned judgment and order, copies of complaint , written version and other documents.
7. Almost all the facts except the contention of the appellant/opponent that Railway Claim Tribunal only has exclusive jurisdiction to entertain such complaint and therefore Consumer Fora has no jurisdiction to entertain it, are not disputed. Therefore the crux in this matter is as to whether consumer complaint is maintainable or not?
4 F.A..No.:97/20148. Mr.S.R.Malani learned counsel appearing for the opponent/appellant railway authority submitted that in view of the provisions of Section 13 & 15 of the Railway Claims Tribunal Act 1987, Railway Claim Tribunal only has exclusive jurisdiction to decide such claim. Moreover according to him Section 28 of said Act viz. Railway Claim Tribunal Act has over riding effect on other Acts and therefore consumer complaint is not maintainable. Morever, it is submitted that though provision of Section 3 of Consumer Protection Act 1986 are in addition to and not in derogation of the provision of any other law, the Railway Claim Tribunal Act 1987 is being enacted subsequent to the enactment of Consumer Protection Act 1986, it has over riding effect and therefore provisions of Section 3 of Consumer Protection Act cannot be invoked for entertaining such complaints against Railway Department. Pointing out provisions of Section 15 of the Railway Claim Tribunal Act 1987 he has submitted that since there is bar of jurisdiction, on or 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 Section 13 of the said Act. He has also supported his contention by relying on the decision dated 26.9.2001 of Hon'ble National Commission in case of Union of India -Vs- Sri Ramji Enterprises and another in which it is observed by Hon'ble National Commission that "provisions of Railway Claim Tribunal Act 1987 are being subsequent to Consumer Protection Act 1986 Section 28 of Railway Claim Tribunal Act has over riding effect".
9. Per contra Mr.Bhure learned counsel appearing for the complainant submitted that since provisions of Section 3 of Consumer Protection Act 1986 are being in addition to and not in derogation of provisions of any other law, consumer complaint is maintainable and therefore Section 28 of Railway Claim Tribunal Act 1987 has no over riding effect. He has also supported his contention by relying on the decision dated 22.7.2014 of Hon'ble National Commission in revision 5 F.A..No.:97/2014 petition No.104/2013 in case of Union of India & Anr. -Vs- Anjana Singh Chauhan, in which it is observed by Hon'ble National Commission that "existence of remedy provided by Section 13 and 15 of the Railway Claims Tribunal Act 1987 did not take away jurisdiction of the consumer courts to decide the question of deficiency in service". He has also supported his contention by relying on the decision of Hon'ble Apex court in case of Secretary, Thirumurugan Co-operative Agriculture Credit Society -Vs- Lalitha(Dead) through L.R.s and others reported in AIR 2004 Supreme Court 448 and also decision of Hon'ble Apex Court in case of Virender Jain -Vs- Alaknanda Co-operative Group Housing Society Ltd. and Others (2014)(1) Mh.L.J.548. So also decision dated 20.4.2012 of this Commission at Mumbai in case of Western Railway, Borivali -Vs- Meenu Chhazed & Anr. 2014(2) ALL MR(Journal) 33.
10. In case of Secretary, Thirumurugan Co-operative Agricultural Credit Society (Supra) Hon'ble Apex Court observed that "having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, better the provisions are to be interpreted broadly, positively and purposefully in the context of the present case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the Act in addition to other remedies provided under other Acts unless there is clean bar".
11. Whereas in case of Virendra Jain (Supra) Hon'ble Apex Court held that "availability of the alternate remedy is not bar to entertaining of complaint filed under Consumer Protection Act". Same view was also taken by this Commission in the case of Meenu Chhazed (Supra). Moreover learned counsel appearing for the complainant also relied on decision dated 1.8.2008 of Delhi State Commission, New Delhi in case of Symphony Marketing Pvt.Ltd. -Vs- Northern Railway, 2009(3) CPR 89 in which it is held that "consumer claims against railway 6 F.A..No.:97/2014 department for non-delivery of luggage booked with it for transportation is not barred by provisions of Section 13 of Railway Claims Tribunal Act".
12. In view of the undisputed facts of the present case and above authorities of Hon'ble Apex Court as well as Hon'ble National Commission and decision of this Commission we have no hesitation to accept the argument advanced by Shri.Bhure learned counsel appearing for the complainant/respondent and hold that consumer complaint is maintainable. Therefore argument advanced by Mr.Malani learned counsel for the appellant/opponent cannot be sustained.
13. Thus we have given our anxious thoughts to the facts of the case and also argument advanced by learned counsel for both side and we find that District Consumer Forum has rightly partly allowed complainant's claim. We find no infirmity or illegality in the impugned judgment and order. Hence no interference is warranted.
14. In the result, appeal is being devoid of any merit deserves to be dismissed. Hence the following order.
O R D E R 1. Appeal is dismissed. 2. No order as to cost.
3. Copies of the judgment be supplied to both the parties.
Sd/- Sd/- Uma S.Bora, S.M.Shembole, Member Presiding Judicial Member Mane