HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.423 of 2005 Date: 19-8-2011 Between The Station Manager, South Central Railway, Solapur Railway Station, Solapur and 2 others … Petitioners/Respondents and The District Forum (constituted under the Consumer Protection Act, 1986), Cuddapah, Rep. by its Registrar … Respondent No.1 Durzi Sujjai Ali Khan … Respondent No.2/Complainant HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.423 of 2005 Order: The present civil revision petition is filed against the order dated 29-11-2004 in C.D.No.155 of 2003 on the file of the District Forum, Cuddapah. 2. The revision petitioners herein are the respondents-South Central Railway in C.D.No.155 of 2003. The complainant- 2nd respondent herein filed C.D.No.155 of 2003 claiming damages against the revision petitioners herein. 3. For convenience, the parties are referred to as arrayed in the District Forum. 4. As seen from the impugned order, the complainant-2nd respondent filed a complaint under Section 12 of the Consumer Protection Act, 1986 seeking a direction to the opposite parties to pay costs, freight charges, travelling expenses, loss of profit and special damages towards mental agony. It is the case of the complainant that he is a mundy merchant doing business in fruits and he used to send his staff to various places for purchasing fruits. Accordingly, one of his staff, namely, S.Lateef, purchased Anar fruits at Sholapur on 18-7- 2003 worth about Rs.15,020/- in 53 big boxes and after purchase, the said fruits were divided and packed in 82 small cartons for convenience of transport and a consignment was booked with the 1st respondent at Sholapur on 18-7-2003. On 19-7-2003 when the complainant approached the 2nd respondent at Kadapa for taking delivery of the consignment, he was informed that the consignment was not reached and again on 25-7-2003 when he met the 2nd respondent, he was informed that 61 cartons were reached Kadapa and the remaining 21 cartons were still awaited and on verification of 61 cartons, the complainant found that water was oozing out and emitting bad smell, thereby he claimed the damages. 5. The 3rd respondent filed a counter through his advocate stating that the complaint is not tenable under Section 79 of CPC as Union of India was not impleaded as a party to the proceedings and that the Forum has no jurisdiction to entertain the complaint. It is further stated that the complainant had not served a claim notice under Section 106 of the Railway Claims Tribunal Act, 1987, which is mandatory, and therefore, the complaint is not maintainable. 6. During the course of trial, on behalf of the complainant, none were examined, however Exs.A-1 to A-3 were got marked. On behalf of the respondents, no oral or documentary evidence was adduced. 7. The following points were arose for consideration before the forum: (i) Whether the complaint is maintainable ? (ii) Whether there is deficiency of service on the part of the respondents ? (iii) To what relief ? 8. The forum, while answering the points, held that there is no bar to entertain the present complaint by it, and the complainant is entitled for recovery of the loss sustained by him and also for refund of the freight charges paid by him along with costs of the complaint and accordingly, awarded damages. Aggrieved thereby, the present civil revision petition is filed by the respondents. 9. The learned counsel appearing for the revision petitioners contends that the forum ought to have seen that it has no jurisdiction to proceed with the matters arising out of the commercial transaction between the consignor and the Indian Railways and the proper forum to adjudicate the claim is the Railway Claims Tribunal. 10. The learned counsel draws the attention of the Court to Sections 13, 15 and 28 of the Railway Claims Tribunal Act, 1987 and placed reliance on the order of the National Consumer Disputes Redressal Commission, New Delhi, in Union of India vs. M.Adaikalam[1] and the order of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur, in BHANWARLAL & ORS. v. STATION SUPERINTENDENT, RAHURI & ORS[2]. 11. Now, the point for consideration is: Whether the order of the forum is sustainable ? 12. Point:- I n M.Adaikalam’s case (1 supra), the National Consumer Disputes Redressal Commission, New Delhi, held as under: “The Consumer Forums 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 Claims Tribunal established under the Railway Claims Tribunal Act, 1987. In addition, the Railways have no liability for delay in delivery in terms of the Coaching Tariff. In view of the above, there has been an error in exercise of jurisdiction by the State Commission.” 13. Placing reliance on the aforesaid dicta, the learned counsel for the petitioners urged that the forum ought to have seen that Railways Act, 1989 is a special law dealing with the transport of passengers and consignments entrusted to it. It is the settled principle that the special law would prevail over general law. There being a special law under the Railways Act, 1989 and a special mechanism under Railway Claims Tribunal Act, 1987; that law would prevail over the relevant general law such as “The Consumer Protection Act, 1986” and adjudicating mechanism instituted thereunder i.e. Chairman TTC vs. Consumer Protection Council (AIR 1995 SC 1384) held that special law would prevail over the general law such as the Consumer Protection Act. 14. As seen from the pleadings, the 3rd respondent clearly mentioned in the counter that the forum has no jurisdiction to entertain the complaint. However, the forum has negatived the contention of the respondents. In view of the above settled law, the finding of the forum that it has jurisdiction to entertain the complaint is not sustainable, and thereby the impugned order is liable to be set aside. 15. Accordingly, the civil revision petition is allowed and the impugned order dated 29-11-2004 is set aside. However, it is open for the complainant-2nd respondent herein to take appropriate steps for redressal as per law. No costs. ___________________ K.S.APPA RAO, J. 19th August, 2011. Ak HON’BLE SRI JUSTICE K.S.APPA RAO Civil Revision Petition No.423 of 2005 19th August, 2011. (Ak) [1] II (1993) CP 145 NC [2] II (1991) CPJ 248