BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR

C.C NO-79/2017

Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).

Ankita Agrawal,aged about 35 years,

W/O-Vineet Kumar Agrawal,

Occupation-Housewife,

R/O- Balaji Mid Town,Flat No-4A,

Dehuropali,P.O-Budharaja,

P.S-ainthapali,Dist-Sambalpur(Odisha).                                                      …..Complainant

Vrs.

1.  The Chief Commercial Manager,

East Central Railway,

Hajipur,Dist-Vaisali,Pin- Code-844101,

2. General Manager,

East Central Railway ,

Hajipur,Dist-Vaisali,Pin- Code-844101.

3. Divisional Railway Manager,

Mugal Sarai Division,

Dist-Chadauli(U.P),Pin -232101.

4. Divisional Railway Manager,Sambalpur,
5.  
6.  

Counsels:-

1. For the Complainant:-    Sri R.L.Sharma, Advocate & Associates.
2. For the O.P-1       :-          None.
3. For the O.P-2       :-          None.
4. For the O.P-3       :-          Sri A.K.Senapati,Advocate & Associates.
5. For the O.P-4       :-          Sri A.K.Senapati,Advocate & Associates.

DATE OF HEARING : 10.03.2021, DATE OF ORDER : 12.04.2021

SRI DIPAK KUMAR MAHAPATRA,PRESIDENT:-Brief facts of the case is that the Complainant being an employee of University college of Engineering has allotted a quarter bearing No-F-15/10 on dtd. 30.10.2000.  He has applied for electric connection to the O.P-

The Complainant has booked a reservation tickets from Sambalpur Railway  Reservation booking counter under the O.p-4 for Tata-Amritsar Express Train No- 18103 UP, ticket vide no- 19558004 PNR No- 6462451687, S-11 Berth No-46 and the date of journey was 20.03.2017 from Tata to Varanasi.  On date of journey the Complainant being a lady exchanged her seat  with her family members  and boarded in S-1 berth No-42 and reached at Varanasi about 8.00 a.m on 21.03.2017. But at about 6.00 am. She came to know that her personal money purse containing valuable articles  such as Mobile Phones, Power Bank, Gold ear rings gold nose rings cash 1400-1500 driving license and other articles were stolen  between Tata to Varanasi Railway station. She wanted to consult with the coach attendant, RPF as well as TTE but they were not present in the coach and on the same day 21.03.2017  at about 10.00 am, she  lodged a FIR with the Varanasi GRP Railway station regarding the theft of the purse containing valuable at Rs.60,000/-approximately. But after several months has been passed the articles are not recovered. The O.P-1 & 2 are responsible for the act and omission and deficiency in service of personnel of the Railway. It is the duty of the coach attendant, RPF and TTE to prevent the unauthorised entry of unauthorised person in to the coach. The Coach attendant is responsible for locking the vestibule door at night but he had failed to do so thereby allow free access to the person or persons for theft. As the O.Ps Indian Railways carries business all over India and having Branches/ offices at Sambalpur, hence the Commission have jurisdiction to try this case. As the O.ps have failed to provide adequate and proper services to the passengers in the Train  for which the Complainant is suffering mental pain, agony, harassments and financial loss for which the Complainant is entitled to compensation.

            As per the O.Ps this Forum has no jurisdiction to try this case  as the Complainant was travelling from Tata To Varanasi  in Train Ni- 18103 UP which is not passing through the area within the jurisdiction of this Forum. Again it is contended that the Complainant not booked for transportation personal money purse containing valuable articles  such as Mobile Phones, Power Bank, Gold ear rings gold nose rings cash 1400-1500 driving license and other articles were stolen  between Tata to Varanasi Railway station as Per Section 100 of Railway Act and not known to the O.Ps. As per the above Act the Railway Authority are not responsible for  the theft or loss of articles  carrying by the Complainant at their own risk. The Varanasi GRP is not made a party to this case who can submit proper reply in respect of the result of Complaint/ FIR/lodged by the Complainant.  The Complainant is not entitled to any compensation  since there is no negligence on the part of the Railways.  The Section 100 of Railway Act says about the  Responsibility as carrier of luggage. A railway administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless a railway servant has booked the luggage and given a receipt therefore and in the case of luggage which is carried by the passenger in his charge, unless it is also proved that the loss, destruction, damage or deterioration was due to the negligence or misconduct on its part or on the part of any of its servants. The O.ps has submitted a citation in the case of  “The Chief station Manager South East Central Railway  vrs.  Mamata Agrawal” decided by NCDRC, New Delhi where it is inferred that the Railway Administration shall not be responsible for loss, destruction, damage detoriation or non-delivery of any luggage, unless a railway servant has booked the luggage and gave receipt and it should be proved that such loss/ damage was due to negligence or misconduct on the part of the servants of Railway administration.  The O.P cited an another decision by Hon’ble National Commission in their order dtd. 7^th December 2016 in the case of General Manager Northen Railway Vrs. Prasanta Kumar Ganguly.  The O.Ps also claims that mere purchase of a train ticket at Sambalpur Railway Ticket Counter will not bring jurisdiction  of this Forum.  The Complainant has loss the articles due to her own fault for which the O.Ps shall not be penalized.

As the case is a “YEAR OLD CASE”, this Commission has rightly decided to dispose the case on merit basis.

POINTS OF DETERMINATION:-

1. Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
2. Whether the Forum has jurisdiction to try this case?
3. Whether the O.Ps has committed any Deficiency in Service to the Complainant?

From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he has purchased a Tickets for travelling from the O.P after payment of Ticket price/consideration. Considering the Jurisdiction point it is observed from the C.P act that “ A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,(a)   the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or (b)   any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or (c)   the cause of action, wholly or in part, arises”.  Hence in this case as the O.Ps has a branch office in the territory of this Commission, this Court has jurisdiction to try  this case. Again finding no substance in the Railways contention, the State Commission observed that, the incident of theft had taken place during the railway journey and that too in the night when the train was in motion, it was a difficult proposition to ascertain where the cause of action had arisen. The Commission also noted that, by the time the concerned TTE / coach attendant / Railway Protection Force personnel were contacted and their response evaluated, the train could have reached the jurisdiction of another District Forum or could have even reached the territorial jurisdiction of another State Commission. The Commission made a significant remark to the effect that, in the case of theft in a moving train, the place where the cause of action arose was not that material but the other jurisdictional alternative provided under Section 11 of the Consumer Protection Act, 1986 was more relevant. The said section enables a complainant to institute a complaint in a District Forum within the local limits of whose jurisdiction any of the opposite parties carry on business or have a branch office.Again as regards the issue of negligence of the railway administration, a list of duties prescribed by railway administration "TTE for Sleeper Coaches" is brought on record. Of these, duties prescribed at Sl. No. 4, 14, 16 and 17 are very relevant and are as follows: "

*4. He shall check the tickets of the passengers in the coach, guide them to their berths/seats and prevent unauthorised persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers, do not enter the coach.

*14. He shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required.

 *16. He shall ensure that the end doors of vestibule trains are kept locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach.

*17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorised persons do not enter the coach."

In the case of Union of India & Anr. vs. Manoj H. Pathak, reported as II [(1996) II  the Hon’ble National Consumer Disputes Redressal Commission has specified as under: "It is not in dispute that the complainant had hired services of Railway Administration for consideration and if there is any negligence or deficiency in service on the part of the Railway Administration, then it is a consumer dispute within the scope and ambit of Section 2(1)(d) of the Act. The Complainant was entitled to be carried safely in the train up to its destination in the reserved compartment. However, if any person enters into any reserved compartment unauthorisedly, then besides being liable for criminal prosecution he can be removed from the Railway compartment by any Railway servant or by any of the person whom such Railway servant may call to his aid (see Section 147 (2) of the Railway Act, 1989). The Railway Administration neglected in checking reserved railway compartment and then failed to remove them forcibly for which they are duly empowered by the statute". But here the Complainant has not specifically mentioned the model, price of the mobile, power bank, weight and carat of  Gold ear rings, gold nose rings etc stolen from her possession. Hence from the above we inferred that the O.Ps has committed Deficiency in service as the Complainant has faced mental pain harassment and frustration. This Commission placed reliance in the case of Union of India through General Manager& Ors vrs. Shri Bishal Kumar Dev,IAS and Ors. decided by Hon’ble National Commission New Delhi on dtd. 28.09.2010 and we order as under:-

ORDER

That the Complaint petition is allowed. The O.Ps are jointly and severally is directed to pay Rs 50,000/- to the Complainant towards the stolen articles. Further the O.Ps are are jointly and severally directed to pay an amount of  Rs.10,000/-(Rupees Ten thousand ) by way of compensation to the Complainant for causing him mental, physical and financial loss and agony and Rs. 5,000/-(Rupees Five Thousand) as litigation costs. This amount shall be paid by the OPs to the Complainant within a period of 8 weeks from the date of receipt of a certified copy of this order, failing which the OPs shall pay interest @ 5% per annum on this amount from the date of filing the complaint, i.e., 16.11.2017 till its realisation."

Order pronounced in the open Court today i.e, on 12^th day of April 2021 under my hand and seal of this Commission.

Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.

I agree,                     

-Sd/-                                                                                                               -Sd/-

MEMBER(W)                                                                                                            PRESIDENT  

                                                            Dictated and Corrected

                                                                             by me.

                                                                             -Sd/-

   PRESIDENT