CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/14/252
Instituted on : 15.04.2014
South East Central Railway,
Through : The Senior Divisional Commercial Manager,
South East Central Railway,
Raipur, District Raipur (C.G.) … Appellant.
Vs.
Ashwani Ritwal, S/o Shri Baruram Ritwal,
R/o : Gali No.6, V.V. Vihar Colony, Mowa,
Raipur, Tehsil & District Raipur (C.G.) … Respondent.
PRESENT: -
HON’BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT
HON’BLE MS. HEENA THAKKAR, MEMBER
HON’BLE SHRI D.K.PODDAR, MEMBER
COUNSEL FOR THE PARTIES: -
Shri H.N. Das, for the appellant.
Shri R.K. Bhawnani, for the respondent.
Order
Dated : 11/03/2015
PER :- HON’BLE JUSTICE SHRI R.S.SHARMA, PRESIDENT.
This appeal is directed against the order dated 22.03.2014, passed by District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth called "District Forum"), in CC/12/525. By the impugned order, learned District Forum has allowed the complaint and directed the appellant (O.P.) to pay within a month from the date of order a sum of Rs.1,80,000/- along with interest @ 18% p.a. from the date of filing of the complaint i.e. 19.12.2012 till realisation. The District Forum has further directed the appellant (O.P.) to pay a sum of Rs.1,00,000/- as compensation for mental agony and Rs.2,000/- as Advocate fees and cost of litigation to the respondent (complainant).
2. Briefly stated, the facts of the case are that the respondent (complainant) has purchased tickets for the journey from Raipur to Hazrat Nizamuddin, New Delhi on 01.10.2011 in Chhattisgarh Sampark Kranti Express Train No. 12823 and he was allotted seat No.47 & 55 in Coach No.S/5. The respondent (complainant) has kept his suitcase below the Seat No.55 and tied and locked the suit case with the help of chain, when the train reached at Jhansi Railway Station he found that his suitcase was missing from the place, he in turn reported the matter to T.T.I. of the coach, as the train left from Jhansi, the T.T.I. said to lodge report at Hazrat Nizamuddin Police Station. The respondent (complainant) lodged report at Hazrat Niazmuddin Police Station regarding theft of suit case containing gold and silver ornaments including Rs.3,000/- cash total worth Rs.1,80,000/-. He also made a report to Railway administration but the Railway administration did not give any response, hence the respondent (complainant) filed a consumer complaint before the District Forum and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The appellant (O.P.) filed his written statement before the District Forum and averred that the respondent (complainant) has kept his suitcase below Seat No.55 and tied and locked the suit case with the help of chain, and responsibility of its security lies on the respondent (complainant) himself. As per provisions of Section 100 of the Railways Act, 1989 the Railways is only responsible for security of those articles which were booked with Railway and receipt for the booking is issued. The respondent (complainant) performed his journey with suit case negligently in his own responsibility and for his negligent act, the Railway is not responsible. The respondent (complainant) has not informed the name of co—passenger, who supports the fact of theft of the suit case of the respondent (complainant). The respondent (complainant) has not given information regarding name and particulars of the T.T.I. and also not informed that to whom he informed regarding the incident. The respondent (complainant) has not submitted any receipt or proof from which it is clear that the articles are the same, and the responsibilities to prove the same lies on the respondent (complainant). The respondent (complainant) has not produced any documents in respect of such articles and the jurisdiction lies under Section 13 & 15 of the Railway Claims Tribunal Act but in this regard the respondent (complainant) has not initiated any proceedings, therefore, the complaint cannot be heard by the District Forum and is liable to be dismissed as barred by jurisdiction. The appellant (O.P.) has not committed any deficiency in service or unfair trade practice. The respondent (complainant) himself is responsible for the so-call loss and for such loss he could have take action under Railway Claims Tribunal Act. In Absence of notice under Section 106 of The Railways Act, 1989, the complaint is liable to be dismissed.
4. After having considered the material placed before it by both the parties, learned District Forum has allowed the complainant and directed the appellant (O.P.) to pay compensation to the respondent (complainant), as mentioned in para 1 of this judgment.
5. The respondent (complainant) has filed documents. A-1 is photocopy of railway ticket, A-2 is photo copy of First Information Report (Zero FIR) (Under Section 154 Cr. P.C.), A-3 is letter dated05.11.2012 sent by the respondent (complainant) to South East Central Railway, Through Manager, Raipur (C.G.).
6. Shri H.N. Das, learned counsel appearing for the appellant (O.P) argued that the impugned order passed by the District Forum, is contrary to law. The District Forum did not properly consider the provisions of Section 100 & 103 of the Railways Act, 1989, therefore, the impugned order passed by the District Forum, is without jurisdiction. The Railway administration is not responsible for compensating the respondent (complainant) which was occurred due to theft. It is the duty of the respondent (complainant) to book the luggage with Railway authority but the respondent (complainant) did not book the luggage properly with the Railway authority, therefore the respondent (complainant) is not entitled to get any compensation from the appellant (O.P.). The impugned order passed by the learned District Forum suffers from irregularity and illegality and is liable to be set aside. He place reliance on Petition(s) for Special Leave to Appeal (Civil) No(s).34738-34739/2012 in Vijay Kumar Jain vs. Union of India & Anr. decided by Hon'ble Supreme Court on 02.07.2013; Chapter XI booking of Certain Valuable Articles as mentioned in part I of Schedule II of the Railways (Extent of Monetary Liability and Prescription of Percentage Charge) Rules, 1990.
7 Shri R.K. Bhawnani, learned counsel appearing for the respondent (complainant) argued that the District Forum, Raipur (C.G.) has jurisdiction to try the case. The respondent (complainant) boarded in train No.12823 Chhattisgarh Sampark Kranti from Raipur (C.G.) to Hajrat Nizamuddin Railway Station, New Delhi. The respondent (complainant) has kept his suitcase below the Seat No.55 and tied and locked the suit case with the help of the chain, when the train reached at Jhansi Railway Station he found that his suitcase was missing from the place. He further argued that the respondent (complainant) was carrying luggage with him and luggage was properly chained and due precautions were taken by the respondent (complainant) to secure the luggage, therefore, it is the duty caste upon the Railways authority to provide proper security and due to negligence and not providing proper security by the appellant (O.P.), the incident took place. Hence the Railways authorities are liable to pay compensation to the respondent (complainant). The impugned order passed by the learned District Forum is just and proper and does not call for any interference by this Commission.
8. We have heard counsel for both the parties and have also perused the record of the District Forum.
9 In Vijay Kumar Jain vs. Union of India & Anr. (Supra), Hon'ble Supreme Court has observed thus :-
"The District Forum dismissed the complaint by observing that the Complainant had negligently placed his luggage on berth No.43. The District Forum relied upon the provisions of the Railways Act, 1989 and held that the railways cannot be held responsible for the goods which are not booked. The State Commission agreed with the District Forum that the respondents cannot be held responsible because the luggage was not booked by the petitioner. The National Commission opined that the finding recorded by the District Forum and the State Commission on the petitioner's own negligence in placing attachi case on berth 43 was a pure finding of fact and does not call for interference in exercise of the revisional jurisdiction under Section 21 of the Consumer Protection Act, 1986".
10. The facts of the instant case are quite distinguishable from the facts of the aforesaid cited judgment. In the instant case the respondent (complainant) specifically pleaded that the respondent (complainant) was carrying his one suitcase, and the suitcase was put below the berth and it was properly tied and locked with the help of chain.
11. The respondent (complainant) was travelling in the Train No.12823 Chhattisgarh Sampark Kranti Express from Raipur to Hajrat Nizamuddin Railway Station, New Delhi and the incident took place between Raipur and Jhansi. The respondent (complainant) started his journey from Raipur and he kept his suit case below the berth and tied and locked the suit case with the help of chain, and the berth was allotted to him at Raipur, therefore, the cause of action has also arisen at Raipur (C.G), therefore, learned District Forum, Raipur (C.G.) has jurisdiction to decide the case.
12. In General Manager, South Eastern Central Railway, Bilaspur (C.G.) vs. Smt. Pratima Tripathi (Appeal No.159/2010), this Commission vide order dated 30.10.2010 has observed thus :-
"8. Counsel for the appellant has also drawn our attention towards the provisions of Section 100 of the Railways Act, 1989 as well as Rule 506.2 of India Railway Conference Association (IRCA) Tariff No.26 part II. We have gone through both these provisions and found that none of these provisions has any relation with any reserved compartment. It is true that normally passengers are expected to take care of their personal luggage, but when one travels in a reserved compartment, then naturally a duty is imposed upon servants of the Railway to take care of such passengers and their personal luggage, because unauthorized entry in such reserved compartments are restricted and no-one can enter in such reserved compartment, unless permitted by TTE or conductor in-charge of that compartment, therefore the appellant cannot get any benefit of Section 100 of the Railways Act, 1989 and rule 506.2 of India Railway Conference Association (IRCA) Tariff No.26 part II.
9. Considering the report of Divisional Security Commissioner and reply of TTE, submitted to his Authorities, we are convinced that an unauthorized person was allowed by the TTE to travel in reserved compartment and therefore the incident of theft has happened.
10. In these circumstances, the District Forum has not committed any mistake in awarding compensation against the appellant, equivalent to the value of articles kept in the purse and such value was reported immediately after the incident by lodging report with the GRP. The appeal has got no force and is dismissed. No order as to cost".
13. In Revision Petition No.3574 of 2007, General Manager, South Central Railway & Ors. Vs. Jagannath Mohan Shinde, decided on 11.04.2012, Hon'ble National Commission has observed thus :-
"…………The plea of the Petitioner that since the Respondent had not booked the luggage against a receipt from the Petitioner / Authority as per Section 100 of the Indian Railways Act, Petitioner cannot be held responsible as a carrier of luggage if it is proved that the loss was due to the negligence or misconduct on the part of the any of its servants. In the instant case, the TTE failed to perform his duties which clearly amounts to both negligence under Section 100 of the Indian Railways Act and deficiency in service as per the codified duties of TTE".
14. In Appeal No.690/2009 Abdul Momin Khan Vs. Indian Railway and others, decided by this Commission on 24.09.2010, it has been observed thus :-
"9. Counsel for the appellant has drawn our attention towards pronouncement of Hon’ble National Commission in the case of Union of India Vs. Sanjiv Dilsukhrai Dave, I (2003) CPJ 196 (NC), wherein taking note of rule 506.2 of Indian Railway Conference Association (IRCA) it has been observed that “Rule 506.2 of IRCA is also of no avail to the petitioner Railway. During journey one cannot be expected to take measures against intruders getting easily into reserved compartments and running away with goods, when the Railway Administration is charged with the responsibility to prevent such unauthorized entry.
10. In view of the aforesaid, we find that deficiency in service against the respondent is established.
11. Now the question is remains to be decided is proper amount of compensation, to be awarded. In the FIR the appellant herself has declared Rs.12,000/- as the value of the articles which were stolen. Later on the figure was exaggerated, at the time of filing complaint before the District Forum and some bills have been obtained from here and there. We find that the earliest version of the complainant by way of first information should be believed. Therefore, the value of the stolen articles is presumed as Rs.12,000/- and this is the amount which can be awarded against the respondent on account of deficiency in service committed by it, in not protecting properly the body and luggage of the passengers during journey in reserved compartment".
15. Section 100 of The Railways Act, 1989 reads thus :-
"100. Responsibility as carriers 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 therefor 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".
16. Section 103 of the Railways Act, 1989 reads thus :-
"103. Extent of monetary liability in respect of any consignment:- (1) Where any consignment is entrusted to a railway administration for carriage by railway and the value of such consignment has not been declared as required under sub section (2) by the consignor, the amount of liability of the railway administration for the loss, destruction, damage, deterioration or non-delivery of the consignment shall in no case exceed such amount calculated with reference to the weight of the consignment as may be prescribed, and where such consignment consists of an animal, the liability shall not exceed such amount as may be prescribed.
(2) Notwithstanding anything contained in sub-section (1), where the consignor declares the value of any consignment at the time of its entrustment to a railway administration for carriage by railway, and pays such percentage charge as may be prescribed on so much of the value of such consignment as is in excess of the liability of the railway administration as calculated or specified, as the case may be, under sub-section (1), the liability of the railway administration for the loss, destruction, damage, deterioration or non-delivery of such consignment shall not exceed the value so declared.
(3) The Central Government may, from time to time, by notification, direct that such goods as may be specified in the notification shall not be accepted for carriage by railway unless the value of such goods is declared and percentage charge is paid as required under sub-section (2)".
17. On the basis of above cited judgements, it is established that respondent (complainant) was carrying articles with him during the journey in train and he obtained reserved ticket in Coach No.S-5 of Chhattisgarh Sampark Kranity Express Train No.12823, therefore, it is the responsibility of the railway administration to provide proper security to the passengers, who are travelling in the reserved compartment of the train and to prevent the unauthorised persons to enter in the reserved compartment .
18. In the instant case the Railway department utterly failed to prevent such unauthorized person to enter in the reserved compartment. In view of aforesaid, we find that deficiency in service against the appellant (O.P.), is established.
19. Now the question remains to be decided is proper amount of compensation to be awarded ?
20. The incident took place between 01.10.2011 to 02.10.2011 and when the respondent (complainant) reached at Jhansi Railway Station, he found that his suit case was missing and some miscreants had stolen the suit case. The respondent (complainant) lodged First Information Report on 02.10.2011 at Police Station Hazrat Nizammudin Railway Station. In the First Information Report, it is mentioned that golden chain with locket weighing 1.5 tola, two golden rings weighing 1 tola, ear ring (kaan ki bali) weighing 4.5 gm, jhumka with chain weighting 1.8 gms, mangal sutra weighing 1 tola, 2 ear tops 0.8 gm, 6 naak ki tili, 5 pairs chandi ki payal, pairs bichiya, Rs.3,000/- cash, 3 silver coins, valuing Rs.1,80,000/-.
21. The respondent (complainant) lodged First Information Report in the Hazrat Nizammudin Police Station, without delay and details of the articles kept in the suit case which was stolen is given in the FIR. The value of the stolen article was Rs.1,80,000/-.
22. Looking to quantity of the ornaments etc., the valuation made by the respondent (complainant) is just and proper. The incident took place between 01.10.2011 to 02.10.2011. The First Information Report was lodged on 02.10.2011. It appears that FIR was lodged on the same day at Police Station Hazrat Nizamuddin. In the FIR the value of the articles stolen is mentioned as Rs.1,80,000/-.
23. Looking to the facts and circumstances of the case, the evaluation of the cost of the articles made by the District Forum to the tune of Rs.1,80,000/- appears just, proper and reasonable.
24. In our view the finding recorded by the District Forum, is just and proper, impugned order does not suffer from any irregularity or illegality and does not call for any interference of this Commission.
25. Hence the appeal filed by the appellant (O.P), being devoid of any merits, is liable to be and is hereby dismissed. No order as to the cost of this appeal.
(Justice R.S.Sharma) (Ms.Heena Thakkar) (D.K.Poddar)
President Member Member
/03/2015 /03/2015 /03/2015
