G.H. RATHOD – HON’BLE  MEMBER 

1)        By this complaint the Complainant has prayed that the delay, if any caused in filing this complaint may pleased be condoned in the interest of justice.  The Complainant has also prayed to direct the Opposite Party to pay Rs.25,000/- the cost of valuable lost with 12% interest from 01/02/2009 till the payment and Rs.5,000/- a legal charges of this complaint. 

2)        According to the Complainant, that on 10/02/09 she was traveling by the Dadar- Maysore, Sharavati Express, departure from Dadar Railway Station, platform No.7.  When the train started for the journey at the same time one unknown person came near her from behind and snatched the “Mangalsutra” from her neck which was valued nearly Rs.25,000/- at the time when it was purchased and that unknown person ran away form the running train.  The Complainant shouted and asked for help but no guard or any person came to help her.  It is alleged that on the aforesaid date she was going to her matrimonial place in Karnataka Village – Kaushal Nagar to attend ritual function. Because of urgency she was unable to lodge the complaint of the said incident on same date.  So she lodged the FIR of the said incident on 06/03/09 with Dadar Railway Police Station when she returned to Mumbai.  The copy of the FIR of the said incident issued by Dadar Railway Police is at page 8 to 11.

3)        It is submitted that the Complainant was continuously in touch with Dadar Railway Police but no positive result was obtained to her. Only one letter dtd.05/06/09 received to her from Dadar Railway Police under which it was informed that the investigation is still in process.  The copy of letter is at page 12.  It is also submitted that on failure on the part of Dadar Railway Police to give any recovery of her valuable she issued notice dtd.18/02/2011 to Additional General Manager, Director of Public Grievance for compensation for the loss suffered by her in the railway premises.  As per the letter of Addl. General Manager, dtd.25/02/2011 he forwarded the said notice to Chief Commercial Manager, CST, Mumbai as being the competent authority to deal & decide the case.  The copy of notice is at page 17 & 18 & copy of letter dtd.25/02/2011 is at page 14 and copy of letter dtd.04/03/2011 is at page 15.

4)        It is submitted that the Complainant is a consumer within the meaning of Sec.2(d) of the Consumer Protection Act, 1986  the weight of ornament stolen i.e. Mangalsutra was of 48.200 gms. and valued at Rs.25,000/- at the time when Mangalsutra was purchased. The copy of purchase bill is at page 16. The Complainant stated that after this incident she was waiting for last two years for the recovery of her Mangalsutra but she did not get any positive information from Opposite Party.  Hence, the Complainant prayed for the reliefs as per para 1 of this order. 

5)        The Opposite Party contested the claim by filing written statement and affidavit of Shri. Atul Rane, Railway Manager.  It is contended that the complaint barred by the limitation period as alleged cause of action is dtd.10/02/09 and the complaint filed 25/04/2011 and therefore, there is delay of 75 days. No separate application for condonation of delay is field.  There is only more prayer to condone the delay but no reasonable and sufficient cause is given and therefore, the complaint is liable to be dismissed on this sole ground. 

            According to the Opposite Party, the Complainant withdrawn Complaint No.104 of 2011 by the order of this Forum on 27/04/2011 & present complaint appears to be filed on 25/04/2011 before withdrawal of earlier complaint & therefore, present complaint is not maintainable.  It is submitted by the Opposite Party that the Complainant avoided to annex the journey ticket of dtd.10/02/09.  Hence, there is no evidence on record that the Complainant traveled on the date of alleged incident. It is submitted that the cause of action arose on 10/02/09 and FIR was lodged on 06/03/09 and matter was not reported to Railway Staff on board. The FIR could have been lodged on board with Traveling Ticket Examine.  Notice to this effect is published in time table for information to all passengers.  

6)        The Opposite Party has also contended there is no evidence that the Complainant was carrying “Mangalsutra” valued of Rs.25,000/- during the alleged journey.  The investigation of the said incident was carried out by Govt. Railway Police who have under control of State Government and the Complainant has not impleaded to the said authority as Opposite Party. It is also submitted that the Opposite Party had provided reasonable & adequate security within the Railway Premises.

            It is contended that as per Sec.100 of Railway Act, 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 receipt of the same and hence, the Opposite Party is not responsible to pay anything for this incident and there is no negligence on the part of Railway Administration. The Opposite Party therefore, prayed that complaint be dismissed with compensatory cost. 

7)        The Complainant has filed her affidavit of evidence and she has also filed some documents on record in support of her complaint.  Both the parties filed their written argument. We heard the argument of both the parties.  We heard the Ld.Advocate Shri. Vikas Shinde on behalf of Complainant and Chief Law Assistant for the Opposite Party.  The Ld.Advocate Shri. Shinde argued in his oral argument, the delay if any in filing the complaint may please be condoned.  He also submitted that Railway Administration not provided the security in railway premises hence, the Opposite Party is responsible to compensate for the incident of theft. He also submitted that in the similar case Bandra Forum, in CC. No.MSDF/898/2009 order dtd.08/11/2010 granted the relief.  He also submitted that the Complainant filed his complaint of this incident with Commissioner of Police, Mysore on 12/02/09 and the copy of that complaint was also given to Dadar Railway Police and thereafter, filed FIR with Dadar Railway Police on 06/036/2009 and therefore, he prayed relief may be granted in the interest of justice.  The Chief Law assistant of Opposite Party argued that the complaint is not file within limitation period, there is 75 days delay in filing this complaint and no separate application for delay condonation filed by the Complainant and delay not properly explained by the Complainant.  He also submitted that in Sec.100 of Railway Act, Railway liability & responsibility defined.  The Complainant has not taken proper care of her belongings and hence, Railway Administration is not responsible for this incident. He relied on the following judgments in support of contention of Opposite Party -

            1)  NCDRC  New Delhi   Revi. Petition No.191/2006   decided on 28/09/2010.

            2)  NCDRC New Delhi    Revi. Petiton No.95/2005      decided on 10/02/2009.

            3)  NCDRC New Delhi Revi. Petition No.4449 of 2010 decided on 16/07/2012.

He also submitted that the Complainant has not proved any deficiency or negligence on the part of Railway Administration hence, this complaint may please be dismissed.  

8)        We have perused the document filed by the Complainant, it appears that the cause of action arose on 10/02/09 and complaint filed on 29/04/2011.  There is delay of more than 75 days for filing this complaint. Complainant has not filed separate application for condonation of delay and she has also not properly explained the reason of delay.  In this case the delay of filing complaint is not condoned hence, the complaint is liable to be dismissed.  

            The earlier Complaint No.104/2011 which was withdrawn vide order dtd.27/04/2011 was filed on 25/03/2011.  The said complaint was also not filed within 2 years from the date of cause of action, i.e. 10/02/2009.  Thus, we hold that the complaint is barred by time and liable to be dismissed.  

            Even assuming that the complaint can be entertained as it is then also in the instant case Complainant has not filed her complaint with TTE in the train. She alleged that she had filed her complaint with Commissioner of Police Mysore but there is no acknowledgement on the said complaint of the Commissioner of Police, Mysore.  It is not in proper format. She has not filed her complaint on the way or even before the Station Master on termination of her journey.

There is also delay in filing F.I.R. about 23 days at Dadar Railway Police Station.  In the said F.I.R. there is no mention that the Complainant had lodged any complaint before Commissioner of Police, Mysore. Hence, the order of Bandra Forum relied by the Complainant is not applicable to this case. The Hon’ble National Commission, Petition No.2451/2007 in its order dtd.18/07/2010 held that the delay in lodging complaint can not be easily overlooked and held that Railways cannot be made liable to make good the loss suffered by the petitioner only because a theft had taken place (reported in CPJ Oct 2011 Part 10 Volume IV Page 106).  The facts of this case are very identical to the above reported case.  We therefore, hold that on merits also the Complainant has not case for grant of reliefs claimed against the Opposite Party.  The contention therefore, raised by the Opposite Party is justifiable.  

Considering the aforesaid discussion we hold that this complaint deserves to be dismissed.  Therefore, we pass the following order -  

O R D E R 

i.                    Complaint No.134/2011 is dismissed with no order as to cost.   

         ii.                 Certified copies of this order be furnished to the parties.