As per Hon’ble President. Mr. Atul Alshi.

1.              The complainant has filed this complaint against theft of complainant’s purse while travelling in railway compartment due to negligence of OP to take care of belongings of complainant.   

2.               The fact of complaint in short is as under –

The complainant and her husband were travelling in Azad Hind Express to attend Durga Pooja festival at West Bengal on 23/09/2017 from Nagpur to Howrah junction in one compartment bearing berth no. AC 2 tier bogie A1 berth No. 7 PNR No. 8660004293 & berth No. 17 PNR No. 8361615326.  After taking meal, the complainant and her husband were slept in the night.  When the complainant was going to washroom some unidentified and suspicious person were seen in compartment. The attendant was in fast asleep at that night. The complainant told to Ticket Checker and made complaint about unidentified person. Thereafter the complainant’s purse was missing. The complainant went to the berth of her husband and then they went to the attendant but he was slept on berth and thereafter the complainant made complaint with ticket checker in respect of theft of purse. After reaching to Howrah railway station 0n 24/09/2017 the complainant registered First Investigation Report at railway police station Howrah for the theft of golden ornaments approximately 90 gram with Titan ladies watch and cash amount Rs.45,000/- alongwith pendrive and some important notes from Periyar University. Thereafter, the complainant and her husband visited police station at several times for further outcome of investigation and made necessary complaint with higher officers. Thereafter, the complainant issued legal notice to OP and after receipt of notice OP failed to comply. Hence, the complainant compelled to file this complaint.      

3.               The OP No. 1, 4 & 5 filed written statement and denied allegations and submitted that the complainant has not mentioned names of any co-passenger who had the witness for the alleged incident. The golden jewelry and silver coin falls under ambit of excepted article as mentioned in Indian Railway Act for which special provision has been made applicable for carriage by railway. The complainant had filed complaint in respect of theft at police station which is under investigation. Thereafter, filing this complaint without investigation is premature case. As per Indian Railway coaching Tarrif Part – I Vol. (Pg no. 58) “Passengers are requested to take into carriage only such articles of personal luggage as required for their own use on the journey can be placed in the carriage.  All articles taken into the carriage are carried at the entire risk of the owner.”   Therefore, the complainant committed overacts in contravention of railway rules for which railway cannot be mounted with liability. The complainant’s have failed to disclose regarding carriage of valuable goods prior to commencement of journey to OP. The complainant has no legal right to invoke the provision of Consumer Protection Act 2019 as the complainant’s had not booked the articles allegedly stolen nor any fare has been paid for carrying of articles. As per section 100 of Indian Railway Act, the railway has never allowed to carry the valuable ornaments with them nor any receipt for carrying.   Therefore the railway administration has not responsible for loss, destruction, non-delivery of luggage, unless a railway servant has booked the luggage and gave the receipt of these. Due to negligence and conduct on the part of complainant to take care of ornaments hence OP is not liable to compensate.  Therefore, the case deserved to be dismissed with cost.   

4.               The OP No. 2 & 3 filed Written Statement and denied allegation and submitted that as per section 100 of Indian Railway Act, railway is not at all liable to compensation for theft of ornaments as railway has not allowed it or any receipt issued by railway for that. The complainants have not paid any charges or fare for carrying ornaments or valuable articles. Therefore, railway administration is not responsible for loss, destruction, damage, non-delivery of luggage unless railway servant booked luggage and gave receipt of luggage. Therefore, no negligence attributable to specific employee and therefore no any deficiency on the part of OP. Hence case deserved to be dismissed with cost.

5.               The counsel for complainant argued that complainant is respected person in society and started night journey Nagpur to Howrah. When the complainant’s were slept at the time of theft no railway police force was in train and train was passing from central railway zone to south east railway zone.  After reaching to Howrah destination FIR is lodged. The attendant was slept in train. It is duty of OP to take case of luggage of passengers with adequate security. It is the duty of Ticket Checker to remove the non ticket holders from bogie. Therefore, all OPs are liable to compensate. The counsel for complainant relying on the following judgments –

1) Station Superintendent, North Western Railway and ors Vs. Jasmin Mann. NCDRC, New Delhi on 23^rd August, 2017

“In the instant case also the coach attendant was negligent in leaving the door open due to which as unauthorized person entered into the reserved AC II Tier coach and committed theft.”

2)   Union of India Vs. Dr. Shobha Agarwal. NCDRC, New Delhi on 22^nd  July, 2013

“A major responsibility cast on the TTE in addition to examining the tickets is that of ensuring that no intruders enter the reserved compartments….. This is certainly a gross dereliction of duty which resulted I deficiency in service to the respondents.”

3)  Sumatidevi M. Dhanwatay Vs. Union of India Ors., II (2004) CPJ 27 (SC); 2004 (3)Supreme 291,

“Railway administration cannot escape its liability for negligence and deficiency in service in failing to prevent unauthorized persona assaulting passengers in railway compartment and taking away their luggage.”

6.               The counsel for OP argued that as per section 100 of Railway Act the railway administration is not liable to compensate unless the goods or valuable are booked and receipt is issued. The passengers are require to carry the luggage for routine own use only with them. The OP’s are relying on the following judgement.

Special Leave to Appeal No. 34738-34739/2012 Vijaykumar Jain Vs. Union of India decided on 02/07/2013  

“The provisions of Railways Act, 1989 and held that Railways cannot be held responsible for the goods which are not booked. The Hon”ble Apex Court has further observed that when the passenger allotted the berth and he had voluntary attachi case on berth. Therefore, the Railways cannot be held responsible for the alleged loss of attachi case by way of theft or otherwise.                    

                                       REASONING

7.                               Heard, both the counsels at length. We have considered the following points and we have recorded our findings thereon as follows for the following reasons-

            POINTS                                FINDINGS

1. Whether the complainant is consumer ?                Yes.
2. Whether OP committed negligence and                 deficiency in service ?                            No.
3. What order ?                         As per final order.

8.               The complainant and her husband were travelling in Azad Hind Express in  AC 2 tier bogie for Durga Pooja Festival at West Bengal on 23/09/2017. In the night, the complainant’s purse was missing and some unidentified persons were moving in suspicious circumstances. After missing of purse, the complainant and her husband made complaint with Ticket checker and on 24/09/2017 FIR is registered bearing No. 17/445 against unknown person at railway police station Howrah in respect of theft of purse and another important document with valuable articles approximately amounted Rs.3,00,000/-. The complainant made several complaints with higher officer for early investigation of crime and thereafter issued legal notice to OP. It is admitted fact the complainant had not booked the valuable ornaments with OP nor paid any charges for carrying ornaments or given any information to OP for carrying articles before journey. As per section 100 of Railway Act 1989 Railway Administration shall not responsible for any loss, damage or non-delivery of luggage unless railway servant booked the luggage and give receipt for that. The police machinery has registered FIR in respect of theft and accused are not traced out. Unless and until the accused person involved in theft are traced out and convicted till offence of theft has not been proved. Complainant had failed to submit proper evidence of carrying golden ornament in journey with them. The registration of FIR is mere statement of occurrence of incident so as to put criminal law in motion. FIR is not substantive evidence. It is necessary on part of passengers to care their luggage and belongings as the passenger purchase railway ticket for carrying person and not goods. It is the duty of passenger take due care of their belongings particularly at night. It is not possible to railway administration to provide each police person in each compartment of bogie. Therefore, there is no negligence on the part of OP during journey. Hence, no liability can’t be fastened on railway.  

We, therefore, pass following order.

                          ORDER

1. The complaint is dismissed.
2. No order for cost.

Copy of the order shall be supplied to all the parties free of cost