PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1)This is the complaint regarding the deficiency in service on the part of Opposite Party as he has not taken measures to protect the valuables of his passengers travelling in the train.
2) The facts of the case as mentioned by the Complainant are that, the Complainant, Brig D.D. Bhalla and his wife (hereinafter called Complainants) were returning to Mumbai from Delhi. They were travelling in Train No.2926 Paschim Express. The train left Delhi at 16.25 hrs. on 08/12/07. The Complainants had their reserved berths 43 & 45 in Air conditioned coach A2. They were having their valid ticket No.50901297. Before retiring for the night they took due care of their belongings. They closed zipper purse containing a mobile phone and cash of Rs.48,000/-. This purse was kept near the pillow at the far corner of the lower berths 43 & 45. The berths were separated from the common passage by a curtain.
3) At about 4.00 hrs. on 09/12/07, Mrs. Bhalla, when woke up, she found that, the above said purse was missing. Both the Complainants made frantic efforts to search the said purse and its contents. During the search it was noticed abandoned behind the toilet wall ceiling fan alongwith another purse. The Complainants took out their own purse and they found that the cash was missing from the purse leaving mobile phone inside the purse. The coach attendant was alerted FIR was filed on 09/12/07 and handed over to George CTI (before Ratlam).
4) The Chief Security Commissioner RPF gave final report vide intimation dtd.05/09/08. This report stated as follows – “Enquiry has revealed that the concerned attendant Shri. Abhay Singh on duty in Train No.2952 on 08/12/07 has been found responsible for the theft for being negligent.” Thereafter the Complainant vide letter dtd.27/09/08 demanded a compensation for loss of Rs.48,000/- due to admitted negligence of the attendant. No unauthorized persons were allowed in the reserved A/c. coach. The Chief Commercial Manager of the Opposite Party replied to this letter but no compensation was awarded. The Complainants have suffered a loss, mental agony, inconvenience and frustration since the incident.
5) The Complainant has further stated that the Opposite Party has admitted that his attendant is responsible for negligence. The Complainants sustained the monetary loss. Hence, the Opposite Party is vicariously liable for the negligence of his employee. The cause of action arose due to negligence of the Opposite Party. The Opposite Party has its head quarters in South Mumbai and hence, this Forum is the competent Forum to have the jurisdiction to entertain this complaint.
a) The Complainants have prayed that the Opposite Party be directed to reimburse the amount of Rs.48,000/- with 9% interest thereon from 15/09/08 when the Opposite Party admitted its own negligence.
b) It is also prayed that a compensation of Rs.10,000/- be awarded to the Complainant for mental agony, inconvenience, etc. caused to the Complainant.
The Complainants have attached the xerox copies of the following documents with their complaint -
Railway ticket from New Delhi to Bandra Terminus, FIR receipt dtd.09/12/07, FIR receipt by RPF Surat, letter dtd.28/12/2007 received on 31/12/2007, Letter dtd.11/03/08 from Chief Security Commissioner RPF, Letter dtd.04/06/08, Letter dtd.27/06/08, Letter dtd.05/08/2008 & 08/08/2008, Letter dtd.15/09/2008, Letter dtd.27/09/08, Letter dtd.04/11/08, Letter dtd.18/11/08 & 20/11/08.
6) The complaint was admitted and notice was served on the Opposite Party who filed written statement wherein it is stated that the FIR was filed by the Complainant at Ratlam and Surat as stated in para 5 of the complaint. Therefore, the cause of action arose at Ratlam or at Surat. Hence, this Forum does not have a jurisdiction to entertain this complaint.
7) The Opposite Party has further stated that the railway does not have any responsibility for luggage which passengers carry with them. However, arrangements are made through RPF/GRP for the safety of the passengers. Further the Complainant had not given any proof of carrying the cash with him and Railway has no control over the personal belongings.
8) It is further submitted that the Railway is carrier and is governed by the provisions of Railway Act, 1989, Sec.100. It provides as “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 servant.”
9) It is further stated by the Opposite Party that the report relied by the Complainant shows that it is IRCTC which is responsible and not any of the employees of Railway The IRCTC is an independent corporation and not in any way under the control of Western Railway.
10) It is further submitted by the Opposite Party that vide letter dtd.18/11/08 & 20/11/08, the Opposite Party have already forwarded the complaint to Group General Manager, IRCTC (West Zone Mumbai to investigate the matter and to initiate disciplinary action against Mr. Abhay Singh, the coach attendant, found guilty. The Complainant has not made IRCTC a party to this complaint which is a proper party. The Opposite Party has not made RPF as a party who are responsible for the safety of the passengers. Hence, the complaint be dismissed for non-joinder of a proper party. The Railway Protection Force is responsible in the train. RPF is headed by the Chief Security Commission at Zonal level. The RPF and the IRCTC are basically responsible for safety and these two departments are independent of the Opposite Party.
11) The Complainant at no point of time has addressed any single letter or complaint to Opposite Party but the Complainants made the Opposite Party to the complaint. It is further submitted that the Railway (Opposite Party) does not know how much cash or belongings are taken by the passengers at the time of traveling. For the things which are not known to the Railway or which have not been disclosed by the Complainant, there is no responsibility of the railway. It is also submitted by the Opposite Party that the FIR does not allege any grievance against the employee of the Opposite Party for the loss of the cash.
12) Finally the Opposite Party has prayed that the complaint be dismissed with cost.
13) The Opposite Party has also filed an affidavit wherein the contents of the complaint are reiterated. The Complainants also submitted their written argument wherein they reiterated the facts mentioned in the complaint alongwith some citations. We heard the Ld. Representative of the Complainants and the Ld.Advocate for the Opposite Party alongwith the Opposite Parties representative. We also perused all the papers submitted by both the parties and our findings are as follows –
14) The Complainants were having the valid Railway ticket for journey from New Delhi to Bandra Terminus, Mumbai. On this valid ticket they were travelling in A/c. Coach of Train No.2926 Puchim Express. During the travelling at night time before 4 a.m. on 09/12/07, the purse of the Complainants was stolen containing a cash of Rs.48,000/-. On search the purse was found in the toilet but the cash from the purse was stolen. Immediately, on the same day FIR was given by the Complainants in respect of the theft of the said cash. “The confidential enquiry was conducted by RPF of Western Railway as well as Chief Security Commissioner/ RPF, W. C. Railway Jabalpur. The report of enquiry has revealed that the concerned coach attendant Shri. Abhay Singh on duty has been found responsible for the theft for being negligent:”
15) When a passenger travels in the A/c. Railway Reserved Coach, it is the responsibility of the Railway Authority (Opposite Party) to take the passenger to his/her destination safely alongwith his belonging and take proper steps for their safety. In the instant case the Complainants were travelling in a reserved A/c Coach. The berths were isolated from the common passage by a curtain, still someone comes and take away the purse kept underneath the pillow. This certainly reflects the lack of proper precautions taken by the Railway authority (Opposite Party). Actually in reserved A/c compartment, a special attendant, is generally appointed to look after the passengers. Ticket checking staff is always there to see that no unauthorized person enters the coach. There are always RPF Personnel and Railway Police Force to protect the property of the Railway itself and its passengers travelling in the train. From the incident of this complaint it is seen that all these concerned people were not alert on their duties. Consequently the purse was stolen. This certainly indicates that the Railway authority (Opposite Party) is deficient in providing its service i.e. to take the passenger to his destination with belongings safely.
16) The Opposite Party in its written statement has raised the question of jurisdiction of this Forum as the theft has taken place before Ratlam and not in Mumbai. The cause of action has partly arisen in Mumbai as the tickets were obtained in the jurisdiction of South Mumbai. On these tickets the Complainants travelled from Delhi to Mumbai. The office of the Opposite Party is situated at South Mumbai. Therefore, as per Sec.11 of the Consumer Protection Act, 1986, this Forum has the jurisdiction to entertain this complaint.
17) It is further averred by the Opposite Party that it is governed by the Railway Act. In this connection, as per Sec.3 of the Consumer Protection Act, 1986, the provisions of CPA, 1986 are in addition to and not in derogation of the other provisions of law. Therefore, the point raised by the Opposite Party is not a valid point.
18) The Opposite Party has also raised a point of misjoinder of parties as the IRCTC, RPF are not made the parties to this complaint. This is certainly absurd. These agencies are working under the Indian Railways to help the Railway Administration smoothly. To a consumer like Complainants, these authorities are doing the duties of the Railway Authority i.e. Opposite Party. Therefore, all these objections does not hold water. Therefore, all the objections raised by the Opposite Party have no merits whatsoever. On the contrary when the passenger is having a valid ticket for travelling in a reserved A/c Coach of the Opposite Party, it is its contractual as well as legal liability to take him safely to his destination and if in the mean time, he is deprived of his belongings/property by miscreants like robberers and thieves, the Opposite Party is certainly liable for the deficiency in service. Therefore, we pass the following order -
O R D E R
i. Complaint No.113/2009 is partly allowed.
ii The Opposite Party is directed to pay Rs.48,000/- (Rs. Forty Eight Thousand Only) to the Complainants with
interest @ 9% p.a. from 09/12/2007 till its payment.
iii.Opposite Party is also directed to pay Rs.3,000/- (Rs. Three Thousand Only) to the Complainants towards the
mental agony & inconvenience caused to the Complainants because of the deficiency in service on the part of
Opposite Party.
iv.Opposite Party is also directed to comply with the above order within 30 days from the receipt of this order.
v.Certified copies of this order be furnished to the parties.
