Dt. 20.02.15

JAGANNATH BAG , MEMBER

       The present appeal is directed against the Order dated 23.03.14 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit –II in CC No. 150 of 2013, whereby the complaint was allowed on contest with compensation and costs.

          The complaint case, in brief, was as follows:

          The Complainant along with his wife and infant daughter travelled by 13009-UP Howrah-Dehradun Express from Burdwan Station on 14.12.2012 in 3A Coach, having ticket number 44608049. They boarded the train at about 10.30 p.m .  They had with them 2 big size red colour suitcases (locked)- one of Aristocrat company and the other of Alpha company, one Gent’s black colour hand bag and another Lady’s red colour hand bag ( unlocked) . The two big suitcases were kept below the lower berth where the Complainant remained asleep. On 15.12.2012 at around 4.55a.m. , when the train arrived at Gaya Station it was  found that the suitcases were missing. The Complainant got down from the train in search of the missing suitcases, but having failed to find the same , came back to his compartment and narrated the incident to the TTE in-Charge. His presumption was that the incident of theft took place between 10.40 p.m and 12.40 hours when the train was running through the jurisdiction of Eastern Railway. He lodged a complaint and submitted an FIR addressed to the Officer-in-Charge , GRP , Mughalsarai as suggested by the TTE, named,  Sri Neeraj Kumar . The useful items which were required for their journey included dresses , utensils , camera , baby food, warm clothes and  medicines apart from liquid cash were kept in the suitcases. After lodging of FIR with the Railway Police he waited for a response/compensation  from them but in vain. He sent an application by Registered Post to the General Manager , Eastern Railway, and  the  Divisional Railway Manager , Howrah Division,  Eastern Railway on 06.02.2013 praying for adequate compensation. He received a letter on 19.02.2013 from S. Balasubramanian, ASC /HQ and PS (I/C) by which he was requested to make further correspondence with the competent authority of E.C. Railway. He wrote to General Manager, E.C. Railway and Chief Security Commissioner E.C. Railway on 28.02.2013 but there was no favourable response from them . In the said situation a consumer complaint was lodged before the Ld. Forum below for direction upon the OPs  to pay compensation to the tune of Rs. 31,345/- against the loss of  cash money and goods and also to pay a sum of Rs. 50,000/- as compensation against mental agony and harassment caused by the negligent and irresponsible services and conduct of the employees of the OP Railways.

          The complaint has been contested by filing of W.V wherein it was contended, inter alia , that the missing of luggages took place within the jurisdiction of E.C. Railway which was beyond the territorial jurisdiction of Kolkata  District Forum Unit-II. Further, it was asserted that the 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, in case of luggage which is carried by the passenger in his charge, unless it is proved that the loss, destruction or deterioration was due to the negligence or misconduct on its part or on the part of any of its servants, Railways is not liable and the complaint is not maintainable and the same shall be dismissed. 

          Ld. Forum below after having heard both parties and upon perusal of the material facts on record allowed the complaint on contest with a cost of Rs. 10,000/- and directed OPs to pay jointly and severally compensation of Rs.50,000/- to the Complainant within a period of one month from the date of order, failing which for each day’s delay OP Railway authority shall have to pay punitive damage @ Rs. 200/- per day till full implementation.

          Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the Appellants have come up before this Commission with a prayer for direction to set aside the impugned order.

          Ld. Advocate appearing for the Appellant submitted that Ld. Forum below failed to appreciate that the Complainant could not prove his allegations with proper evidence. The luggages which are reported to have gone missing were not booked against any receipt issued  by Railway staff. The suitcases  were not even secured by fixing with the seats / berth as a minimum  safety device. The luggages were neither entrusted nor notified to the Railway authority or the conductor /guard or the coach attendant before or during the journey by the Complainant . The Complainant also did not quantify the loss by putting forward any documentary proof and Ld. Forum wrongly allowed compensation without assessing the actual loss item wise. There being no deficiency in service on the part of the OP Railways, question of giving any compensation does not arise. Ld. Advocate also referred to decisions of the Hon’ble Supreme Court in RP No. 18/2008 dated 17.07.2012 in RA No. 104/2012 and also referred to the decision of this Commission in SC Case No. FA/653/2010 dated 13/11/2010. 

           It has been argued on behalf of the Respondent/ Complainant that the theft of the luggages as reported in the complaint took place while the train was running within the jurisdiction of Eastern Railway.  It was taken for certain that journey by AC coach was more safe and the Railway staff would be doing their duty in providing proper safety and security. The monetary loss suffered by the Complainant was much more than what was reported. The OP Railways ignored the claim of the Complainant  but Ld. Forum below rightly observed that as per the provision of the Railway Act, luggage may be either carried by the passenger in his charge or entrusted to the Railway authority to avail carriage but nature of responsibility shall be same in respect of both the cases.

                                    Decision with reasons

          We have gone through the memorandum of appeal together with copies of the impugned judgment and other documents including the evidence on affidavit by the Complainant , copy of the FIR lodged before the Officer-in-charge , Mughal Sarai , GRP Force, suggestion recorded in the Suggestion-cum-Complaint book ,  copy of journey-cum-reservation ticket , list of stolen articles and correspondences made with the General Manager, Eastern Railway , the Divisional Railway Manager , Eastern Railway etc. 

          There is no dispute that the Complainant and two other members of his family availed themselves of 13009-UP Howrah-Dehradum Express on 14.12.2012 and their journey started from Burdwan Station . Two big size suitcases containing important items of an estimated value of Rs.21,345/- plus cash Rs. 10,000/-  were stolen at some intermediate point between Burdwan and Gaya Station. The Complainant did not know for certain exactly where the suitcases went missing. In his written suggestion dated 15.12.12 in the suggestion-cum-complaint book, he recorded his suspicion that the passengers who deported at Gaya might have been involved in the matter. Whether it was at or about Gaya Station that the suit cases went missing could not be confirmed by by the Complainant in any manner.

          The defence of the OP / Railway authority is that as per Section 100 of the Railway Act , 1989 they had no responsibility of any luggage when the passenger chose  to keep his luggage under his own charge.

 Ld. Forum below observed that the Complainant purchased AC Sleeper Coach ticket and it was expected that the journey would be safe but the Railway Staff  i.e., AC Coach Conductor and TTE, though bound to give safety , failed to provide such safety at night and accordingly, the Railway authority is responsible. Further, it was observed that as per Section 100 of the Railway Act, luggages need not necessarily be booked by the passenger having valid passenger ticket. The luggage may either be carried by the passenger in his charge or entrusted to the Railway authority to avail carriage. It is also observed by the Ld. Forum below that TTE and coach conductor were on duty to prevent entry of any intruders or unauthorized persons. It is , however, not an established fact that any intruder or any unauthorized person entered into the compartment where the Complainant and his co passengers were accommodated . Further, the Complainant admittedly was asleep from the beginning of his journey till he woke up at about 4.50 a.m. So , it was not possible for him to keep any watch on his luggage . In fact, the suitcases not being given under care or charge of any Railway staff , were left as they were i.e., unguarded and uncared . It was too much to except from a Railway staff to identify any passenger taking away any particular luggage from within the Railway compartment if  such Railway staff is not particularly entrusted with any responsibility. It can be adversely inferred that while the train stopped at some station  some one, who may be a co-passenger  or not, might have managed to lift the suitcases. It is also not prudent  to expect that the TTE in-Charge or conductor or coach attendant would  interrogate a passenger as to whether he is leaving with his own luggage or that of others. In the present case , it appears that there was some negligence on the part of the Complainant himself who took no care tokeep the suitcases secured by tying the same  with strong chain or by entrusting the luggage to the Railway staff to be sure that he could carry his luggage under the care of some responsible person . It is rather not proved that the Railway authority was responsible for the loss of the suitcases from some unidentified place. In that view of the fact, we are constrained to hold that the impugned order suffers from material irregularity and jurisdictional error. The appeal has sufficient merit and as a result, succeeds. Hence,

                                           Ordered

that the appeal be and the same is allowed on contest . The impugned order is set aside. The complaint stands dismissed. There shall be no order as to costs.