JUSTICE SUDIP AHLUWALIA, MEMBER

         This Revision Petition has been filed by the Petitioners/ Opposite Parties against Respondent / Complainant challenging the impugned Order dated 14.09.2017 passed by the State Consumer Disputes Redressal Commission, Bihar, Patna, in Appeal bearing No. 390 of 2015.  Vide such Order, the State Commission had dismissed the Appeal while upholding the Order dated 10.11.2015 passed by the District Consumer Disputes Redressal Forum, Buxar, in Complaint Case No. 81/2014.

2.      The brief facts of the case are that the Complainant was travelling on 01.08.2014 in the Train No. 12149, ‘Pune-Patna Express’ from Allahabad Junction to Buxar Station in A.C.–III category with her son, daughter-in-law and grandchildren. The Complainant was travelling with her family members with valid tickets bearing seat Nos. 3, 4 and 5 in Coach B-2 having PNR No. 812-6466923. The Complainant had paid a sum of Rs.1,380/- for the said tickets wherein the security fees was Rs.120/-. It was the case of the Complainant that the nearest seat to the seat of the Complainant i.e., Seat no. 6, was unauthorisedly allotted by the TTI to a person before Mughalsarai, who was staring at the brown colour purse of the Complainant and the Complainant reported the same to Opposite Party No. 4 (Petitioner No.4 herein). It was submitted that the Complainant’s bag was there before Mughalsarai till the starting of the train however, Complainant’s granddaughter started crying after starting of the train due to which Complainant’s son and daughter-in-law’s attention shifted to her. It was further stated that the Complainant noticed at the Gahmer Station that her bag was missing and the unauthorised person seated on seat No.6 had also disappeared. The Complainant immediately informed the TTI about the same. It was also stated that the bag contained a sum Rs.22,000/-, Gold set costing Rs.3,00,000/-, Pan Card, Mobile, Voter I.D. Card, Staff I.D., Back paper, Educational Certificate and Reservation Ticket. It was averred by the Complainant that the Railways collect Security Fees for secure and happy journey of the passengers till their destination and the Complainant had to bear physical, financial, and mental harassment to the tune of Rs. 9,00,000/- along with litigation expenses of Rs. 10,000/- due the negligence and deficiency in service of the then TTI/ Coach Attendant. It was further stated that the Complainant had informed about the above said incident to the Station Officer, Train Police Station, Buxar on 02.08.2014. The Complainant further served a Legal Notice on all the Opposite Parties on 22.08.2014. However, no action was taken by the Railways. Hence, the Complaint was filed before the Ld. District Forum being aggrieved by such acts of the Opposite Parties and alleged deficiency in service on their part, seeking payment of Rs.9,90,000/- and litigation expenses of Rs.10,000/-.            

3.      The Opposite Parties appeared before the District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on their part. It was contended by the Opposite Parties that the provision to realise Safety Charge from the passengers is only to promote safe travelling of the passengers on Railways and such safety surcharge is not realised for the passengers’ luggage and the concerned passengers have to look after their luggage personally. Further, reliance was placed on Section 100 of Indian Railways Act and Rule 506.2 of The Coaching Tariff Act. It was also contended that the value of the alleged purse was only known to the Complainant or her family, and they should have protected and looked after the alleged purse personally. It was further averred that all the allegations were one sided and there was no witness who saw the alleged incident. It was further the case of the Opposite Parties that on berth No.6, one Pushpa Sharma was travelling from Pune to Khandwa railway station who left the train at Khandwa and further the said berth was not allotted to anyone. It was also submitted that prior to Mughalsarai station, the said berth was vacant and after arrival of the train at Mughalsarai, the crew (staff) had been changed as per rules, and further from Mughalsarai to Patna Jn. TTE/ Dy. CIT, Shamsad Ahmad, had taken over the charge who had checked the coach just after departure of the train from Mughalsarai and had found the said berth No. 6 had not been allotted to anyone, and nobody was travelling on berth No.6. It was further contended that nobody had lodged any complaint in writing or orally regarding the alleged theft to the Opposite Party No. 4, or the train escort party. It was also averred that the articles in the purse were known to the Complainant or her family members and not the Opposite Parties and neither the Complainant herself nor her family members have declared the value and kinds of articles kept earlier in the purse before the Railway Administration, and that they had also not deposited the surcharge as per The Coaching Tariff Act. Therefore, the Opposite Parties prayed for dismissal of the complaint with costs.

4.      The Ld. District Forum vide its Order dated 10.11.2015 allowed the Complaint and observed inter alia:-

“14. Thus, on the basis of the evidence and materials available on record, argument of both sides, decision of the Hon commission cited by the complainant and factual position highlighted above the complaint is fit to be allowed.

Now, adverting to the price of the articles contained in the purse of the complainant. The complainant has not filed any document showing the price of the ornaments etc. Purse containing Rs.22,000, Voter ID card, Pan Card, Cheque and passbook etc, if Rs.1,00,000 is awarded for the indemnification of the loss of the said article of the complainant it will meet the ends of justice.

Accordingly, complaint stands allowed on contest and opposite parties are directed to pay Rs.1,00,000 in lum-sum towards compensation, within 45 days from the date of the order failing which the opposite party shall have to pay the entire amount with 8% interest per annum till the date of realisation.”

5.      Aggrieved by the above Order, Appeal bearing No. 390 of 2015 was filed by Appellants/ Opposite Parties No. 2 and 3 against the Respondent/ Complainant before the State Consumer Disputes Redressal Commission, Bihar, Patna.

6.      The Ld. State Commission vide impugned order dated 14.09.2017 dismissed the Appeal while upholding the order of Ld.  District Forum and observed inter alia-

“5. Admittedly, the occurrence of incident of loss of bag cum purse containing some documents, articles and cash of the complainant happened during the said train journey on 01.08.14 is not in dispute, the appellants responsible for the safety of the passengers travelling during course of journey and failure to that amounts deficiency in service, under the circumstances, we are of the opinion that the District Forum rightly held the appellants liable to pay compensation amount to complainant for not been able to maintain the journey safe as promised by taking extra charges for the same. Therefore, in view of the above impugned order cannot said to be faulted and accordingly we are not inclined to interfere with the same.

6. In result, the order of the District Forum is affirmed. The appeal stands dismissed.”

7.      Hence, the present Revision Petition has been filed by the Petitioners/ Opposite Parties against the above-mentioned impugned order of the Ld. State Commission on the grounds that-

1. The impugned order is erroneous, illegal, unsustainable, suffers from basic infirmity and is liable to be set aside;
2. The Hon’ble Fora below failed to appreciate that the Complainant-Respondent failed to attribute any negligence on the part of the Petitioners;
3. Both the Hon’ble Fora below failed to appreciate that the entire case is cooked up and afterthought for illegal gain from Railways, which is evident from the contrary version given in the FIR and the complaint;
4. From perusal of the Report lodged before the SHO, GRP, Buxar, on 02.08.2014, it is evident that the Respondent has nowhere stated that any unauthorized passenger was travelling in the train; she did not state that door of the AC Coach was not closed; she did not state that she raised any alarm when she did not find her purse; she did not allege that she had requested the TTE for complaint book for lodging complaint which was not provided to her; she did not allege that the TTE/Coach Attendant was not present there in the said coach and they did not cooperate her, which clearly shows the entire story is an afterthought and cooked up;
5. The incident occurred in the train however, the Respondent did not make any written complaint to the TTE and she finally lodged an FIR when she finally de-boarded the train at Buxar;
6. The Respondent made general and omnibus allegation in the FIR on each and every person who was present in the coach including the vendor, hence, the Hon’ble Fora should not have proceeded with the matter;
7. The Respondent did not disclose at what time and near which station her purse was stolen, she has very casually stated that when the train arrived at Gamhar Station then she noticed that her purse was missing. When the Complainant noticed some passenger was gazing at her purse, the Complainant should have taken extra precaution in keeping her purse which contained jewellery worth Rs.3,00,000/-, this shows contributory negligence on the part of the Respondent;
8. The Respondent should have been more vigilant in taking care of the purse;
9. Reliance has been placed on ‘Union of India & Ors. v. Rama Shanker Misra & Anr.’ IV (2015) CPJ 653 (NC), Section 100 of the Railways Act, 1989, Rule 146 of the Coaching tariff No. 24 Part-1 Vol.1, Rule 506.2 of the Indian Railway Conference Association Coaching Tariff  No.25 (Part 1) (Vol.1) under Chapter V under the heading ‘Luggage’;
10. Allegation of purse and its contents have not been proved so much so that no evidence has been adduced even to prove that the Respondent had brought the said purse in the compartment;
11. Besides cash and jewellery, the Respondent also alleged loss of various documents, however, the Respondent failed to file any evidence to show that she informed the concerned Authorities for loss of such documents or issue of fresh documents. The Respondent also failed to present any chit of paper with regard to price and purchase of jewellery and it was also not stated that for what purpose she was carrying the expensive ornaments;
12. Neither Respondent’s son nor daughter-in-law filed any affidavit with regard to alleged theft; hence, the version of the Respondent cannot be relied upon;
13. The Hon’ble Fora below has not given any cogent reason for awarding compensation of Rs.1.00 Lac to the Respondent;

n. The Respondent herself was negligent is not taking care of her      belongings when the train arrived at Gamhar Railway Station. The Respondent herself should have been more vigilant in taking care of her belongings.

o.  The Hon’ble Fora below failed to appreciate that enquiry of any complaint of theft and adjudication thereof is outside the scope of the Consumer Protection Act, 1986;

p. The Ld. Forum failed to appreciate that by selling ticket or making reservation of seat or berth, the railway does not undertake the responsibility of security of the personal luggage/ belongings of any passenger which the passenger takes with him/her and keeps it with themselves without being booked;

q. The Safety charge is realised from the passenger only to promote safe travelling of passengers and such safety surcharge is not realised for passengers’ luggage;

r.  When the Department enquired from the TTE concerned of the alleged occurrence, he submitted his written report stating that that he was on duty in the aforesaid coach from Mughalsarai to Patna and berth no.6 was vacant from Khandawa, no one was allotted on the said berth. Respondent wrongly alleged that the said berth was allotted earlier before Mughalsarai but no passenger was travelling in the said berth nor any passenger made any complaint with regard to it. If any passenger is allotted any berth, it is entered in the Working Chart of the TTE and no name registered against berth no.6. If any luggage would have been misplaced, the same would have been in his knowledge but there was no complaint registered with regard to theft. Hence, it seems that no theft took place;

s.  Berth No. 6 was allotted to Pushpa Sharma who was travelling from Pune to Khandwa who left the train at Khandwa and thereafter the said berth was not allotted to anyone. In support of the said contention, Petitioner had filed reservation chart of the said coach;

t.  The purse was in the custody of the Respondent and it was neither booked separately nor handed over to the Railways to take charge of the security as per law.     

8.      In addition to the above, the Petitioners have also placed reliance on clause 1101 of Chapter XI of the Commercial Manual of the Railways.

9.      It has been argued by the Respondent Complainant there is a delay of 117 days in filing the present revision without any reasonable explanation and hence revision should be dismissed. It was further argued that if someone unauthorised enters into a reserved bogy and TTE does not take any action then the Railway authority is responsible to pay the cost of stolen article. Hence, order of State Commission and District forum is legal and genuine and as per law. Also, reliance has been placed on various judgements.

10.    There is a delay of 117 days in filing the present Petition. As per order dated 23.04.2019, no application for condonation of delay is filed. Interim Application bearing no. 7286/2018 for stay is pending. 

11.    Heard the Ld. Counsel for the Petitioner, Respondent and party in person.  Perused the material available on record.

12.    As already noted in Para No. 10 above the present Revision was filed after a delay of 117 days, and no application for condonation of such delay was filed, which facts were duly taken note of by the Hon’ble Member hearing the matter on 23.4.2019.  The Order passed on that date also clearly goes to show that delay in filing of the Revision Petition was not condoned, and only notice was ordered to be issued to the Respondent, dehors the outcome of the Revision Petition.  So, at the very outset, the Revision Petition is liable to be dismissed as being barred by limitation.

13.    Even otherwise on merits, this Commission finds no reasons to interfere with the concurrent decisions of both the lower Fora below since it is the settled law that immunity of the Railways under Section 100 of the Railways Act is of no consequence in the event of actual negligence and deficiency in service.  In the present case, it was the categorical claim of the Complainant that an unauthorised person was allotted the vacant berth No. 6 in the concerned compartment from Mughalsarai Railway Station onwards, and that the Complainant had every reason to suspect that he had stolen away her bag in question.  The specific averment of the Complainant in this regard was as follows-

“5.       That nearest to the seat allotted to the Complainant, Seat No. 6 was unauthorisedly allotted by the TTI to a person before Mughalsarai, who was staring at the brown colour purse of the Complainant again and again.  The Complainant also complained to the Opposite Party No. 4 about this.”

14.    It is to be noted that the above averment of the complainant was necessarily on Affidavit, which in the routine course would have been reiterated by the Complainant in her Evidence by way of Affidavit, copies of which have however not been filed on behalf of the Petitioner.  From its side, the Petitioners have relied upon the report of the concerned TTE, Mr. Shamshad Ahmad, to the Assistant Commercial Manager, East Mid Railways, Danapur, which is on record at page 58 of the Paper Book but is otherwise undated.  Such report which is in the form of Inter-Departmental correspondence is certainly not submitted by the concerned TTE on Affidavit, but otherwise had mentioned therein that he did not allot the vacant berth No. 6 to any unauthorised person.  It is the settled law that the statement made on oath stands at a much higher pedestal than a plain narration of facts. 

15.    But, what is significant here is that even such Report was submitted by Mr. Shamshad Ahmad, after he had boarded the train from Mughalsarai station onwards when it was the specific case of the Complainant, that the vacant berth No. 6 had been unauthorisedly allotted by the TTI to a person before the train had reached Mughalsarai, and that the said person as well as the Complainant’s bag had gone missing by the time the train started from Mughalsarai for its further onward journey.  By the  own case of the Petitioners/Opposite Parties, the crew/staff had been changed as per Rules at Mughalsarai onwards and the TTE/Dy. CIT, Shamsad Ahmad, had taken over the charge from Mughalsarai onwards.  So his Report that he had not allotted the vacant berth/seat No. 6 to any person becomes inconsequential, since the person who had been unauthorisedly given the said vacant seat/berth at Mughalsarai by the previous TTI had already disappeared before Shamshad Ahmad took the charge.  Both the Ld. Fora below were, therefore, rightly convinced about the greater reliability of the Complainant’s claim in these circumstances.

16.    This Commission, therefore, also finds no reasons to interfere with the concurrent decisions of both the Ld. Fora below.  The Revision Petition is, therefore, dismissed.  Parties to bear their own costs.

17.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.