Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that on 05.02.2019, the Complainant booked Railway Ticket from Ara (Bihar) to Ludhiana (Punjab) for 09.03.2019 of Train No. 13005 (Amritsar Mail), having PNR No. 6625266601, Seat No. 9, Coach No. 83 AC3, (Scheduled Arrival time 10-Mar-2019 05.34 at Ludhiana JN) and paid Rs.1390/- and hence, the complainant is covered under the definition of ‘Consumer’ under the Consumer Protection Act, 2019, whereas the Opposite Parties are service providers to the complainant as such the relationship of the consumer with the Opposite Parties exists. Further alleges, that as per the reservation, the Complainant boarded the requisite train alongwith luggage with her which was properly chained and due precautiosn were taken over by the Complainant during journey. Therefore, it is the duty casts on the railway authority to provide proper security. But unfortunately, during the night time at about 12.03 AM, (10.03.2019) when the Complainant was slept over, someone has stolen the luggage/ bag containing the gold ornaments, by cutting the bag, in which the gold ornaments i.e. four bangles, two rings, one Mangal Sutra, one Jhumka Set, one Gold chain, one hand lathi (mentioning the name of Rani Prabhu on it). When the Complainant has come to know this incident, the train reached at Ambala at about 3 AM (10.03.2019), the total price of the stolen ornaments is worth Rs.9,13,500/- at present. In this regard, the Complainant also lodged FIR No. 67 with SHO, GRP, Ambala Cantt. The Complainant suspected that a person traveling next to her opposite berth and the travelers upper to lower birth, the bag containing the jewellery stolen after attempt of torn of bag from inside the bag. B3, 12, B3 10 travelers are suspected to have made this attempt. The Complainant immediately searched for coach attendant, but neither coach attendant nor any guard was available there, even no TT or care taker of the coach was available there. It is submitted that it is the duty of the coach attendants to keep the doors of train closed during its running and to remain vigilant particularly at night, but employees of Opposite Parties did not perform their duty rightly and were negligent during working hours. The Complainant made several requests to the Opposite Parties to make good her loss as it was occurred due to the deficiency in service in not providing the security during the journey but to no affect. All this act of the Opposite Parties has caused great loss and mental agony to the Complainant, which amounts to deficiency in service and trade mal practice on the part of the Opposite Parties. Moreover, as regards the issue of deficiency in service and negligence of Railways Administration, a list of duties prescribed by Railway Administration “TTE for Sleeper Coaches” is brought on record. Of these, duties prescribed at Sl No. 4, 14, 16 and 17 are very relevant. Further alleges that the above duties clearly show that there is a responsibility cast on the TTE attached to the second class sleeper coach to be very vigilant about anyone other than the reserved tickets holders entering the compartment, to such an extent that he is required to prevent even a relation of the passenger holding a platform ticket who comes to see off a passenger from entering a coach. The TTE is particularly required to take special care in the night as brought out in Sl No. 16 and 17 Sl No.14 clearly casts a responsibility on him to ensure that the doors of the coach are kept latched when the train is on the move. Admittedly,the TTE has failed in the performance of his duties which lead to the incident of theft. Further submitted that the Complainant has purchased the reserved ticket by spending hefty amount, so that she as well as her luggage may remain safe during journey. The price difference between the unreserved ticket and a reserved ticket is quite high and the travelling public who buy a reserved ticket would expect that they can enjoy the train journey with a certain minimum amount of security and safety. Hon’ble National Commission held in citation ( I ) 2003 CPJ 72 in case titled as Union of India & ors Vs Sanjiv Dilsukhrai Dave & Anr that Consumer Protection Act, 1986 – Section 21 (b) – Railways – Luggage stolen from reserved compartment in night – Railway Administration responsible to prevent unauthorized entry – Basic safety and security precautions not taken by staff – Complainant entitled to compensation. On it, complainant put reliance on citation 2004 (3) RCR (C) page 140 titled as Sumantidevi M Dhanwatay Vs Union of India and Ors wherein our Hon’ble Apex Court held that Railway Act, 1989, Section 12A-Consumer Protection Act, 1986, Section 3 – Railways Act, passenger – Assault and snatching valuables of passengers by unauthorized passengers – Amounts to negligence and deficiency in service of Railways- Passengers are entitled to adequate security and safety - Railways cannot escape its liability from compensating such loss to the passengers – Consumer Act is not in derogation of any other law. It is further submitted that the Railway Department has failed to prevent such unauthorized person to enter the reserved compartment and hence, there is deficiency in service and negligence on the part of Opposite Parties in not providing requisite safety and security to reserved compartments. In the absence of any objection as to jurisdictional bar, Fora can entertain and decide complaints of railway’s passengers on deficiency of service of railways. In this regard, the Complainant further placed reliance on citation 2015 (4) CPJ page 20 titled as Chief General Manager, South Eastern Central Railway Vs Smt Mamta Aggarwal wherein Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission decided on 05.12.2014, held that Consumer Protection Act, 1986 Sections 2(1) (g), 14 (1) (d) and 15 Railways – Theft of suitcase- FIR lodged – Negligence and deficiency in service of railway officials – complaint allowed. The complainant further contended that the Complainant through her husband made so many requests and also representations through e-mail to the Opposite Parties on 19.03.2019, 03.04.2019, 07.05.2019, 07.06.2019, 09.06.2019, 04.07.2019 and thereafter as per the requirement, the Complainant also submitted the requisite documents i.e. detail of the stolen ornaments alongwith its bills and photograph, but the Complainant got no response from the Opposite Parties. In this regard, the complainant made requests to the Opposite Parties to make good the loss of the Complainant, but the Opposite Parties kept mum to the requests of the Complainant and failed to redress the grievance of the Complainant and at last refused to admit the rightful claim of the Complainant and hence, it is clear cut deficiency in service and unfair trade practice. The aforesaid act of the opposite parties is illegal, unwarranted and uncalled for. Though the loss suffered by the complainant can not be compensated in the shape of money, but still the complainant is entitled to compensation for love and affection as well as sentiments in respect of the Mangal Sutra as well as other gold ornaments i.e. ishtri dhan which are purchased by the Complainant after her regular savings. The Complainant being as Indian cultural lady has special love and affection with gold ornaments and in this way, the religious sentiments of the Complainant have been disturbed due to the negligence and illegal acts of the officials of the Railway Authorities and for that the Complainant is entitled to compensation for causing her mental tension and harassment amounting to Rs. 6,00,000/-. Besides this, the Complainant is also entitled for the compensation on account of litigation amounting to Rs.50,000/- which is caused due to the unwarranted and illegal acts of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
- The Opposite Parties may be directed to refund the price of the stolen gold ornaments amounting to Rs. 9,13,500/- alongwith interest @ 12% per annum from the date of its loss, till its realization.
- The amount of Rs.6,00,000/- may also be allowed to the Complainant to be paid by the opposite parties on account of compensation due to mental tension and harassment and due to business loss caused by the complainant.
- The cost of complaint amounting to Rs.50,000/- may please be allowed.
- And any other relief to which this Hon’ble Consumer Disputes Redressal Commission, Moga deem fit may please be granted to the Complainant, in the interest of justice and equity.
2. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that complaint is not maintainable; that the complainant is estopped by her own act and conduct to file the present complaint and there is no deficiency in service on the part of the Opposite Parties. The Opposite Parties shall not be responsible for the loss of unbooked luggage as per section 100 of The Railways Act, 1989. Further the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Parties. In fact, no incident of theft occurred on intervening night of 09/10.03.2019 in train No.13005 as alleged in the complaint. Sh.Ashok Kumar Shukla, Chief Inspector Ticket/MB was deputed by the Opposite Parties as coach conductor in coach No.B1, B2 and B3 on 09/10.03.2019 (9.50 PM to 5:30 AM) and said inspector checked the tickets of al the passengers in the coach referred above and fulfilled all his duties responsibly. He was regularly patrolling in coaches B1,B2 and B3 to ensure that the end doors of the coaches were kept locked to prevent outsiders/ unauthorised person entering the coach and during his duty hours, no alleged incident of theft was reported either to Chief Inspector Ticket or to Coach attendant/ guards by the complainant. As per the FIR , it has been transpired that the complainant was accusing co-passengers for the theft which rules out the possibility of any miscreants and unauthorized persons entering the coach B3 on the intervening night of the incident and in this way, the complainant herself was negligent in taking proper care of her luggage during the journey and as such, there is no deficiency in service on the part of the Opposite Parties. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections. Hence, the complaint of the complainant is liable to be dismissed.
3. In order to prove her case, the complainant has tendered into evidence her affidavit Ex.C1, copy of detail of summary of all jewellery stolen Ex.C3, copy of suggestions portal and SMS, WEB complaints Ex.C4, copy of the retail invoice of the gold Ex.C5 to Ex.C7, photographs of lost jewellery Ex.C8, copy of e-mail Ex.C9, copy of FIR Ex.C10, copies of photographs Ex.C11 to Ex.C16, copy of e-mail sent by the complainant Ex.C17 and closed the evidence on behalf of the complainant.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit of Sh.Naresh Singh Ex.Ops1, affidavit of Ashok Kumar Shukla Ex.Ops2, affidavit of S.K.Bhatnagar Ex.OP3, affidavit of Sattar Ahmad Ex.Ops4, affidavit of Saudan Singh Ex.Ops5, alongwith copy of document Ex.Ops6 and and closed the evidence.
5. We have heard the ld.counsel for the parties, perused the written submissions of the Opposite Parties and also gone through the documents placed on record.
6. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that on 05.02.2019, the Complainant booked Railway Ticket from Ara (Bihar) to Ludhiana (Punjab) for 09.03.2019 of Train No. 13005 (Amritsar Mail), having PNR No. 6625266601, Seat No. 9, Coach No. 83 AC3, (Scheduled Arrival time 10-Mar-2019 05.34 at Ludhiana JN) and paid Rs.1390/- and hence, the complainant is covered under the definition of ‘Consumer’ under the Consumer Protection Act, 2019, whereas the Opposite Parties are service providers to the complainant as such the relationship of the consumer with the Opposite Parties exists. Further alleges, that as per the reservation, the Complainant boarded the requisite train alongwith luggage with her which was properly chained and due precautiosn were taken over by the Complainant during journey. Therefore, it is the duty casts on the railway authority to provide proper security. But unfortunately, during the night time at about 12.03 AM, (10.03.2019) when the Complainant was slept over, someone has stolen the luggage/ bag containing the gold ornaments, by cutting the bag, in which the gold ornaments i.e. four bangles, two rings, one Mangal Sutra, one Jhumka Set, one Gold chain, one hand lathi (mentioning the name of Rani Prabhu on it). When the Complainant has come to know this incident, the train reached at Ambala at about 3 AM (10.03.2019), the total price of the stolen ornaments is worth Rs.9,13,500/- at present. In this regard, the Complainant also lodged FIR No. 67 with SHO, GRP, Ambala Cantt. The Complainant suspected that a person traveling next to her opposite berth and the travelers upper to lower birth, the bag containing the jewellery stolen after attempt of torn of bag from inside the bag. B3, 12, B3 10 travelers are suspected to have made this attempt. The Complainant immediately searched for coach attendant, but neither coach attendant nor any guard was available there, even no TT or care taker of the coach was available there. It is submitted that it is the duty of the coach attendants to keep the doors of train closed during its running and to remain vigilant particularly at night, but employees of Opposite Parties did not perform their duty rightly and were negligent during working hours. The Complainant made several requests to the Opposite Parties to make good her loss as it was occurred due to the deficiency in service in not providing the security during the journey but to no affect. All this act of the Opposite Parties has caused great loss and mental agony to the Complainant, which amounts to deficiency in service and trade mal practice on the part of the Opposite Parties. Moreover, as regards the issue of deficiency in service and negligence of Railways Administration, a list of duties prescribed by Railway Administration “TTE for Sleeper Coaches” is brought on record. Further contended that the above duties clearly show that there is a responsibility cast on the TTE attached to the second class sleeper coach to be very vigilant about anyone other than the reserved tickets holders entering the compartment, to such an extent that he is required to prevent even a relation of the passenger holding a platform ticket who comes to see off a passenger from entering a coach. The TTE is particularly required to take special care in the night as brought out in Sl No. 16 and 17 Sl No.14 clearly casts a responsibility on him to ensure that the doors of the coach are kept latched when the train is on the move. Admittedly, the TTE has failed in the performance of his duties which lead to the incident of theft. Further submitted that the Complainant has purchased the reserved ticket by spending hefty amount, so that she as well as her luggage may remain safe during journey. The price difference between the unreserved ticket and a reserved ticket is quite high and the traveling public who buy a reserved ticket would expect that they can enjoy the train journey with a certain minimum amount of security and safety. Hon’ble National Commission held in citation ( I ) 2003 CPJ 72 in case titled as Union of India & ors Vs Sanjiv Dilsukhrai Dave & Anr that Consumer Protection Act, 1986 – Section 21 (b) – Railways – Luggage stolen from reserved compartment in night – Railway Administration responsible to prevent unauthorized entry – Basic safety and security precautions not taken by staff – Complainant entitled to compensation. On it, complainant put reliance on citation 2004 (3) RCR (C) page 140 titled as Sumantidevi M Dhanwatay Vs Union of India and Ors wherein our Hon’ble Apex Court held that Railway Act, 1989, Section 12A-Consumer Protection Act, 1986, Section 3 – Railways Act, passenger – Assault and snatching valuables of passengers by unauthorized passengers – Amounts to negligence and deficiency in service of Railways- Passengers are entitled to adequate security and safety - Railways cannot escape its liability from compensating such loss to the passengers – Consumer Act is not in derogation of any other law. It is further submitted that the Railway Department has failed to prevent such unauthorized person to enter the reserved compartment and hence, there is deficiency in service and negligence on the part of Opposite Parties in not providing requisite safety and security to reserved compartments. In the absence of any objection as to jurisdictional bar, Fora (now Commission) can entertain and decide complaints of railway’s passengers on deficiency of service of railways. In this regard, the Complainant further placed reliance on citation 2015 (4) CPJ page 20 titled as Chief General Manager, South Eastern Central Railway Vs Smt Mamta Aggarwal wherein Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission decided on 05.12.2014, held that Consumer Protection Act, 1986 Sections 2(1) (g), 14 (1) (d) and 15 Railways – Theft of suitcase- FIR lodged – Negligence and deficiency in service of railway officials – complaint allowed. The complainant further contended that the Complainant through her husband made so many requests and also representations through e-mail to the Opposite Parties on 19.03.2019, 03.04.2019, 07.05.2019, 07.06.2019, 09.06.2019, 04.07.2019 and thereafter as per the requirement, the Complainant also submitted the requisite documents i.e. detail of the stolen ornaments alongwith its bills and photograph, but the Complainant got no response from the Opposite Parties. In this regard, the complainant made requests to the Opposite Parties to make good the loss of the Complainant, but the Opposite Parties kept mum to the requests of the Complainant and failed to redress the grievance of the Complainant and at last refused to admit the rightful claim of the Complainant and hence, it is clear cut deficiency in service and unfair trade practice.
7. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that first of all, the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this Hon’ble District Consumer Commission has no jurisdiction to try and decide the present complaint. It is further contended that the complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Parties. Further contended that the Opposite Parties shall not be responsible for the loss of unbooked luggage as per section 100 of The Railways Act, 1989. Further the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Parties. In fact, no incident of theft occurred on intervening night of 09/10.03.2019 in train No.13005 as alleged in the complaint. Sh.Ashok Kumar Shukla, Chief Inspector Ticket/MB was deputed by the Opposite Parties as coach conductor in coach No.B1, B2 and B3 on 09/10.03.2019 (9.50 PM to 5:30 AM) and said inspector checked the tickets of al the passengers in the coach referred above and fulfilled all his duties responsibly. He was regularly patrolling in coaches B1,B2 and B3 to ensure that the end doors of the coaches were kept locked to prevent outsiders/ unauthorised person entering the coach and during his duty hours, no alleged incident of theft was reported either to Chief Inspector Ticket or to Coach attendant/ guards by the complainant. As per the FIR , it has been transpired that the complainant was accusing co-passengers for the theft which rules out the possibility of any miscreants and unauthorized persons entering the coach B3 on the intervening night of the incident and in this way, the complainant herself was negligent in taking proper care of her luggage during the journey and as such, there is no deficiency in service on the part of the Opposite Parties.
8. First of all, ld.counsel for the Opposite Parties has contended that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act, 1986. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. Recently, Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so. Hence, this District Consumer Commission is not convinced with the aforesaid contention of the ld.counsel for the Opposite Parties.
9. The further plea of the Opposite Parties is that the the complainant is not a consumer of the Opposite Parties and if there was any grievance of the complainant with the Opposite Parties, the matter should be referred to the Railway Tribunal. But the we are not in agreement with the aforesaid contention of the Opposite Parties because as per Section 100 of Consumer Protection Act, 2019 (as amended upto date), the Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. in this regard, it is relevant to mention that the Hon’ble National Commission in case WESTERN RAILWAY v. VINOD SHARMA, I (2017) CPJ 279 (NC), while discussing the various provisions of the Act and by relying upon the judgments of the Hon’ble Supreme Court, in which it was observed that having due regard to the scheme of the Consumer Protection Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section '3' seeks to provide remedy under the Act in addition to other remedies provided under other Acts, unless there is clear bar; held in Para Nos.17 to 19 as follows:
“17. A plain reading of the provisions quoted above from the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 indicates that an elaborate mechanism has been laid down for providing compensation in the event of accidents, untoward incidents and allied matters, during the course of the operations, carried out by the Railways and for that purpose, the jurisdiction, powers and authority of the Claims Tribunal have been laid down. It is to be determined, however, whether keeping in view the above provisions, the consumer fora shall also have the jurisdiction to deal with the matters, involving railway accidents. The issue has come up for consideration from time to time before the Hon'ble Apex Court and this Commission as well. It has been observed that the Consumer Protection Act is a special legislation, enacted to provide better protection for the interests of consumers in diverse fields. It is true that for specific sectors such as banking, finance, insurance, supply of electricity, entertainment etc., appropriate mechanism has been laid down in the respective statute, to provide suitable relief to the consumers as per requirements. However, the Consumer Protection Act is a beneficial legislation, specially enacted for the protection of the consumers and provides an additional remedy in the shape of Section '3' of the Consumer Protection Act, which clearly lays down that the provisions of the Act shall be in addition to, and not in First Appeal No.334 of 2018 10 derogation of the provisions of any other law for the time being in force. A harmonious construction of the provisions contained in the Consumer Protection Act and the Railways Act etc. shall indicate that the jurisdiction of the consumer fora cannot be barred, even if the provisions to provide compensation are laid down in the Railway legislation. The Hon'ble Supreme Court in their order in Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha (dead) through LRs, I (2004) CLT 20 (SC) and in Trans Mediterranean Airways vs. Universal Exports, IV 2011 CPJ 13(SC) observed that, "having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section '3' seeks to provide remedy under the Act in addition to other remedies provided under other Acts, unless there is clear bar.
18. In State of Karnataka vs. Vishwabarathi House Building Co-op. Society, I (2003) CPJ 1 (SC), the Hon'ble Supreme Court observed, that by reasons of the provisions of Section '3' of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the Civil Courts or other statutory authorities.
19. Based on the discussion above, it is held that the consumer fora do have the jurisdiction to deal with the present case and hence, the consumer complaint cannot be dismissed on the ground of lack of jurisdiction by the consumer fora.”
Hence, in view of the law laid down by the Hon’ble Supreme Court as well as the National Commission as discussed above, the aforesaid contention of the appellants/opposite parties is rejected, holding that the Consumer Commission/District Commission is duly authorized and competent to decide the dispute between the parties and the District Commission duly exercised the jurisdiction under law. Not only this, recently our own Hon’ble State Consumer Commission, Punjab, Chandigarh in First Appeal No. 334 of 2018 decided on 06.06.2018 titled as Divisional Railway Manager Vs. Malkit Singh also held so.
10. It is not disputed that on 05.02.2019, the Complainant booked Railway Ticket from Ara (Bihar) to Ludhiana (Punjab) for 09.03.2019 of Train No. 13005 (Amritsar Mail), having PNR No. 6625266601, Seat No. 9, Coach No. 83 AC3, (Scheduled Arrival time 10-Mar-2019 05.34 at Ludhiana JN) and paid Rs.1390/. The case of the complainant is that during the night time at about 12.03 AM, (10.03.2019) when the Complainant was slept over, someone has stolen the luggage/ bag containing the gold ornaments, by cutting the bag, in which the gold ornaments i.e. four bangles, two rings, one Mangal Sutra, one Jhumka Set, one Gold chain, one hand lathi (mentioning the name of Rani Prabhu on it). When the Complainant has come to know this incident, the train reached at Ambala at about 3 AM (10.03.2019), the total price of the stolen ornaments is worth Rs.9,13,500/- at present. In this regard, the Complainant also lodged FIR No. 67 with SHO, GRP, Ambala Cantt. The Complainant suspected that a person traveling next to her opposite berth and the travelers upper to lower birth, the bag containing the jewellery stolen after attempt of torn of bag from inside the bag. B3, 12, B3 10 travelers are suspected to have made this attempt. The Complainant immediately searched for coach attendant, but neither coach attendant nor any guard was available there, even no TT or care taker of the coach was available there. It is submitted that it is the duty of the coach attendants to keep the doors of train closed during its running and to remain vigilant particularly at night, but employees of Opposite Parties did not perform their duty rightly and were negligent during working hours. On the other hand, the Opposite Parties has contended that as per the duty officer in coach No.B1, B2 and B3 on 09/10.03.2019 (9.50 PM to 5:30 AM), he was regularly patrolling in coaches B1,B2 and B3 to ensure that the end doors of the coaches were kept locked to prevent outsiders/ unauthorised person entering the coach and during his duty hours, no alleged incident of theft was reported either to Chief Inspector Ticket or to Coach attendant/ guards by the complainant. But we do not agree with the aforesaid contention of the Opposite Parties. We fail to understand that if there was no such occurrence of incident, then what was the need for the complainant to lodge FIR No. 67 with SHO, GRP, Ambala Cantt, copy of which is placed on record as Ex.C10. It appears that from wriggling out of their liability, the officers of the Railway are taking such vague stand that no such incident was occurred in coach No.B1, B2 and B3 on 09/10.03.2019 (9.50 PM to 5:30 AM). All this act of the Opposite Parties has caused loss and mental agony to the Complainant, which amounts to deficiency in service and trade mal practice on the part of the Opposite Parties. Moreover, as regards the issue of deficiency in service and negligence of Railways Administration, a list of duties prescribed by Railway Administration “TTE for Sleeper Coaches” is brought on record. Of these, duties prescribed at Sl No. 4, 14, 16 and 17 are very relevant. These read as follows:
“4. He shall check the tickets of the passengers in the coach, guide them to their berths/seats and prevent unauthorized persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers do not enter the coach.
14. He shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required.
16. He shall ensure that the end doors of vestibule trains are kept locked between 22.00 and 6.00 hrs to prevent outsiders entering the coach.
17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorised persons do not enter the coach”.
Furthermore, the above duties clearly show that there is a responsibility cast on the TTE attached to the second class sleeper coach to be very vigilant about anyone other than the reserved tickets holders entering the compartment, to such an extent that he is required to prevent even a relation of the passenger holding a platform ticket who comes to see off a passenger from entering a coach.
11. No doubt, the Complainant has purchased the reserved ticket by spending hefty amount, so that she as well as her luggage may remain safe during journey. The price difference between the unreserved ticket and a reserved ticket is quite high and the traveling public who buy a reserved ticket would expect that they can enjoy the train journey with a certain minimum amount of security and safety. Hon’ble National Commission held in citation ( I ) 2003 CPJ 72 in case titled as Union of India & ors Vs Sanjiv Dilsukhrai Dave & Anr that Consumer Protection Act, 1986 – Section 21 (b) – Railways – Luggage stolen from reserved compartment in night – Railway Administration responsible to prevent unauthorized entry – Basic safety and security precautions not taken by staff – Complainant entitled to compensation. On it, complainant put reliance on citation 2004 (3) RCR (C) page 140 titled as Sumantidevi M Dhanwatay Vs Union of India and Ors wherein our Hon’ble Apex Court held that Railway Act, 1989, Section 12A-Consumer Protection Act, 1986, Section 3 – Railways Act, passenger – Assault and snatching valuables of passengers by unauthorized passengers – Amounts to negligence and deficiency in service of Railways- Passengers are entitled to adequate security and safety - Railways cannot escape its liability from compensating such loss to the passengers – Consumer Act is not in derogation of any other law. It is further submitted that the Railway Department has failed to prevent such unauthorized person to enter the reserved compartment and hence, there is deficiency in service and negligence on the part of Opposite Parties in not providing requisite safety and security to reserved compartments. In the absence of any objection as to jurisdictional bar, For a (now Commission) can entertain and decide complaints of railway’s passengers on deficiency of service of railways. In this regard, the Complainant further placed reliance on citation 2015 (4) CPJ page 20 titled as Chief General Manager, South Eastern Central Railway Vs Smt Mamta Aggarwal wherein Hon’ble Chhatisgarh State Consumer Disputes Redressal Commission decided on 05.12.2014, held that Consumer Protection Act, 1986 Sections 2(1) (g), 14 (1) (d) and 15 Railways (as amended upto date) – Theft of suitcase- FIR lodged – Negligence and deficiency in service of railway officials – complaint allowed. The complainant further contended that the Complainant through her husband made so many requests and also representations through e-mail to the Opposite Parties on 19.03.2019, 03.04.2019, 07.05.2019, 07.06.2019, 09.06.2019, 04.07.2019 and thereafter as per the requirement, the Complainant also submitted the requisite documents i.e. detail of the stolen ornaments alongwith its bills and photograph, but the Complainant got no response from the Opposite Parties. In response to these e-mails sent by the complainant for the redressal of her grievance, the Opposite Parties kept mum and no reply has been given to the complaints of the complainant which proves negligence and deficiency in service on the part of the Opposite Parties for which the Opposite Parties are definitely liable to make good the loss of the complainant .
12. Now come to the quantum of compensation. In her complaint, the complainant has prayed for directing the Opposite Parties to refund the price of the stolen gold ornaments amounting to Rs.9,13,500/- alongwith interest @ 12% per annum from the date of its loss, till its realization and also to pay Rs.6 lakhs on account of compensation due to mental tension and harassment and due to business loss caused by the complainant besides the cost of complaint amounting to Rs.50,000/-. Bare perusal of the correspondence as well as e-mails sent to the Opposite Parties, the complainant has mentioned the worth of stolen jewellary and articles worth Rs.7 lakhs and as such, we hold that the Opposite Parties is to be directed to make good the loss of the complainant to the extent of Rs.7 lakhs only. Further, the Complainant has also prayed for Rs.6 lakhs on account of compensation due to mental tension and harassment and due to business loss caused by the complainant besides the cost of complaint amounting to Rs.50,000/-, but we are of the view that the claim for compensation to the tune of Rs.6 lakhs appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.10,000/- and we award the same accordingly.
13. In view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the complainant against all the Opposite Parties and all the Opposite Parties are jointly or severally directed to pay Rs.7 lakhs (Rupees seven lakhs only) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 20.10.2020 till its actual realization. Opposite Parties are also directed to pay Rs.10,000/- (Rupees ten thousands only) as lumpsum compensation to the complainant. Compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.
14. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:08.03.2022.
