Haryana

Ambala

CC/54/2017

Shilendra Pandey - Complainant(s)

Versus

General Manager Northern Railway - Opp.Party(s)

Gaurav Rajpoot

07 May 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

     Complaint Case No. : 54 of 2017

                 Date of Institution    : 20.02.2017

                Date of Decision       : 07.05.2018

Shailendera Pandey son of Shri Ram Tirth Pandey resident of House No.468, Urban Estate Sector 10, Ambala City Mobile No.9466851468.

……Complainant.

Versus

1.General Manager, Northern Railway, Baroda House, New Delhi.

2.Divisional Railway Manager, Ambala Cantt. Railway Station, DRM Ofice at Ambala Cantt.

3.Superintendent of Railway Police, Ambala near Kali Paltan Pul, Ambala Cantt.

……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

BEFORE:   SH.D.N.ARORA,PRESIDENT.

                   MS. ANAMIKA GUPTA,MEMBER.

                   SH.PUSHPENDER KUMAR, MEMBER.

Present:       Sh.Gaurav Rajput, Advocate for complainant.

                   Sh.Nitesh Sahni, counsel for the OP Nos. 1 & 2.

                   Sh.Om Parkash, SI for Op No.3.

ORDER

                   Brief facts of the present complaint are that the complainant had booked ticket from Vapi (Gujrat) to Ambala Cantt JN in train No12925 with on 18.03.2016 and the date of journey/boarding was 07.07.2016. The complainant alongwith his wife Mamta and daughter travelled by the said train on the given date alongwith three articles. Meanwhile some six persons crowded the doorway of the coach and sat on the luggage of the complainant and thereafter committed the theft of red bag containing ladies wrist watch costing about Rs.10,000/-, Fossile Gents Wrist watch costing about 10,000/-, gents purse costing Rs.3900/- containing cash 7800/-, ladies hand bag cost Rs.4,000/- and cash Rs.5,000/- total value Rs.40700/-. At that time no attendant was available in the coach. The complainant visited the Govt.Railway police Ambala Cantt. and got registered FIR No.198 dated 09.07.2016  u/s 379 IPC. The complainant had paid extra amount to the OPs with a hope to get better service, safety and security but to no avail despite the fact that it was the duty of the OPs not to allow any unauthorized person to enter in the coach.   He approached the OPs to compensate on account of suffered loss but to no avail. The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C7.

2.                          On notice OPs appeared and filed their separate replies. Op Nos. 1 & 2 in their joint reply have taken many preliminary objections such as cause of action and jurisdiction etc. The ticket was also not booked within the jurisdiction of this Forum and even the goods were neither insured nor booked. There is no material on the file that whether the complainant and his family had actually travelled or not. No theft had taken place and the present complaint has been filed just to blackmail the OPs and a false FIR has been got recorded. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                             OP No.3 in its reply has taken preliminary objection such as locus standi, jurisdiction and cause of action.  The police department is not covered under the Consumer Protection Act, as it discharges its sovereign functions. On the complaint of the complainant a case FIR No.198 dated 09.07.2016 u/s 379 IPC was registered against unknown persons and investigations of the case were also conducted by ASI Yash Pal. He had made efforts to trace the accused but stolen articles could not be traced.  Other contentions have been controverted and prayer for dismissal of the complaint has been made.  In evidence the OPs have tendered affidavits Annexure RB, Annexure R3/A.

4.                We have heard learned counsel for the parties and gone through the record very carefully.  

5.                The counsel for the OP Nos.1 & 2 while opening the arguments has argued that this Forum has no jurisdiction to entertain and decide the present complaint because neither the ticket was booked nor the luggage was insured/booked at Ambala. This plea of the counsel for the OPs is not tenable in the eyes of law because the FIR qua theft of the belongings of the complainants has been registered at Ambala Cantt. and part cause of action has arisen to the complainant at Ambala therefore, the complainant as per her choice has file the present complaint with the jurisdiction of this Forum.

6.                As per allegations of the complainant he alongwith his family had the train Train No.12925 from Vapi (Gujrat) to Ambala Cantt  and many persons without reservations were freely entering in the compartment and committed theft of his red bag containing the articles alongwith cash valuing Rs.40,700/- and regarding this FIR dated 08.07.2016  Annexure C2 was also registered but despite that the police did not take any action. The Ops were deficient in providing service to the complainant and due to their negligence the complainant has suffered financial loss and mental agony, therefore, the Ops are liable to make the loss good on account of their negligence. 

7.                          On the other hand, learned counsel for the Ops has argued that as per Railways shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless a railway servant has booked the luggage against a receipt. In view of the complainant is not entitled to any claim for the alleged theft which has occurred in the railway compartment because at the time of journey it was the liability of the complainants to keep the luggage safely and as per Constitution of India the responsibility for the safety and security lies with the Police Department of the State concerned, therefore, the Railways cannot be held liable for this mishap.

8.                          After hearing learned counsels for the parties and going through the material available on the case it is clear that firstly the question require to be answered in the present case is, whether the opposite parties can deny their liability to compensate the complainant by relying upon ; and whether there is negligence on the part of the Railway Administration in providing measures whereby removal of luggage /bag by intruders became possible? , 1989, reads as under:- Responsibility as carrier of luggage-A railway administration shall not be responsible for the loss, destruction, damage, deterioration of 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 servants.

9.                          This plea taken by the Ops is not sustainable because it is not disputed that the luggage/bag which was stolen during journey was not booked with them but it is mandatory to mention here that normally no one files complaint unless there is a loss and it is also not uncommon that theft place while travelling in the train by unauthorized person. In the present case there were specific allegations that unauthorized persons were there which were not checked by the railway staff, therefore, loss was caused on account of negligence on the part of OPs.  On this point reliance can be taken from case law titled as Union of India Vs. Virender Kaur FA No.340 of 2017 decided on 01.09.2017 by Hon’ble State Commission, Chandigarh wherein Hon’ble Commission by relied upon case law titled as Vijay Kumar Jain Vs. Union of India & Anr. III (2012) CPJ 55 (NC)  has held that  theft was committed during journey and the railway will be responsible towards carrier of luggage, in case loss was caused due to negligence of its servants. Jewellary articles which have been allegedly stolen from the possession of the passenger are not such articles those were required to be booked with the Ops. Those can be carried by the passenger while travelling in the train, therefore, we do not agree with the plea raised by the Op that goods were not booked with Op, therefore, the OP was not liable to pay the loss, if any, to the complainant.

10.                        Learned counsel for the complainant has rightly pointed out that the Railways Department cannot take the shelter of Section 100 of Railway Act as per case law titled as South East Central Railway Vs. Ashwani Ritwal decided on 11.03.2015 by Hon’ble State Commission of Chhattishgarh State Consumer Disputes Redressal Commission. Hon’ble State Commission while disposing of FA No.14/252  in para No.12 of has relied upon case law titled as General Manager, South Eastern Central Railway, Bilaspur (C.G) Vs. Smt.Pratima Tripathi Appeal No.159/2010 decided on 30.10.2010 wherein it has been held as under :

“8. Counsel for the appellant has also drawn our towards the provision of Section 100 of the Railway Act, 1989 s well as Rule 506.2 of Indian Railway Conference Association (IRCA) Tariff No.26 Part II. We have gone through both these provisions and found that none of these provisions has any relation with any reserve compartment. It is true that normally passengers are expected to take care of their personal luggage but when one travels in a reserved, then naturally a duty is imposed upon servants of Railway to take care of such passengers and their personal luggage, because unauthroised entry in such reserved compartments are restricted and no-one can enter in such reserved compartment, unless permitted by TTE or conductor in-charge of that compartment, therefore, the appellant cannot get any benefit of Section 100 of the Railway Act, 1989 and Section 506.2 of Indian Railway Conference Association (IRCA) Tariff No.26 part II.

                             Hon’ble National Commission in case titled as G.M.South Central Railway Vs. R.V.Kumar & Anr. 2005 STPL 168 (NC)  has held that  Theft if reserved compartment- Complaint allowed by District Forum and State Commission- Revision- Railway pleaded that it was no responsible for any loss of personal luggage, unless it is handedover to Railways- Not accepted- Held passenger travelling by train entitled to carry luggage within permissible limits and there was no question of entrusting such luggage to Railway and getting a receipt thereof- Railway held to be liable. This mishap doubted the work and conduct of officials of the OPs and indicating towards gross negligence on the part of the Railway Department.

11.              Keeping in view the above facts and circumstances and discussion made above we have no hitch to reach at a conclusion that the Railway Department is responsible for the alleged loss suffered by the complainant on account of theft of his luggage.

12.              The complainant in his complaint has mentioned that in the stolen luggage there was ladies wrist watch costing about Rs.10,000/-, Fossile Gents Wrist watch costing about 10,000/-, gents purse costing Rs.3900/- containing cash 7800/-, ladies hand bag cost Rs.4,000/- and cash Rs.5,000/- total value Rs.40700/-and this fact also has been mentioned in FIR No.198 dated 08.07.2016 (Annexure C2).

13.              As regards to compensation, the complainant in the complaint has prayed for making the loss good but we took a slightly conservative view while holding that the complainant has not produced any independent evidence for the purpose of assessing the damages and compensation. In this regard one has to take note that the common men do not preserve the bills of each and every item to pile up unnecessary papers expecting that someday a theft may take place and he would be required to produce those documents. In ordinary course the affidavits should be accepted and acted upon keeping some margin of exaggeration of claims. In such a situation one has also keep in mind probable depreciated value of the articles lost.

14.                        Keeping in view of the circumstances explained above as well as the fact that the complainant has suffered financial loss besides loss of agony, mental harassment, therefore, in order to meet the end of justice, we assess the loss which occurred to the complainants due to deficiency in service on the part of the Ops to the tune of Rs.20,000/- in lump sum. Accordingly, we partly allow the present complaint with costs which is assessed at Rs.3,000/- and the OPs are directed to pay the above said amount within a period of two months jointly and severally after receiving the copy of this order, failing which the awarded amount would carry interest @ 9 % per annum from the date of filing of complaint till its realization. Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

Announced on: 07.05.2018                                 

(ANAMIKA GUPTA)   (PUSHPENDER KUMAR)  (D.N.ARORA)                            MEMBER                  MEMBER                       PRESIDENT