BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No. 38/2014

Dated this the 20^th day of August, 2018

(Date of Institution: 9.6.2014)

K. Usha Nandhini W/o. R. Kumaran,

Hindu, aged about 39 years,

presently residing at Frontier Head Quarters,

BSF Gandhi Nagar,   Pholoda Road,

Gandhi Nagar, Gujarat, having permanent residence at

Puducherry 384025 represented through her Power Agent

K. Ramu, S/o. Kesavan, aged about 63 years residing at No.47,

Sambandar Street, Arumparthapuram,

 Pondicherry – 605 110                                        ….     Complainant

vs

1. General Manager Railways, Delhi Main

          Railway Station, Delhi

2. Station House Officer, GRP Agra Cantt, Agra (UP)

3. Chief Commercial Manager (Commercial),

          Southern Railway Chennai,

4. General Manager, Pondicherry Railway Station,

          Pondicherry                                                          ….     Opposite Parties

BEFORE:

          THIRU A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt. D. KAVITHA, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT:  Tvl. U. Mohan Ilayaraja, E. Sivakumar,

Ilangokrishnamoorthy, Advocates           

FOR THE OPPOSITE PARTIES:    Exparte – O.P.1 and 2.        

Thiru V.M.P. Mourougayane, Advocate for O.P.3 and 4                  

O R  D  E  R

(by Thiru V.V. STEEPHEN)

              This is a complaint filed by the complainant u/s 14(1)(c)(d)(f) of Consumer Protection Act, to direct the Opposite Parties to make good and indemnify the loss suffered by the complainant and to compensate for his deficiency in service, to indemnify the loss to the tune of Rs.1,80,000/- being the cost of Mangala Sutrua of (6 sovereigns) due to deficiency in service; to pay a sum of Rs.2,00,000/- as compensation to the complainant for the mental agony and sufferings caused due to the negligence and deficiency in service; to pay a sum of Rs.25,000/-  towards costs of the proceedings.

2.       The case of the complainant is as follows:

          The complainant's husband is presently working at Gujarat and during 2012 he was working in Border Security Force at Bikaner (Raj and on account of his job she and her family members were residing at Bikaner (Raj) and having permanent residence at Puducherry as mentioned in the complaint.   The complainant and her family members (husband, son and daughter) were proceeding to their native town Pondicherry from Bikaner (Raj) and they boarded in Delhi-Pondicherry Express (Train No.22404) on 13.5.2012 at about 23.30 hours in New Delhi, the e-ticket reserving PNR S/6 with seat Nos.65,66,68 & 71.   The complainant slept in berth No.68 in coach S/6 and that on 14.5.2012 at about 2.30 hours while the train was slow somewhere near outer of Agra Cantt Station, one unknown person tried to snatch her Mangal sutra weighing about 48 gms (6 sovereigns) despite of her forcible attack with shouting for help the unknown person had snatched the chain and ran upto the door and when her husband tried to catch hold of hi, he jumped out of the train as the train was going slow to enter into the Agra Station.   Her husband pulled the train alarm to stop the train and that the train stopped after three minutes where the Loco Driver along with Train guard reached the spot and they were having only small torch and they could not clearly view the movement of the unknown person and they informed that GRP staff from Agra Station will attend their complaint.   When the train reached Agra Cantt. No persons from GRP attended their complaint and when she approached the train TTE and complained over the happenings and that her husband went to 'May I help you Booth' where announcement for GRP staff to attend coach S/6 was given twice, but none came and at last one ASI from RPF reached the coach and collected the details and informed to lodge FIR available with TTE.   After moving of train, the TTE on Train said that he is not having FIR form and gave a piece of paper in which her husband gave a written report which was received and acknowledged by the TTE.   After reaching her destination at Pondicherry on 15.5.2012 when complaint was made at the Pondicherry Railway Police station they were informed that there is no GRP Station at Pondicherry and only at Villupuram they can lodge an FIR, immediately the complainant and their family members rushed to GRP available at Vilupuram, to lodge an FIR but where they informed that FIR will not be lodged at that station and asked to forward a written complaint to GRP station at Agra.   She had also made a written complaint to the Station House Officer, GRP Agra Cantt. Agra (UP) on 16.5.2012 and the Deputy Inspector of General Border force had also communicated the incident to Superintendent of Police, Railway, Agra (UP) for necessary action on 23.5.2012 and that the complainant's husband had made several mail communications also but all ended in vain.    The TTE attached to S/o coach had not 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 and had not ensured that the end doors of vestibule trains are kept locked between 22.00 and 6.00 hours to prevent outsides entering the coach and further had not vigilantly ensures that intruders, beggars, hawkers and unauthorized persons do not enter the coach.   Thus there has been negligence on the part of Railway Administration which includes the Railway Police as well as the Railway Protection Force in not providing proper service to passengers and their negligence had allowed the thief to escape.   Though complaint was duly received by TTE the Railway administration had deliberately failed to lodge an FIR besides their negligence and deficiency in service in failing to prevent unauthorized person assaulting passengers in railway compartment and committing theft upon their belongings.   Thus such acts and conducts of opposite parties herein had made this complainant to suffer continuous mental agony and harassment.    The complainant has incurred a heavy loss to the tune of Rs.1,80,000/- being the cost of Mangal Sutra of (6 sovereigns), due to deficiency in service of the opposite party.   Hence the complainant filed this complaint.

3.       The first and second opposite parties were called absent set exparte.   The reply version filed by the O.P.3 adopted by O.P.4, briefly discloses the following:

           The complaint filed by the complainant against the opposite parties 3 and 4 is not at all maintainable either in law or on facts.   There is no such post of General Manager at the Pondicherry Railway Station as mentioned in the complaint.   It is only Station Manager.  As per the complaint the alleged incident had happened at about 02.30 hours on the night of 15.5.2012.   During the dark mid-night hours alleged unknown person could not be viewed by Railway Staff.   Hence the Railway Staff could not be found at fault in this regard.   There was enormous delay on the part of the complainant in filing the complaint.   As per the complaint and statement of the complainant the alleged incident had happened nearby Agra Cantonment Railway Station.   Hence the cause of action arose only at Agra not at Puducherry or Villupuram.   So this Forum has no jurisdiction to entertain the complaint.   They are wrongly arrayed as parties in the complaint, as they were no way connected with the complaint.   The complainant herself stated that the Assistant Sub-Inspector, Railway Protection Force, Agra Cantonment Railway Station had attended the complainant and collected details from the complainant.   The Travelling Ticket Examiner also had received the complaint from the husband of the complaint.   Hence the complaint was lodged at the station having jurisdiction to deal with the complaint.   Only the Government Railway Police at Agra Cantonment Railway Station have jurisdiction to deal the complaint.   Railway Protection Force personnel and Station Personnel at Puducherry Railway Station and Government Railway Police at Villupuram Railway Junction have no jurisdiction to register and investigate into the matter alleged in the said complaint.   Hence even the alleged guidance provided by Railway Personnel at Puducherry Railway Station and Villupuram Railway Junction were correct and there was no deficiency in service or negligence on the part of the Railway Administration in this regard.   The complainant had made a written complaint to SGO, GRP, Agra on 16.5.2012.   The complainant was at Puducherry on 15.5.2012 as per her own statement.   Hence it could be assumed that the said complaint dt.16.5.2012 i.e. documents No.4 and 5 were sent through post.   The document No.4 does not have any date on which it was given or sent.   Also it was stated by complainant that her husband had sent many reminders through mail.   But no acknowledgment from SHO/GRP/Agra was produced by the complainant to substantiate the documents No.4 and 5 and no evidence for the reminder-mails sent by the husband of the complainant was produced by the complainant.   The allegations contained in the complaint against the opposite parties are all false.   There was no deficiency of service or negligence on the part of Railway Administration and its personnel in this regard.   There is no cause of action for the complaint.   As per section 100 of Railway Act 1989, 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 there-for 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.   In this regard, it is submitted that the said section speaks about the luggage booked to be in the custody of the railway or booked to be in the custody of passenger.   But in the resent case, the Mangal sutra was not booked as luggage either to be in the custody of the complainant-passenger and was not booed either to be in the custody of the Railway or in the custody of the passenger.   Hence the Railway Administration could not be held responsible for the alleged theft and liable to pay any compensation towards the loss of said Mangal Sutra or to be alleged sufferings of the complainant.   Hence prayed for dismissal of the complaint with exemplary cost.

4.                On the side of the complainant, the complainant was examined as CW1 and the husband of the complainant by name R. Kumaran was examined as CW2 and Exs.C1 to Ex.C7  were marked through CW1.   Opposite parties 1 and 2 remained exparte and opposite parties 3 and 4 represented through G. Manohar, Assistant Commissioner of Trichy, was examined as RW1 and Ex.R1 to Ex.R3 were marked through RW1.  

Both sides records and evidence were carefully perused and observed by this Forum as follows:

5.                 Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether deficiency service is attributed by the act of opposite parties?
3. Whether the complainant is entitled for any relief?

6.                Point No.1:

                    The complainant booked a train ticket Ex.C1 for herself and for her family members for their Travel in New Delhi-Pondy Express Train 22404, boarded the train at New Delhi O.P.1 and reached Pondicherry O.P.4.   During the course of train journey the Mangalsutra (Thaali Chain) worn by the complainant was snatched away by the unknown person in the train and jumped of near Agra Cantonment Railway station O.P.3 for which a complaint Ex.C2, was lodged with the T.T.E. present in the Train.   Thereafter the complainant on reaching Puducherry preferred a complaint before the Pondicherry Railways O.P.4, but being refused to entertain the complaint, the complainant forwarded the complaint to the Station House Officer, GRP, Agra Contonment, Agra O.P.3.   In view of these facts, it is observed by the Forum that the complainant being a railway passenger and the course of events happened between New Delhi O.P.1 and Puducherry O.P.4, the complainant is considered to be a consumer for claiming relief as against the opposite parties.   This point is answered accordingly.

7.                Point No.2:

                   It is submitted by the complainant that her husband R. Kumaran, during the year 2012 was working in Border Security Force in Rajasthan and due to which the complainant along with her children resided at Rajasthan.   The complainant being a native of Pondicherry and for having a visit to the native town, the complainant booked a train ticket Ex.C1 for herself and for the family members of the complainant in New Delhi Pondicherry Express train No.22404 and boarded the train at New Delhi Railway station of O.P.1 on 13.5.2012 and reached the Pondicherry Railway Station O.P.4 on 15.5.2012.   During the course of journey some unknown persons in the train snatched the Mangal Sutra (Thaali Chain) worn by the complainant and jumped off the train near Agra Station.   It is further submitted that the complainant could not secure the culprit and hence preferred a complaint before Agra Cantonment Railway Police Station but refused to entertain the complaint, instead directed the complainant to give the complaint to the T.T.E. in the train.   Thereafter  a complaint Ex.C2 was lodged with T.T.E. present in the train and upon reaching Puducherry the complaint was also preferred  before Pondicherry Railway Station, but refused to accept the complaint and hence a complaint was forwarded to the Station House Officer GRP Agra Cantonment for action.   But no action was mooted out on the complaint to retrieve the jewel lost by the complainant.  

8.       It was the submission of the complainant that it was due to the negligence on the part of Railway Administration and Railway Police, this incident had happened and the complainant incurred loss.   Hence the complaint was filed against the opposite parties for making good, the loss suffered by the complainant due to the deficiency of service of the opposite parties.

9.       The opposite parties 1 and 2 remained exparte.   The opposite parties 3 and 4, submitted that since the alleged incident of theft happened only at Agra O.P.2 and no cause of action arose at Pondicherry, the complaint is not maintainable as against O.P.3 and 4 before this Forum.   It is further submitted by the opposite parties that there was no negligence or lack of service either by the Railway Personnel manning the said Coach of the train or by the Railway Administration and further submitted that the Mangal Sutra of the complainant was not booked as goods or luggage with the Railway authority and hence the opposite parties could be held liable for the loss of goods in the custody of the complainant and on these submissions the opposite parties prayed for the dismissal of the complaint.   

10.     On the perusal of the case records, it is observed that the complainant has booked the ticket Ex.C1 for herself and for her family members for the journey from New Delhi to Pondicherry and the incident of theft happened during that course of journey and hence the complaint can be lodged at the destination place of journey also but opposite parties refused to accept the complaint given by the complainant which is evident from the reply version filed by the opposite parties thereby giving rise to cause of action for the act of negligence and deficiency of service by the opposite parties 3 and 4.   Moreover RW1, as admitted in evidence that they are authorised to receive the complaint for the loss of goods of the complainant and thereafter forward the complainant to the Security Department at Villupuram and further it is admitted by RW1 that the passengers are entitled to make complaints at any stations between the boarding and destination point.   The relevant portion of the reply version of O.P.3 and 4 in page No.2 is as follows:

                    "…..the alleged guidance provided by the railway personnel at Puducherry Railway Station and Villupuram Railway Junction were correct …."

and the evidence of RW1 representing opposite parties 3 and 4 is as follows:

          "….the station manager Pondicherry will receive the complaint about any loss of goods from the passenger if any and is also authorised to take action based on the complaint received by him.   ……a passenger can make complaints at any stations between the boarding and destination point……"

11.              It is very clear from the above facts that inspite of knowing the facts that the opposite party 4 is authorised to receive the complaint, the act of refusal in receiving the complaint of the complainant would amount to negligent and deficient act of the opposite parties.   It is further observed by this forum that the Train ticket obtained by the complainant is for a journey from Delhi to Puducherry and the alleged incident happened during the course of journey and the complainant ended up the journey at Puducherry Railway station and the act of refusal of the complaint by O.P.4 from the complainant give rise to cause of action at Puducherry.    Hence in consideration of the above facts, it is held that the complaint is maintainable against opposite parties 3 and 4 before this forum.

12.     It is contended by the opposite parties that since the Mangal Sutra (thaali chain) of the complainant was not booked as luggage or goods before the Railway authority, the opposite parties could not be held liable for the loss suffered by the complainant as per section 100 of the Railways Act.   Section 100 of the Railways Act read as follows:                  

            "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 its servants".

In support of the contention, the opposite parties relied upon the judgment delivered by the Hon'ble Supreme Court in Vijay Kumar Jain Vs. Union of India, dated 17.5.2012 but the facts of the case discussed herein differs from the case referred by the opposite parties and hence the contention of the opposite parties relying on this judgment cannot be taken into consideration for the present case.   But whereas the case of the complainant is concerned it is the case wherein the luggage is carried by the passenger in-charge and the luggage is lost due to the negligence of the Railways.   In support of the contention, the complainant has listed following citations

1. NCDRC  - G.M. South Central Railway Vs. R.V. Kumar and another dt.4.1.2005,

2. General Manager, North Central Railway Vs. Dhirendra Kumar Rai – 2015 CJ – NCDRC – 893

3. South Central Railway Vs. Jagannath Mohan Shinde – 2012 CJ – NCDRC 558

4. Union of India Vs. Anjana Singh Chawhan – 2014 CJ – NCDRC 451

1. NCDRC  - G.M. South Central Railway Vs. R.V. Kumar and another dt.4.1.2005, wherein it is observed that "a passenger travelling by train is entitled to carry certain baggage or luggage within the permissive limits of weight, free of cost.   There is no question of entrusting such baggage or luggage to the railways and getting a receipt there of.   If a loss takes place of such a luggage, railways can be held responsible, provided there is negligence on the part of railways……."railway administration cannot escape its liability for negligence and deficiency in service, in failing to prevent unauthorized person assaulting passengers in Railway compartment and taking away their luggage…."

The other citations relied by the complainant is not applicable to this present case as the facts of the case differs.  

13.              On the perusal of the evidence and records of the case in hand, it is observed that the opposite parties 3 and 4 had no direct knowledge about the incident and the facts mentioned by the complainant and it is the T.T.R. who was present in the Train can speak about the alleged incident.    But the T.T.R. has not turned up before this Forum inspite of the summons being served on him, on the application moved by the complainant in M.P. No.82/2016.    It is the bounden duty of the T.T.E. being a public servant to obey the order of the Forum and RW1 representing the O.P.3 and O.P.4 has also not taken any efforts to produce the T.T.E. to speak about the incident or produced any records to show that the R.P.F was present in the coach and that the opposite parties were not negligent in discharging their duties.   The answerable opposite parties 1 and 2 remain irresponsible in not appearing before this Forum to defend the case and remained exparte.   Further nothing materialistic evidence has been elucidated during the cross examination of CW1 by opposite parties 3 and 4 to disprove the allegations of the complainant.    In this context, it has to be inferred from the evidence of the complainant that the opposite parties are negligent in discharging their duties, which led to the loss of the goods of the complainant. 

14.     With regard to the value of the thaali chain stolen by the unknown person, it is contended by the opposite parties that the thaali chain is not of gold and does not have a worth as mentioned in the complaint.   On perusal of the complaint, Ex.C2 it is observed that the complaint was given to the T.T.E. present in the train immediately after the alleged incident of chain snatching took place, wherein the complaint specifies the quantity of jewel stolen by the unknown person as six tolas.   Further the circumstance of the incident and the factum by which the complainant has lodged the complaint does not create any doubt to disbelieve the version of the complainant and the purchase bill dated 16.10.2010 Ex.C7 produced by the complainant also matches to the quantity of thaali mentioned in the complaint Ex.C2.  

15.     In view of the observation made in paras supra, it is held by this forum that the complainant is entitled for the compensation for the loss of the mangal sutra (thaali chain) and for mental agony and hardship due to the deficiency in service of the opposite parties.

16.              POINT No.3:

                    In the result, the complaint is hereby allowed and the OPs are jointly and severally directed:

i) to pay a sum of Rs.1,25,000/- as compensation towards the vale of mangal sutra (thaali chain) of the complainant, due to the deficiency in service of the opposite parties.  

ii) to pay a sum of Rs.25,000/- as compensation to the complainant for the mental agony and hardship suffered due to the negligence and deficiency in service of the opposite parties.  

          iii) to pay a sum of Rs.5,000/- towards cost of this proceedings

Dated this the 20^th August, 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS:

CW1           16.7.2015             K. Usha Nandhini

CW2           18.9.2015             R. Kumaran      

OPPOSITE PARTY'S WITNESS:

RW1           2.2.2016               G. Manogar

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

RW1   18.12.2003 Extended guidelines issued by Additional General Manager

                               Public grievance Chennai Southern Railway.

RW2    26.02.2015   Authorisation letter issued by Senior Divisional Commercial

                                 Manager, Thiruchchirappalli division, Thiruchchirappalli to

                               RW1.

RW3 21.03.2016 Letter containing the details of the DY. CTI who had signed

                               and accepted the complaint in Train No.22404.

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER