Sri Shyamal Gupta, Member

Challenging the dismissal of his complaint case by the Ld. District Forum vide impugned order, this statutory Appeal u/s 15 of the Consumer Protection Act, 1986 is preferred by Sri Sudhamoy Goutam and another.

The instant complaint case was filed holding the Respondent Railway authority responsible for their failure to secure the safety of their luggage during train journey.  The Respondents, however, denied any laches on their part and held the Appellants responsible for not taking proper care of their belongings.

In this regard, we heard the submission advanced by the parties and gone through the documents on record.

Ld. Advocate for the Respondents strongly disputed the maintainability of the case citing Sec. 100 of the Railways Act.

Objection raised on the part of the Respondents notwithstanding, it appears to us that the relevant provision is no bar to adjudicate such dispute by the Consumer Fora.

The Hon’ble Supreme Court in Sumatidevi M. Dhanwatay v. Union of India & Ors., II (2004) CPJ 27 (SC) observed thus:

“Railway administration cannot escape its liability for negligence and deficiency in service in failing to prevent unauthorized persons assaulting passengers in railway compartment and taking away their luggage”.

The position of law in this regard has also been examined and settled by the Hon’ble National Commission in Union of India & Ors. V. J. S. Kunwar, 1 (2010) CPJ 90 (NC), Union of India & Ors. V. Sanjiv Dilsukhraj Dave & Anr., 2003 CTJ 196 (CP) (NCDRC), Mrs. Kanthimathi & Anr. V. Govt. of India, I (2003) CPJ 16 (NC).  For the sake of brevity of discussion, we refrain from quoting the observation of Hon’ble Commission in these cases. 

Plain reading of the aforesaid Section reveals that if it is proved that untoward incident like theft took place on account of the laches of the personnel of Indian Railways, then the Railways can definitely be held responsible to compensate the victim; otherwise not.

In view of this, let us decide, whether there was any laches on the part of the Respondents, or not.

It is alleged by the Appellants that on the fateful day, several unauthorized persons entered the reservation compartment of the Appellants and escaped with some of their belongings.  In support of such contention, they referred to the copy of the FRT being submitted by the Investigating Agency.

On a reference to the said FRT it transpires that the IO concerned interrogated some co-passengers, who boarded the said train and recorded their statement u/s 161, CrPC.  The IO also arrested one person.  It is altogether a different matter that as because he did not succeed in making recovery of the stolen items, the accused person was discharged. 

Most importantly, the IO concerned in unequivocal terms vouched for the authenticity of the incident as alleged in the petition of complaint. The opinion of the IO does carry immense significance.

Further, entry of unauthorized persons inside reserved compartments of trains during prohibited hours at night is an open secret. 

In this regard, it may not be out of the place to mention a Business Standard report published on 28-04-2019.  According to this report, Railway theft saw five-fold increase in past decade with 171,000 cases.

Therefore, simply by denying the obvious, the Respondents cannot brush the truth under the carpet.

Next, let us discuss, whether there was any negligence on the part of the Respondents.TTE and RPF to prevent entry of unauthorized persons inside the reserved train compartments at night. 

It is quite intrigue to note that the TTE concerned did not enter the reserved compartment where the Appellants boarded even once.  Had he done so, he would definitely make due endorsement on the railway ticket of the Appellants, which is not done in this case. The Respondents could not offer any satisfactory explanation in this connection.   It certainly proves the allegation of the Appellants against the TTE. 

It is though contended by the Respondents that unless luggage is booked, the Railways cannot be held responsible to make good the loss.  In this regard, the observation of Hon’ble National Commission, in  G.M., South Central Railway vs R.V. Kumar & Anr. reported in 2005 CTJ 862 (CP) (NCDRC) is worth mentioning:

"A passenger travelling by a train is entitled to carry certain baggage or luggage within permissible limits of weight, free of cost. There is no question of entrusting such baggage/luggage to the Railways and getting a receipt thereof. If a loss takes place of such a luggage, Railways can be held responsible provided that there is negligence on the part of Railways or any of its servants,….”

The Respondents though accused the Appellants of gross negligence for not taking utmost care of their belongings unlike other co-passengers, no tangible proof is adduced on their behalf to show that indeed the incident took place on account of the negligence of the Appellants.  It is futile to expect a passenger to remain wide awake 24 x 7 during train journey.  The Appellants cough up extra money for reserving their seats out of their ardent hope that the Railways would thwart all attempts of intrusion inside the train compartment at night by keeping strict vigil.  Alas, so casual was the concerned TTE was that, he did not visit the compartment in question even once. While unauthorized persons enter reserved compartments at night in presence of the TTE, as we all know, in absence of the TTE or RPF, the situation can be easily imaginable.

Circumstantial as well as documentary evidence on record leave no room for any suspicion about the genuineness of the allegation of the Appellants and since the negligence of Railway officials is palpable without any tinge of doubt, in our considered opinion, the Respondents cannot shrink their responsibility to make good the loss suffered by the Appellants.

It is stated in the petition of complaint that the Appellants lost goods worth Rs. 25,700/- and in support of such contention, the Appellants annexed the photocopy of one Tax Invoice towards purchase of one digital camera costing Rs. 19,200/-.  Since it is not unusual for a tourist to carry camera while proceedings for an excursion, we find no reason to disbelieve his claim in this regard.  However, Appellants’ claim for an amount of Rs. 1,50,000/- as compensation for the mental stress and agony appears to be out of sync.  Similarly, claim of the Appellants for a sum of Rs. 20,000/- towards loss of two nos. 2 GB memory cards is also not tenable being on the higher side.  Having said that, we cannot be oblivious of the harassment, mental stress and agony being faced by the Appellants on account of the loss of their belongings.  Considering all aspects, it appears to us that a lump sum amount of Rs. 1,00,000/- as compensation shall be just and fair.  The Respondents shall pay the aforesaid sum along with another sum of Rs. 20,000/- as litigation cost within 40 days hence, i.d., the aforesaid awarded sum shall carry simple interest @ 9% p.a. which shall be payable by the  Respondents to the Appellants from the date of filing of the complaint case till full and final payment is made.

Appeal stands allowed. The impugned order is hereby set aside.