Karnataka
Bangalore 4th Additional
CC/14/1997
Smt. Ramila Devi - Complainant(s)
Versus
General Manager South Western Railway and Other - Opp.Party(s)
04 Sep 2018
ORDER
Complaint filed on: 27.11.2014
Disposed on: 04.09.2018
BEFORE THE IV ADDL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU
1ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027
CC.No.1997/2014
DATED THIS THE 4th SEPTEMBER OF 2018
PRESENT
SRI.S.L.PATIL, PRESIDENT
SMT.N.R.ROOPA, MEMBER
| Complainant/s | V/s | Opposite party/s
|
| Smt.Ramila Devi, W/o Shanthilal, Aged about 50 years, R/at No.446/1, Ashoka Road, Mysore-570001.
By.Adv.T.Prakash | 1 | General Manager, South Western Railway Club Road, Keshwapur, Hubli-580023.
|
|
| 2 | Divisional Railway Manager, 1st Floor, South Western Railway, Bangalore City Railway Station, Bangalore-560 023.
By.Adv.S.R.Khamroz Khan |
PRESIDENT: SRI.S.L.PATIL
1. The Complainant has filed this complaint as against the Opposite Parties directing to compensate Rs.18,32,000/- along with interest and to pass such other orders.
2. The brief facts of the case of the complainant are that the Complainant and her husband are the residents of Mysore and the Complainant’s husband is having fancy store in the Mysore. There was a marriage of Complainant’s husband’s uncle’s daughter which was scheduled to be held on 2.3.2014 at Pantheri, Rajasthan. Therefore, the Complainant, her husband Shanthi Lal, her daughter Seema and her mother-in-law Suki bai had reserved the train tickets i.e., sleeping berth seat No.33 to 36 of S10 Bogie/compartment of Garib navaz express train bearing No.16532 starting from Bangalore railway station to Falna Railway station Rajasthan which was scheduled to leave the Bangalore Railway station 21.2.2014 at about 5 pm in the evening. Accordingly on 21.2.2014, the Complainant, her husband, her daughter and her mother-in-law came from Mysore to Bangalore in Tippu express train and they reached Bangalore railway station at about 2.15 pm in the afternoon. Therefore at about 4.35 pm in the evening, Garib Navaz express train bearing No.16532 came to the Platform NO.8 of Bangalore city railway station. The Complainant and her family members got into the bogie/compartment No.S10 of the said train. The Complainant was sitting on seat No.33, Complainant’s mother-in-law was sitting on seat No.36 and Complainant’s daughter was sitting on upper berth seat No.35. The Complainant’s husband was sitting on the seat which was near the window. Since the Complainant’s husband is the heart patient who had already undergone angioplasty twice and he needs continuous medical attention and incase of emergency, he has to be admitted to nearby hospital. Therefore, the Complainant used to accompany her husband always and she used to carry cash. At about 5 pm in the evening, the Complainant’s husband had gone to wash his hands at wash basin. The Complainant had kept her handbag nearby her and finished her lunch and she was picking up the drinking water bottle at that time the train started moving slowly. At that juncture, one person who was sitting in the upper berth, opposite to berth No.35 suddenly got down and forcibly taken away the hand bag of Complainant and got down from the train and ran off. The Complainant shouted as kalla kalla and she got down from the moving train and she fell down. The Complainant’s daughter Seema also got down from the train and fell down. But nobody could catch the thief. The Complainant’s husband who was near the wash basin has pulled the chain of the train to stop the train and the train stopped after few minutes. The Complainant and her family members were shouting for help and nobody helped them. On the other hand, public were expressing their anguish for stopping the train. The Complainant and her family members have complained to the TT. The TT has told the Complainant and her family members that they can give the complaint within one month from the date of the incident and they can proceed with the journey since all passengers are expressing their anger. The Complainant and her family members could not do anything at that juncture and as per the advice of the TT and the passengers in the train, they got into the train. The train started moving again. Later some of the passengers in the train, advised to the Complainant and her family members that they should have filed a complaint to the police station at Bangalore City Railway Police Station. Therefore, the Complainant and her husband had called her son Mahaveer who was at Mysore and told him to go to Bangalore City Railway Police Station immediately and give a complaint. Accordingly, the Complainant’s son Mahaveer came from Mysore on the next day at about 4.30 pm in the evening and met the Sub-Inspector Valli. Even on 21.2.2014 also she had kept cash of Rs.90,000/- for emergency medical expenses and travel expenses and medicines in her hand bag. Since they were going for a marriage, the Complainant had kept in her hand bag all her golden articles for her daughter Seema to wear in the marriage function. In the said hand bag, she had kept her Nokia mobile phone, Voter’s ID car, Adhar Card also. The description of the articles kept in her bag are shown as hereunder:
i Cash of Rs.90,000/-,
ii Golden Sontada Patti weighing about 120 gms,
iii Golden bangles 6 in numbers weighing about 150 gms,
iv Golden necklace weighing about 70 gms,
v Golden bachu bandh weighing about 30 gms,
vi Golden Mangalya chain weighing about 70 gms,
vii Golden finger ring 4 in numbers weighing about 37 gms,
viii Golden chain weighing about 11 gms,
ix Nokia Mobile,
x. Adhar Card, Voter ID card, Driving license of Complainant’s husband.
All together the said golden articles were weighing about 488 grams. The Complainant has shown golden articles in IT returns filed by her. The said Sub-Inspector did not take the complaint and he has insisted either the Complainant or her daughter should come to the police station and give the complaint. Accordingly, the Complainant’s son called on the Complainant and narrated the same. Therefore, the Complainant’s daughter got down at Bombay railway station and she came to Bangalore by flight on 23.2.2014 along with one of her relative Jograj for the purpose of giving the complaint. On 23.2.2014 at about 9 a.m., she along with her brother Mahaveer met the Sub-inspector Valli Bangalore City railway police and narrated the entire incident. But the said Sub-Inspector Bangalore City railway police did not register the complaint. The Complainant’s daughter and her son do not know anybody in Bangalore and they tried their level best. But the Sub-Inspector Valli Bangalore City Railway police did not register the complaint. Thereafter they met the Inspector Mohammad Aslam and he had also dragged the issue without registering the complaint. Thereafter, they have approached the Dy.S.P.Bangalore City Railway Police Station and he in turn has directed the Sub-Inspector Valli to register the case. Accordingly, the case was registered on 27.2.2014 in Cr.No.47/2014 for the offence punishable u/s 379 of IPC against the unknown persons. Thereafter the Complainant’s son Mahaveer and his sister went back to Mysore. The investigation is still pending and there is no progress in the case. The Complainant and all her family members visited the railway police station Bangalore number of times. The railway police did not locate the thief and recovered the golden articles and cash. The Complainant having left with no other option, has filed this complaint. The Complainant submits that the he is a consumer as per the CP Act and the Opposite Parties are the service providers. The Opposite Party is liable to compensate for the Complainant for the theft of her cash of Rs.90,000/- and golden articles weighing 488 gms presently worth about Rs.13,00,000/- in the train. It is a reserved compartment, it is the duty of the railway department to see that no introducers are entered to the reserved compartment and to commit theft of the luggage/goods/articles of the passengers. It is a deficiency of service. The Opposite Parties have not taken proper care to protect the articles/goods carried by the passengers. Thereby the Opposite Parties are liable to compensate to the Complainant for the loss of cash, golden article and other articles. In the instant case, the Complainant and her family members have reserved their tickets. The intruder has forcibly taken away the hand bag which was consisting of the cash, golden articles and mobile and got down from the train and ran away. Therefore, it is the Opposite Parties are liable to pay the compensation of Rs.18,32,000/- to the Complainant under the following heads
1. | Los of cash | Rs.90,000/- |
2 | Loss of golden article weighing about 488 gms | Rs. 13 Lakhs |
3 | Making charges of the above referred golden articles at the rate of 13% | Rs.1,69,000/- |
4 | Nokia mobile | Rs.3,000/- |
5 | Flight ticket charges for the complainant’s daughter from Bombay to Bangalore | Rs.13,000/- |
6 | For expenses incurred for staying in Bangalore on 22.2.2014 to 27.2.2014 for getting the complaint registered. | Rs.12,000/- |
7 | For having visited the Bangalore City Railway police station for about 10 times after the registration of the case for follow up action | Rs.20,000/- |
8 | For mental agony | Rs.2,00,000/- |
9 | Litigation expenses | Rs.25,000/- |
| Total | Rs.18,32,000/- |
Hence, the Complainant submits to allow this complaint.
3. The notice was ordered to the Opposite Party. The Opposite Parties did appear and filed their version and denying the contents of the complaint filed by the Complainant.
4. The sum and substance of the version filed by the OP are that the tickets were obtained in Train No.16532, Garib Navaz Express on 21.2.2014 for travel from Bangalore Railway station to Falna is admitted by the OP. OP submits that the complainant has concocted the story that her bag was contained gold jewellery, cash of Rs.90,000/-, mobile phone and other documents were stolen. OP denied that the complainant approached the guard and TTE in the said train. It is submitted that the complaint has been filed with GRP after lapse of 6days alleging, theft has been occurred or taken place in the said train on 21.2.2014. Further submits that on the said date, T.No.16532 was scheduled to depart from Bangalore City at 1700 hrs. It is no doubt true that when the train was about move, the ICC was pulled and the train was stopped. Immediately, thereafter within 03 minutes, the same was restored and the train had left the station. Infact on the said date, the guard of the train and TTE were available in the train. Neither did the complainant nor did her family members who were the Co-passengers; make any effort to lodge a complaint, with the other co-passengers in the coach as witness to the incident for the alleged snatching of the bag, which the complainant claims to containing valuables and cash worth around Rs.14 lakhs, with the guard or the TTE who were very much available in the train. If according to the complainant, any such incident as alleged in the complaint had occurred, there was no reason for the complainant to either register the complaint with guard or TTE. In this regard, Senior Divisional Commercial Manager, Bangalore had sought explanation of concerned guard and TTE to verify the veracity of the complaint.
5. The OP further submits that TTE and guard have submitted their explanation, wherein they have stated that on the said day ICC was pulled to accommodate the passenger and there was no information or any complaint with regard to the occurrence of any theft inside the train. Though the TTE was very much present and available in the train, neither the complainant nor her relatives have bothered to lodge any complaint. Further submits that the TTE started checking the tickets from S8 and after completing the checking of tickets in S8 and S9, when he came to S10, the complainant had informed and narrated the events leading to pulling of ICC. The complainant and her family members on the alleged date of journey came to the railway station late, when the train was about to depart in five minutes from Bangalore City and boarded the train. When the complainant realized that, they had left one of their belongings in the vehicle by which they came to be railway station, daughter of the complainant alighted from the train and ran towards the vehicle to get the luggage. In the meanwhile, when the train was leaving she came running and having realized that she would miss the train, the complainant and her family members pulled the ICC. However, the complainant having lost some luggage did not lodge any complaint to TTE and there was no occasion for the TTE to receive any complaint since the luggage was not lost in the train. Even from the version of the complainant, it is clear that the TTE did not refuse to receive any complaint. On the contrary, what complainant is alleging that the TTE had informed the complainant that a complaint could be filed within 30 days. Further submits that as rightly said the TTE in discharge of his duties has informed to register the complaint with the GRP, as the incident occurred outside the railway premises. Further, submits that the averments made to the affect that the TTE advised that the complaint could be filed within 30 days is misleading and said averment is made with a malafide intention to mislead this Forum.
6. The OP further submits that without prejudice to the contentions, even presuming that any such incident as alleged had occurred while the Complainant was travelling was in T.No.16532 on 21.2.2014, it is the Government Railway Police, which has the jurisdiction to investigate and inquire into the said complaint. In the instant case, even according to the Complainant, the Complainant had already lodged belated complaint on 27.2.2014 and the jurisdictional police have registered the FIR in Crime No.47/2014 under Sec 379 of IPC and the GRP are investigating the matter and even according to the Complainant, the said complaint is pending for investigation and as such, the above complaint is premature. It is submitted that in a case of theft of any article while in journey or any other place within the premises of Railways it is the GRP, which has the jurisdiction as it is the responsibility of the GRP to secure the safety of general public and passengers. In this regard, the State Government has also established a police station for the safety of the passenger and general public. Therefore, in view of division of powers to investigate and arrest the culprit it is the GRP, which alone has the jurisdiction to investigate and arrest and also to take care of the passengers in the train. Under these circumstances for the lapses on the part of GRP, the Railway cannot be held liable or responsible. Further, submits that it is the primary responsibility of the Complainant to secure her luggage and having failed to secure her luggage, the Complainant is attempting to put the blame on the Opposite Parties for her negligent act. It is common prudence that a person who is carrying gold worth about Rs.13 lakhs and cash of about Rs.90,000/- would take extra care in securing the same, however the Complainant having failed to secure the same is blaming the Opposite Parties for her negligent act. It is further submitted that as per the Sec 100 of the Railway Act, OP is not responsible to pay compensation which reads as under:
“Responsibility as carrier of luggage-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 any of its servants.”
It is submitted that neither the bag, which is alleged to have been forcibly snatched from the Complainant, was booked as luggage nor has the Complainant recorded a complaint with the on-board TTE or Guard with the witness of a Co-passenger or has submitted any documentary evidence to support that the alleged snatching of bag occurred due to negligence on the Railway staff. This goes on to show that the complaint has been filed with a malafide intention and with a concatenated story to mislead this Forum. On these grounds and other grounds prays for dismissal of the complaint.
7. The Complainant to substantiate her case, filed her affidavit evidence and got marked as Ex-A1 to A30. In support of her claim, the complainant’s husband, her son and her daughter filed affidavit evidence. The Opposite Party has also filed their affidavit evidence and produced documents. The Complainant as well as Opposite Party, filed their written arguments. Heard both sides.
8. The points that arise for our consideration are:
1) Whether the Complainant proves the deficiency in service on
the part of the OPs, if so, whether she is entitled for the relief
sought for?
2) What Order?
9. Our answers to the above points are as under:
Point No.1: Partly in the affirmative
Point No.2: As per the final order for the following
REASONS
10. POINT NO.1 : We have briefly stated the contents of the complaint as well as the version of the Opposite Party. The undisputed facts which reveals from the pleadings of the parties goes to show that the op has admitted Para-2 of the contents of the complaint stating that tickets were obtained to travel in Train No.16532, Garib Navaz Express on 21.2.2014 from Bangalore Railway Station to Falna by the complainan, fort herself, her husband, her mother-in-law and her daughter. The said tickets were the confirmed ticket in the compartment No.S10, seat Nos.33 to 36. It is also not in dispute that the departure time of the said train from Bangalore Central Railway Station was at about 5 p.m. in the evening. According to the case of the complainant, herself, her husband, her mother-in-law and her daughter boarded the said reserved berth. At about 5 p.m. in the evening, her husband had gone to wash his hands at wash basin. The Complainant had kept her handbag which is said to have been contained article No.i to x as stated in Para-5 of the complaint nearby her and finished her lunch. When she was picking up the drinking water bottle at that time the train started moving slowly. In that event, one person who was sitting in the upper berth, opposite to berth No.35 suddenly got down and forcibly taken away the hand bag of Complainant and got down from the train and ran off. The Complainant shouted as kalla kalla also her daughter Seema and both of them got down from the moving train and fell down, but nobody could catch the thief. The Complainant’s husband who was near the wash basin has pulled the chain of the train to stop it and the train was stopped after few minutes. The Complainant and her family members were shouted for help, but nobody come to their help. This fact has been complained to the TT who told they can give the complaint within one month from the date of the incident and they can proceed with the journey since all passengers are expressing their anger.
11. In respect of pulling of the train chain by the husband of the complainant is disputed by the OP. The say of the OP is that on the said date that was on 21.2.2014 Train No.16532 was scheduled to depart from Bangalore City at 1700 hrs. Further stated that it is no doubt true that when the train was about to move, the ICC was pulled and train was stopped. Immediately thereafter, within 3 minutes the same was restored and the train had left the station. Infact on the said date, the guard of the train and TTC were available in the train. So the fact of pulling the chain on the said date at about 5 p.m. is proved. Who has pulled the chain is the question that crop up for our consideration. According to the say of the OP, the chain was pulled to accommodate the passenger and there was no information or any complaint with regard to the occurrence of any theft inside the train. In our considered view, the ICC was pulled to accommodate the passenger as stated by the OP is appears to be afterthought since there is no any proper explanation offered by OP stating that ICC was pulled to accommodate the passengers. Hence, the contention taken by the complainant that the ICC was pulled by her husband when the said bag has been picked up by thief and fled away, cannot be ruled out.
12. Soon after the said incident, the complainant and her family members informed to the TT who entered into their cabin, but his response was to file the complaint within 30 days. When the complainant and her family members reached to Bombay, the complainant’s daughter returned to Bangalore by flight with one of her relative Jograj, wherein her brother Mahaveer was also present and approached the police with great efforts met the sub-inspector Valli Bangalore City Railway Police, who did not register the complaint. Then they approached the Dy.S.P. Bangalore City Railway Police Station who in turn has directed the sub-inspector valli to register the case. Accordingly, the case was registered on 27.2.2014 in Cr.No.47/2014 for the offence punishable under section 379 of IPC. According to the case of the complainant, there is negligence on the part of the OP since they have not taken proper care in the reserved bogie by not allowing strangers. Even after filing the complaint, there was no progress in the investigation and the said police have not traced the stolen articles as described in Para-5 of the complaint at Sl.No.i to x.
13. According to the case of the complaint, the values of the stolen articles are stated in Para-6 of the complaint which we have already extracted is reproduced hereunder:
1. | Los of cash | Rs.90,000/- |
2 | Loss of golden article weighing about 488 gms | Rs. 13 Lakhs |
3 | Making charges of the above referred golden articles at the rate of 13% | Rs.1,69,000/- |
4 | Nokia mobile | Rs.3,000/- |
5 | Flight ticket charges for the complainant’s daughter from Bombay to Bangalore | Rs.13,000/- |
6 | For expenses incurred for staying in Bangalore on 22.2.2014 to 27.2.2014 for getting the complaint registered. | Rs.12,000/- |
7 | For having visited the Bangalore City Railway police station for about 10 times after the registration of the case for follow up action | Rs.20,000/- |
8 | For mental agony | Rs.2,00,000/- |
9 | Litigation expenses | Rs.25,000/- |
| Total | Rs.18,32,000/- |
14. With regard to the value of the said golden articles are concerned, the complainant has placed reliance on the return of net wealth form-BA marked as Ex-A13 to A15 & A25. She has also produced approved valuer certificate in respect of the stolen ornaments issued by approved valuer marked as Ex-A22 and 23. The complainant also furnished her income tax returns verification form from 2012-13, 2013-14, 2014-15, 2015-16 marked as Ex-A26 to A29. In the said returns, the theft amount of Rs.90,000/- is also shown in Ex-A29. On perusal of these documents, it is evident that the complainant has possessed the said articles including cash of Rs.90,000/- as stated in Para-5 of the complaint at Sl.No.i to x.
15. Now we would like to ascertain what is total weight of the said golden ornaments. According to the case of the complainant, the total weight of the golden articles weighing 488 gms worth about Rs.13,00,000/- as on the date of filing the complaint. The complainant produced some of the photographs to show that she owned and possessed the said gold articles. Why the complainant has put the said gold mangalya chain weighing about 70 grams in the said bag? In this context, there is no proper explanation offered by the complainant. We are of the opinion that in the Indian culture, no married women remove her mangalya chain and kept in the bag that too in the presence of her husband. In this context, we are of the opinion that the said mangalya chain worn by the complainant at the time of journey was found to be on her neck. So out of 488 grams of the golden ornaments , the weight of the mangalya chain weighing about 70 grams is deducted which comes to 418 grams.
16. This incident was took place on 21.2.2014. In the month of February 2014 as per the Google website wherein the rate of 24 karat gold was shown as Rs.2508/-. For making the golden ornament, 24 karat gold usually not used by the gold smith. For such purpose invariably the gold used is in between 18 to 22 karat. In this context, we have taken the value of the said golden ornament at sl.no. ii to v and vii and viii at the rate of Rs.1900/- per gram as 22 karat gold is less than the value of the 24 karat gold which comes to 418 x 1900= Rs.7,94,200/-. Nodoubt, these golden ornaments are belongs to the complainant and carrying in the bag while travelling in the said train. With regard to the making charges of Rs.1,69,000/- at the rate of 13%, we are of the opinion that there is no any pleading by the complainant with whom she placed an order for making the said ornament. It appears that she might have purchased from the jewelry shop. The making charges includes in the net price of the said articles. Hence, the making charges cannot be taken into consideration.
17. With regard to the nokia mobile, since it is an electronic device there is no any resale value. With regard to the aadhar card, voter ID, driving license of complainant’s husband are to be secured by way of filing an application citing the reasons being stolen.
18. The Ops have specifically taken the contention stating that the Complainant and his family members on the alleged date of journey came to the railway station at late, when the train was about to depart in 5 minutes from Bangalore City and boarded the train. When the Complainant realized that they had left one of their belongings in the vehicle by which they came to the railway station, daughter of the Complainant alighted from the train and ran towards the vehicle to get the luggage. In the meanwhile, when the train was leaving, she came running and having realized that she would miss the train, the Complainant and her family members pulled the ICC. However, the Complainant having lost some luggage did not lodge any complaint to TTE and there was no occasion for the TTE to receive any complaint since the luggage was not lost in the train. But in another version, OP has taken the contention in Para-10 of its version stating that the TTE and Guard have submitted their explanation, wherein they have stated that on the said day ICC was pulled to accommodate the passenger and there was no information or any complaint with regard to the occurrence of any theft inside the train. Looking to this divergent contention, we are of the opinion that the said contention taken by the OP stating that on the said day ICC was pulled to accommodate the passengers is appears to be imaginary. Further the complainant have left one of their belongings in the vehicle by which they came to the railway station, daughter of the Complainant alighted from the train and ran towards the vehicle to get the luggage is concerned, who has given this information to the OP is not explained. According to the case of the complainant, she and her family members came from Mysore to Bangalore in Tippu Express train and reached Bangalore Railway station at about 2.15 pm in the afternoon i.e. before 2 hours 45 minutes from the departure time of Garib Navaz Express. So the contention taken by the Ops are quite contradictory. Hence, theft of the said hand bag which had kept near the husband of the complainant wherein she was sitting in the reserved compartment cannot be ruled out.
19. Now the question crop up for our consideration is, whether the complainant is entitled for the relief sought for. It is the specific case of the complainant that the theft has been committed in the reserved bogie and the OP has not provided the proper security. Hence, OP is liable to pay compensation of Rs.18,32,000/-. In support of her claim, she relied on the following decisions which are:
1) AIR 2004 SC 2368 in the case of Sumatidevi M.Dhanwatay V/s Union of India (UOI) and Ors. Wherein it is held as hereunder:
Consumer Protection Act, 1986-Sections 3 and 12-Railways Act, 1989-Section 124A-Negligence-Deficiency in service-Complainant appellant travelling in first class air-conditioned coach Railway train-while travelling, assaulted by some unauthorized passengers-And her gold, silver, pearl, diamond and other valuables taken away forcibly-State Commission partly allowed her claim and awarded compensation of Rs.1,41,756- National Commission upsetting order of State Commission-Whether justified?- Held, no-State Commission recorded that Railway administration failed to take precaution and preventive measures-under section 124A of Railways Act, Railway administration cannot escape its liability-No good reason given by National Commission to upset order of State Commission.
2) Copy of the order passed by National Commission in R.P.No.3574/2007 in the case of General Manager, South Central Railway & Ors., V/s Jagannath Mohan Shinde
3) AIR 1963 SC 422 in the case of Union of India V/s M/s Udho Ram & Sons wherein it is held as under:
The loss of goods in transit took place due to the negligence of the railway servants and consequently of the railway administration.
4) I (2004) CPJ 114 (NC) in the case of Southern Eastern Railway V/s Ku.Bharati Arora wherein it is held as under:
Consumer Protection Act, 1986-Section 2 (1)(g)-Railways Act, 1989-Sections 53 and 100-Railway Services-Suitcase stolen by miscreants from reserved compartment -Chain not working, train could not be stopped-Forum held Railways deficient in services as no hooks provided for safety of luggage, passengers and property not protected in reserved compartment-Appeal against order dismissed-Compensation enhanced-No interference required in revision.
5) (2008) CPJ 370 (NC) in the case of Bala Chandrakant V/s Northern Railway wherein it is held as hereunder:
Consumer Protection Act, 1986-Section 2 (1)(g) and 14 (1)(d)-Railway Services-Ornaments snatched from moving train-person standing on footboard of adjacent exit door snatched ornaments through window-Deficiency in service alleged-compensation of Rs.5,000 awarded by State Commission-Hence revision-Weight of lost ornaments not disputed-complainant held entitled to consolidated award of Rs.25,000-Order modified accordingly.
6) III (2013) CPJ 469 (NC) in the case of Union of India V/s Dr.Shobha Agarwal wherein it is held as hereunder:
Consumer Protection Act, 1986-Sections 2(1)(g), 14(1)(d), 21(b)-Railways-Theft in AC second class-Suitcase stolen by cutting chain and lock-Loss of valuables-Deficiency in service- Negligence on part of railway administration-Compensation-District Forum allowed complaint-State Commission dismissed appeal-Hence revision-Complainant and her daughter were travelling in reserved coach and it was duty of TTE to ensure that no intruders entered reserved compartment-Failure on part of TTE to prevent entry of unauthorized person in coach during night-Deficiency in service proved-Compensation awarded.
7) IV (2005) CPJ 57 (NC) in the case of G.M., South Central Railway V/s R.V.Kumar & Anr. Wherein it is held as under:
Consumer Protection Act, 1986-Section 2(1)(g)-Railway Claims Tribunal Act, 1967-Sections 13 and 15-Railways Act-Section 100-Railway Services-Theft in reserved compartment-Negligence on part of railway administration, Railway Police and Railway Protection Force Proved-Contention, Railways not responsible for any loss of personal luggage, unless it is handed over to Railways-Contention not acceptable-Passenger travelling by train entitled to carry luggage within permissible limits-No question of entrusting such luggage to Railway and getting a receipt thereof-Railways responsible for any loss, provided negligence on part of Railways or its servants proved-Complaint allowed by lower For a-Order upheld in appeal-No interference required in revision.
(ii) Distinction-‘Goods’ and luggage’-discussed in Union of India & Ors. V/s Sanjiv Dilsukhrai Dave & Anr., (R.P. No.1590 of 2000 decided on 23.10.2002)
8) IV (2014) CPJ 198 (NC) in the case of Union of India & Anr., V/s Anjana Singh Chauhan wherein it is held as under:
Consumer Protection Act, 1986-Sections 2(1)(g), 14(1)(d), 21(b)-Railways-Theft in Coach-Loss suffered-Liability of TTE-Deficiency in service-District Forum allowed complaint-State Commission dismissed appeal- Hence revision-Existence of remedy provided by sections 13 and 15 of Railway Claims Tribunals Act, 1987 did not take away jurisdiction of consumer courts to decide question of deficiency of service-complainant herself being employee of railway department; raised her voice against safety concerns of her own administration-She has lost her hard earned money, jewellery, cash, mobile phones, etc.-TTE has failed in performance of his duties which led to incident of theft-deliberate attempt by Railways to harass its own employee-Impugned award upheld-Punitive costs @ Rs.10,000 imposed.
9) I (2003) CPJ 72 (NC) in the case of Union of India & Ors., V/s Sanjiv Dilsukhrai Dave & Anr., wherein it is held as under:
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-Interest reduced to 9%.
20. We place reliance on the said decisions. The judgment at Sl.No.1 is the judgment of the Hon’ble Supreme Court wherein the complainant was travelling in first class air-conditioned coach Railway train while travelling, assaulted by some unauthorized passengers and her gold, silver, pearl, diamond and other valuables taken away forcibly. Hence, compensation was awarded. In the second unreported decision in R.P.No.3574/2007 in the said case, the judgment of the Hon’ble Supreme Court in Sumathidevi case has been referred. In the said case, the fact was that ornament was kept in the bag which was tied with a chain to the lower berth rod. But it was found that the bag of the complainant which they had secured with a chain was untied and golden ornament and cash worth Rs.1,31,000/- was missing. Hence, Hon’ble National Commission come to the conclusion that there is a deficiency of service on the part of the Railways. In the 3rd decision reported in AIR 2013 is respect of goods transit. But in the instant case, the bag is missing so fact of the said case is different to the present case on hand. In the 4th decision, suitcase stolen by miscreants from reserved compartment, chain not working, train could not be stopped, Forum held Railways deficient in services as no hooks provided for safety luggage, passengers and property not protected in reserved compartment. Hence, compensation has been awarded. In the instant case, it is not the case of the complainant that chain was not working. The train could not be stopped. The judgment at Sl.No.5 is in respect of snatching of the ornament through window in a moving train. In the instant case, there was no snatching of the said bag from the complainant. But it was lifted when it was unattended by the complainant much less her family members. The judgment at Sl.No.6 is in respect of suitcase stolen by cutting chain and lock. Hence, deficiency has been proved. But in the instant case, it is not such a case. The judgment at Sl.No.7 is in respect of distinction on goods and luggage and it is permissible limit and railway authorities not made to stop the train. The judgment at Sl.No.8 is in respect of jurisdiction. In the said judgment, it is held that existence of remedy provided by sections 13 and 15 of Railway Claims Tribunals Act, 1987 did not take away jurisdiction of consumer courts to decide question of deficiency of service. The judgment at Sl.NO.9, in the said case, the luggage stolen from reserved compartment in night. Hence compensation was awarded.
21. In the instant case, there was no any physical force on the complainant while committing theft of the said bag. Further the said incident was took place at 5 pm. When the train was about to move, at that time, one person who was sitting in the upper berth which was, opposite to berth No.35, suddenly got down and forcibly taken away the hand bag of complainant and got down from the train and ran off. According to the case of the OP, the TTE started checking the tickets from S8 and after completing the checking of tickets in S8 and S9, when he came to S10, the complainant had informed and narrated the events leading to pulling of the chain. At that time, what prevented the complainant to file the complaint before GRP, is not specifically explained.
22. Looking to the entire judgments including the judgment of the Hon’ble Supreme Court, one thing is clear that in the event of physical force and also in respect of non-taking proper care, if theft has been committed, railway department is liable to pay compensation. In the instant case, the theft has been committed at 5 p.m. that too in the day time. We have already stated that the complainant was carrying her luggage as described in Para-5 Sl.No. i to v, vii to x. It is also not in dispute that she was proceeding in the said train from Bangalore to Falna Railway Station to attend the marriage of her husband’s uncle daughter. While travelling such a distance, one will have to take proper care in respect of the valuable articles carrying in hand bag. The modus-Operandi of the thieves in the crowded railway station like Bangalore, watching the passenger’s body language, their luggage and also their way of travel. If the passengers who are travelling to a long distance, they ought to have taken proper care putting the valuables in the suitcase by putting the lock and also kept beneath their seat tied with a chain to the rod. Further, the railway has made provisions, for the security of the passengers who carry valuables or gold articles, can book the golden articles by paying requisite charges u/s 1101, chapter 11 of Indian Railway Commercial Manual Vol.I. In the instant case, the complainant has not booked the said golden ornaments with the railways and no such charges were paid, nor the said valuable were entrusted to the Railways.
23. In the instant case, even though there is negligence on the part of the OP equally there is negligence on the part of the complainant in not properly taking care of the said articles at Sl.No.ii to v, vii to viii kept in the bag. If the complainant would have been very diligently, she ought to have keep the said articles in a suitcase by putting lock and also tied by chain in the said compartment. But she did not so. In Para-5, the complainant specifically stated that “ at about 5 pm in the evening, the complainant’s husband had gone towards wash basin to wash his hands. The complainant had kept her hand bag nearby her, finished her lunch. When she was picking up the drinking water bottle, at that time, the train started moving slowly. At that time, one person who was sitting in the upper berth which was opposite to berth No.35, suddenly got down and forcibly taken away the hand bag of complainant and got down from the train and ran off. So the question of forcibly taken away the hand bag of the complainant does not arise. Even she did not inform her husband to take care of the said bag. It seems that the said bag was unattended.
24. It is also evident that there is an inordinate delay for about 9 days in filing the complaint before the police. According to the case of the complainant, the concerned TTE did not respond. Assuming for a moment that TTE did not respond, what prevented the complainant immediately sent a complaint either by E-mail or by text messages to the concerned police, as the complainant and her family members appears to be educated, but they did not do so. If these facts are taken into consideration, the complainant is also equally negligent on her part in addition to the negligence on the part of the OP. So in the amount of Rs.7,94,200/- being the value of the golden articles at Sl.No.ii to v, vii and viii, out of which, the complainant is entitled for Rs.3,97,100/- being 50% of the amount out of Rs.7,94,200/-. With regard to the cash amount of Rs.90,000/-, 50% comes to Rs.45,000/-. In all Rs.3,97,100 + 45,000= Rs.4,42,100/-
25. With regard to the flight ticket of Rs.13,000/- from Bombay to Bangalore for the daughter of the complainant and Jograj, the expenses incurred for staying in Bangalore on 22.2.2014 to 27.2.2014 in respect of filing the complaint and also for visiting the Bangalore City Railway Police Station for about 10 times, spent an amount of Rs.12,000/- and 20,000/- respectively, and with regard to the mental agony of Rs.2,00,000/-, in this context, we are of the opinion that if the complainant being diligent in filing the complaint well within the time, spending of an amount of Rs.13,000/- for flight ticket and spending an amount of Rs.12,000/- and Rs.20,000/- to visit Bangalore, does not arise. Hence, we are declined to order to pay this amount by the OP to the complainant. With regard to an amount of Rs.2,00,000/- being the mental agony is concerned, we are of the opinion that if the complainant is very diligent to take proper care and custody of the said golden ornaments, the said incident would not happened. Hence, we are declined to order to pay an amount of Rs.2,00,000/- in the form of mental agony. Anyhow, we fix an amount of Rs.5,000/- being cost of litigation. Accordingly, this point is answered partly in the affirmative.
26. POINT NO.2: In the result, we pass the following:
ORDER
The complaint filed by the Complainant is allowed in part. The Ops are directed to pay Rs.3,97,100/- + 45,000/- = Rs.4,42,100/- to the complainant towards the cost of the golden articles shown at Sl.No.ii to v, vii to viii of the complaint and 50% of the cash out of the amount shown at Sl.No.I in the complaint.
Further, the Ops are directed to pay an amount of Rs.5,000/- being the cost of the litigation. The rest of the other claims of the complainant are hereby rejected.
The Ops are directed to comply this order within 6 weeks from the receipt of this Order. Failing which, the Complainant is at liberty to take proper steps as per law.
Supply free copy of this order to both the parties.
(Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 4th September 2018).
(ROOPA.N.R)MEMBER |
(S.L.PATIL) PRESIDENT |
- Witness examined on behalf of the complainant/s by way of affidavit:
Smt.Ramila Devi, who being the complainant was examined.
Shanthilal, husband of the Complainant filed affidavit
Mahaveer, son of the Complainant filed affidavit
Seema, daughter of the complainant filed affidavit.
Copies of Documents produced on behalf of Complainant/s:
Ex-A1 to A30
| Wedding card |
Railway reserved ticket | |
Copies of railway tickets for having travelled form Mysore to Bangalore | |
Photographs of jewels | |
Copy of the IT returns for the year 2012-13 and 2013-14 | |
Railway ticket of Mahaveer | |
Flight ticket and boarding pass | |
FIR and complaint | |
Railway ticket | |
Details of jewellery & ornaments | |
Wealth tax returns |
2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:
Dr.Anup Dayanad Sadhu, Senior Divisional Commercial Manager, who being OP was examined.
Sridharmurthy N.S., Senior Divisional Commercial Manager, also filed affidavit
Copies of Documents produced on behalf of OP
Doc-1 | Extract of rough journal |
Doc-2 | Original rough journal book |
(ROOPA.N.R)MEMBER | (S.L.PATIL) PRESIDENT
|
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