Punjab

Faridkot

CC/16/102

Anupama Sharma - Complainant(s)

Versus

General Manager - Opp.Party(s)

Ashu Mittal

01 Nov 2016

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :       102

Date of Institution:   21.04.2016

Date of Decision :    01.11.2016

Anupama Sharma aged about 55 years w/o Naresh Sharma r/o 1404, Park View Apartment, Sector 29, Noida (Uttar Pradesh) through her special attorney Daksha Mohan w/o Rajat Mohan c/o Military Head Quarter 634 C, Faridkot Cantt, District Faridkot.

                                                            .......Complainant

Versus

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

2. Northern Railway through Divisional Manager, Ferozepur.

3. Station Superintendent, Railway Station, Faridkot.

   ........OPs

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh Ajit Aggarwal, President,

   Sh P Singla, Member.

    

   Present:      Sh Ashu Mittal, Ld Counsel for complainant,    

                     Sh Sandeep Khosla, Ld Counsel for OPs.

                     

    (Ajit Aggarwal, President)

                            Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to pay the amount of Rs.4,50,000/- as price of stolen articles alongwith Rs.2,00,000/- as compensation for mental agony and harassment and financial loss to complainant besides litigation expenses.

   2                              Briefly stated, the case of the complainant is that complainant got booked two seats PNR No.8456403516 in the Punjab Mail Train No. 12137 and paid for reservation of seats. It is submitted that complainant started her journey alongwith her daughter from Delhi to Faridkot and occupied their reserved seats bearing no. 23  and 1. It is further submitted that complainant was carrying a hand bag, which contained her important articles like Debit Cards, Credit Cards, DL, Photographs etc alongwith cash of about 40,000/- and gold articles like locket and ear rings with pearl chain. All the articles were worth Rs.4,50,000/-. It is further submitted that train started from Delhi at about 11.00 pm and when  train reached between Narvana and Jhakhal, complainant got up and found that her hand bag was stolen by someone. She immediately tried to find out the coach attendant, but he was not there and then, she informed one RPF employee in train and he gave the complainant information report. Thereafter, on reaching Faridkot, complainant and her daughter got registered FIR and same was sent to concerned Police Station through Ambala. Complainant made many requests to them to find out her stolen articles, but all in vain. There is gross negligence on the part of OPs in not performing their duty properly. All this act and conduct of OPs amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and financial loss to complainant for which she is entitled for compensation and litigation expenses besides main relief. Hence, the present complaint.

   3                                         The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 26.04.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

   4                                       On receipt of notice, OPs appeared in Forum through Counsel and filed reply taking legal objections that there is no deficiency in service on the part of answering Ops. It is averred that alleged bag was not booked with Railways and Railway Department is not responsible for the theft of same. Complainant has concocted a false story and has planned to make wrongful gain from OPs. moreover, complaint can not be decided in summary procedure of Consumer Court and facts given in complaint are required to be decided by Civil Court and thus, it should be referred to Civil Court. It is further averred that  this Forum has no jurisdiction to decide the present complaint as jurisdiction to try such cases, lies with Railway Claims Tribunal. Present complaint is outcome of alleged offence by some thief, who stole the hand bag of complaint and thus, complainant is not entitled to recover the loss from OPs. Moreover, FIR lodged by complainant is still under investigation and thus, complaint in hand is premature and is therefore liable to be dismissed being non maintainable. It is asserted that complainant herself alleged in complaint that said theft occurred in the jurisdiction of P.S.Jakhal, District Fatehbad in the state of Haryana and therefore, this Forum has no jurisdiction to decide the present complaint. However, on merits, OPs have denied all the allegations of complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering Ops. It is asserted that complainant has not provided the photo copy of railway ticket to Ops in which they have allegedly travelled. It is also denied that complainant was having a hand bag, which contained articles worth Rs.4,50,000/-. Story made by complainant is fabricated one and is totally false. Complainant has not suffered any loss due to OPs and complainant is not entitled to recover the claim amount or damages from OPs. All the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with special costs.

5                                           Parties were given proper opportunities to prove their respective case. Ld Counsel for complainant tendered in evidence affidavit of complainant as Ex.C-1 and documents Ex C-2 to C-26 and then, closed the same on behalf of complainant.

6                                              In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Roshan Singh as Ex OP-1, document Ex OP-2 and then, closed the evidence on behalf of OPs.

7                          Ld Counsel for complainant has argued that complainant got booked two seats PNR No.8456403516 in the Punjab Mail Train No. 12137 and paid for reservation of seats. It is submitted that complainant started her journey alongwith her daughter from Delhi to Faridkot and occupied their reserved seats bearing no. 23 and 1. It is further submitted that complainant was carrying a hand bag, which contained her important articles like Debit Cards, Credit Cards, DL, Photographs etc alongwith cash of about 40,000/- and gold articles like locket and ear rings with pearl chain, all were worth Rs.4,50,000/-. It is further submitted that train started from Delhi at about 11.00 pm and when train reached between Narvana and Jhakhal, complainant got up and found that her hand bag was stolen by someone. She immediately tried to find out the coach attendant, but he was not there and then, she informed one RPF employee in train and he gave the complainant information report. Thereafter, on reaching Farikdot, complainant and her daughter got registered FIR and same was sent to concerned  Police Station through Ambala. Complainant made many requests to them to find out her stolen articles, but all in vain. There is gross negligence on the part of OPs in not performing their duty properly. Complainant has prayed for accepting the present complaint and has stressed to consider the documents Ex C-1 to 26.

 

8                                             Ld Counsel for OPs argued that all the allegations levelled by complainant on OPs are wrong and incorrect and there is no deficiency in service on the part of OPs. It is averred that there is no deficiency in service on the part of answering Ops. Alleged bag was not booked with Railways and Railway Department is not responsible for the theft of same. Complainant has concocted a false story and has planned to make wrongful gain from OPs. It is argued that complaint can not be decided in summary procedure of Consumer Court as facts given in complaint are required to be decided by Civil Court and thus, it should be referred to Civil Court. It is further averred that this Forum has no jurisdiction to decide the present complaint as jurisdiction to try such cases, lies with Railway Claims Tribunal. Present complaint is outcome of alleged offence by some thief, who stole the hand bag of complaint and thus, complainant is not entitled to recover the loss from OPs. Moreover, FIR lodged by complainant is still under investigation and thus, complaint in hand is premature and is therefore liable to be dismissed being non maintainable. It is asserted that complainant herself alleged in complaint that said theft occurred in the jurisdiction of P.S.Jakhal, District Fatehbad in the state of Haryana and therefore, this Forum has no jurisdiction to decide the present complaint. OPs have denied all the allegations of complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering Ops. It is further argued that complainant has not provided the photo copy of railway ticket to Ops in which they have allegedly travelled. It is also denied that complainant was having a hand bag, which contained articles worth Rs.4,50,000/-. Story made by complainant is fabricated one and is totally false. Complainant has not suffered any loss due to OPs and complainant is not entitled to recover the claim amount or damages from OPs. There is no deficiency in service and trade mal practice on the part of OPs and they have prayed for dismissal of present complaint.

9                                           We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the file.

10                                      The case of the complainant is that on 5.05.2015, she was travelling alongwith her daughter from Delhi to Faridkot through Punjab Mail in reserved compartment. During the journey, her bag containing valuable articles and cash was stolen by some unknown persons from reserved compartment. She immediately lodged complaint with Railway Authorities and the Police officials escorting in the train and also lodged FIR with Police at Govt Railway Police Station, Hissar and Faridkot. To prove her case, she produced copy of information to Train Escort Party as Ex C-15, copy of statement of complainant and her daughter recorded by Train Escort Party as Ex C-3 and 18, copy of DDR no. 27 dated 5.05.2015 recorded by GRP, Faridkot as Ex C-13, copy of FIR No. 68 dated 7.05.2015 as Ex C-12, copy of SMS sent by Railway Department regarding registration of complaint by complainant regarding theft as Ex C-21. On the other hand, OPs raised objection that alleged hand bag of complainant was not booked with them and theft of unbooked articles is not the responsibility of Railway Department. The present complaint is an outcome of alleged theft by some thieves and complainant is not entitled to recover the loss of these articles from OPs, rather it is to be recovered from offenders. 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 – 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. He 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 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 – Legality of – Plea that complainant carried article without booking, thus, not entitled to compensation is not tenable – Railway administration has responsibility to provide security to passenger travelling in reserved compartment and prevent entry of unauthorised person – Failure to do so amounts to deficiency in service – Interference declined.

11               The Ld Counsel for OPs argued that Consumer Forum has no jurisdiction to try any such like disputes. Jurisdiction to decide such like disputes is with  Railway Claims Tribunal and not with District Forum. On this point, the complainant further put reliance on citation ( I ) 2003 CPJ 72 (NC) titled as Union of India & Ors Vs Sanjiv Dilsukhrai Dave & anr, wherein our National Consumer Disputes Redressal Commission, New Delhi held that  Railway Claims Tribunal Act, 1987-Sections 13, 15- Jurisdiction –Absence of entrustment of luggage, Railway Claims Tribunal has no jurisdiction to entertain dispute – Loss of luggage not covered under Section 13-Jurisdiction of general Courts not barred. He further placed reliance on citation (III)2003 CPJ page 1 titled as Deputy Chief Commercial Manager, Eastern Railways & Anr Vs Dr K K Sharma & Ors wherein our National Commission held that “existence of remedy provided by Sections 13 and 15 of the Railway Claims Tribunal Act, 1987 did not take away the jurisdiction of the Consumer Courts to decide the question of deficiency in service. The Consumer Courts can not sub plant the jurisdiction of the Railway Tribunals or any other judicial or quasi judicial body but can supplement the jurisdiction of these bodies in appropriate cases. It provides an additional remedy to a consumer”

12                        Ld Counsel for OPs further argued that as per version of complainant the incident took place between Narvana and Jakhal, district Fatehabad in the State of Haryana and this Forum has no jurisdiction to decide the present complaint. On it, ld counsel for complainant argued that complainant was travelling from Delhi to Faridkot and she booked her ticket with Railways from Delhi to Faridkot. The incident took place in running train. She had to complete her journey at Faridkot and she lodged FIR with GRP, Faridkot so, part of action arose at Faridkot. He put reliance on citation (1)1998  C.P.C.449 titled as Union of India Vs Surjit Singh Sood, wherein our Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh held that Consumer Protection Act, 1986, Section 11-Territorial jurisdiction – Railway journey –Journey was to be performed from Delhi to Jullundur – Penalty of Rs.50/- was illegally charged from the complainant while issuing ticket at Delhi – A part of cause of action having arisen at Jullundur, District Consumer Forum, Jullundur has rightly exercised its jurisdiction in the case.

13                                        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 unauthorised 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”.

                                        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. The arguments of the OPs that the rules nowhere provide that there should be a TTE for each sleeper coach can not be accepted because, then, the impressive list of duties which would remain only on the paper, since they can not be effectively enforced. 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 unauthorised entry – Basic safety and security precautions not taken by staff – Complainant entitled to compensation.

14                                            From the above discussion, we are of considered opinion that in instant case the Railway Department failed to prevent such unauthorised person to enter the reserved compartment. In view of above, we find that there is deficiency in service and negligence on the part of OPs in not providing requisite safety and security to reserved compartments. Hence, present complaint is hereby allowed. Now, the question remained that what amount of compensation is to be awarded as complainant has demanded Rs. 4.50 lakhs as price of stolen articles and compensation to the tune of Rs. 2 lakhs, whereas in the information given to Govt Railway Police and FIR lodged with Police, they claimed the price of stolen items to the tune of Rs. 2,60,000/-and Rs.40,000/-cash. We are of considered opinion that value of stolen articles mentioned in the FIR recorded on the spot is correct and value stated in the complaint is excessive and afterthought. So, we consider that value of stolen articles to the tune of Rs.2,60,000/-and cash of Rs.40,000/- i.e total of Rs.3,00,000/-. So,  the OPs are directed to pay Rs. 3,00,000/- to complainant as value of stolen property alongwith interest at the rate of 9% per anum from the date of filing the present complaint i.e 21.04.2016 till final realization. OPs are further directed to make payment of  Rs. 20,000/- as compensation on account of harassment and mental agony suffered by him and Rs.5,000/-as litigation expenses.   The   OPs   are   directed   to   comply   with   the  order  within   a   month   from  the  date  of  receipt  of  the  copy   of  the   order,  failing  which  complainant shall be entitled to initiate  proceedings  under   section 25 and 27 of the Consumer Protection Act. Copy of this order be supplied complainant as well as Opposite parties free of costs as per rules. File be consigned to record room.

 Announced in open Forum:

  Dated: 01.11.2016        

Member                President                  (P Singla)                  (Ajit Aggarwal)