JUDGEMENT

          Complainantby filing this complaint has submitted thatbeing a retired teacher as Senior Citizen went out for a tour to North India with his family from the period from 26.10.2011 to 11.11.2011 with the assistance of travelling agent Sristi-r-Duniya and on completion of tour he and his family members boarded Jammu Tawai – Varanasi Begampura Express (Train no. 12238; PNR 270-6146187) from Ambala Cantonment on 09.11.2011 having reservation in sleeper coach no.S-4 (seat nos.65-69) and when the train reached the platform they found that both the doors of S-4, S-3, S-1 & S-2 were completely locked from inside and the coach was full with unreserved passengers.  So, his family consisting 5 members were completely at a loss in that situation as to how they shall have to get chance to enter into the said coach along with one trolley bag, 2 VIP bags, 2 big bags and 5 hand bags.

          But somehow or otherwise they boarded the said train through S-5 coach which was occupied by the unreserved passengers in sleeper class also and when the matter was brought to the notice of the patrolling police personnel they replied “Diwali Hai Hum Keya Karega” and under this situation his son-in-law somehow managed to put 8 of his luggage in the train and when tried to locate the balance bags for bringing them in the said coup, they found that 3 luggage were missing.  In the meantime the train was moving and finding no other alternative his son-in-law asked the inside passengers to pull him inside and he was brought into the train being a reserved passenger against booked ticket.

          Next day they reached Varanasi and lodged FIR with Varanasi station GRP and after some refreshments they boarded their reserved compartment of S-1 of Vibhuti Express from Varanasi (being PNRNo.266-6117243) with seat nos.17-21 at about 06:25 PM.  It was mostly undisturbed journey up to late night when after taking dinner they were in their respective seats for rest at night before reaching Howrah.  The inner atmosphere was peaceful, but at about 02:00 AM his son-in-law woke uphaving various sounds within the compartment and came down from the berth for drinking water and found that their luggage were lying intact.  But in the morning at about 06:00 AM when they woke up they found that 1 trolley bag and 2 VIP bags kept under their seats containing dresses, woolen garments, identity proof, credit cards, ATM cards, cash of Rs.11,500/- were missing.

          In such a situation their mental conditions were shattered.  So, they again lodged FIR with Howrah GRP Police Station and they returned home and locked all of their credit cards excepting the debit card of his daughter.  But at about 12:00 noon they went to UBI, customer care and the card was not listed and subsequently they prayed for duplicate card to UBI Manager but in the meantime it was found that Rs.25,000/-  was withdrawn.

          In fact total loss was more thanRs.62,000/- and fact remains for negligence and deficient manner of service of the Indian Railways the entire incident took place and it is the responsibility of the Railway Authority to provide security, safety and reliability to reserved passengers during their journey and in the above circumstances complainant has prayed for compensation for the negligent and deficient manner of service and security of the sleeper coaches  at night to be provided by the Indian Railway and prayed for redressal.

          On the other hand op by filing written statement submitted that op nos. 1 to 4 arebeyond the jurisdiction of the Ld. Forum, Kolkata and the alleged cause of action did not arise within the territorial jurisdiction of the Ld. Forum and op did has also alleged that the present complaint is not maintainable as this Forum has no jurisdictionand they have denied all the materials allegations of the complaint.

          Further they have submitted that the Railway Police of Haryana and GRPs Howrah are necessary parties in this case in both the stations they lodged FIR.  Further it is submitted that as per provision of Section 100 of Railways Act 1989 a railways administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless a railway servant has booked the luggageand 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 and the complainant did not book his luggage in Railway and in the instant case the complainantis not entitled to get any relief as per provision of Section 100 of Railways Act 1989.

          It is further submitted that Ambala Cantonment is a junction station where ticket checking staff is manning the reserved coaches of the train in question on that date and also new crew members of ticket checking staff boarded the train and took over the charges of the train at AmbalaCantt. Stationreplacing the ticket checking staff who manned the train up to AmbalaCanttEx Jammu Tavi.

          Further it is submitted that it is not possible for a staff or passenger in a closed/jam coach to give any help.  But no other complaint in this regard had been lodged by the complainant at forwarding or destination station nor with the coach conductor and it is further submitted that the train halted on platform at AmbalaCantt for about 18 minutes and the ticket checking staff was standing in front of the doors of coaches and also available inside the train during journey.

          Further it is submitted that on scrutiny of passengers list of the complaint, it is observed that there were total 6 passengers were travelling on the ticket including two senior citizen, one lady and one girl child of 6 years old.  There was only two young persons  who had to look after the old couple, one baby, one lady and heavy luggage of 11 bags etc.  but as per GRP complaint at Police Station Varanasi they did not lodge any complaint for theft but it was reported missing and that matter is under the control of the State Government of Haryana not Railway Administration and in the present case it is found that the complainant faced loss in respect of their belongings for their own negligence and there was no deficiency on the part of the Railway.  So, question of compensation cannot be awarded in favour of the complainant.

          Further it is submitted that the complainant is bound to substantiate the allegation by adducing legal evidence and ops have denied the entire allegations of the complainant and submitted that Jammu-Tawai-Varanasi Begampura Express was not full with unreserved passengers on 09.11.2011 when it reached at Ambala Cantonment Railway Station and the present op is not liable for that and the complaint should be dismissed.

Decision with reasons

          On proper study of the complaint and the written version and also the nature of defence as made by the op Railways Authority it is found that it is undisputed fact that the complainant along with his family was returning from Ambala to Howrah and it is also undisputed fact that on 09.11.2011 complainant along with his family members withluggage boarded in Jammu-Tawai-Varanasi Begampura Express and no doubt it reached at AmbalaCantt Railway Station on that date and admitted fact is that they have their reserved tickets in sleeper coach.  It is also admitted by the op that after that the said train reached at Varanasi and thereafter they boarded their reserved compartment S-1 of Vibhuti Express from Varanasi (being PNR No.266-6117243) with seat nos.17-21 and it is also admitted fact that they returned to Howrah by that Vibhuti Express but in the meantime from the sleeper coach at night their all bags were stolen which was detected just on entry of the train in the Howrah Station.

          About loss of luggage during journey from Varanasi to Howrah there is no denial that it was not lost.  But in this case practically the whole defence of the Railways is that the Railway Authority has not responsibility as carrier of the luggage of the complainant as per provision of Section 100 of the Railway Act 1989 on the ground the responsibility for carriage of luggage has always been defined separately from goods and this is because luggage can be carried in charge of the passenger himself and Railway Administration or its employees did not take charge of it and for obvious reasons Railway Administration cannot be held responsible for loss or damage etc. if luggage is not in op’s custody and another reason is the definition of luggage from the goods as per the Railways Act, is that all luggage carried by railway need not to be booked by the passengers.  Since the first Railways Act 1954 the railways had no responsibility if the luggage were not booked but it was responsible for all the booked luggage until in 1989 and extension was made in respect of such booked luggage as was carried in charge of passenger and the booked luggage obviously make the company liable only for the luggage entrusted to it in carriage not for the luggage which a passenger choses to keep in his own custody.

          In fact Ld. Lawyer for the op submitted in view of the above definition and also the different decision of the different High Courts the Railway is not responsible in respect of luggage which a passenger chose to keep up his own custody and no doubt in this case all the luggage were in the custody of the passenger and it was not booked and it was never handed over to the Railways to take charge of the security and for return of the same after arrival of the destination.  So, apparently as per provision of Section 100 of Railway Act 1989 it is not the responsibility of the Railway Authority and practically Ld. Lawyer for the op relied upon such sort of principle of law.

          But in this case one matter is not at all considered by the Ld. Lawyer for the railway that the present passenger purchased sleeper coach reserved ticket and they were passengers with valid reserved tickets at sleeper coach.  In this context the very word sleeper should be minutely considered.  Sleeper coach means the journey is for night hours and in sleeper coach the safety must be given to the bona fide reserved passengers during night hours. So that their all belongings must not have been stolen or removed by some unauthorized passengers even after existence of railway guard and coach conductor and this particular responsibility is with the Railway Authority that there must be conductor in each coach and there must be guard in each coach during night hours journey.  If railway authority fails to provide such “service” to the bona fide reserved coach passengers who availed of sleeper coach for their smooth journey at night.  But in this case railway authority has failed to give any such positive answer that in the said coach there was conductor and there was guard.  But truth is that many valuable articles, big luggage were stolen in between the journey from Varanasi to Howrah by of Vibhuti Express from Varanasi (being PNR No.266-6117243) with seat nos.17-21 and truth is that the complainant availed of that Vibhuti Express as reserved coach sleeper coach S-1 which started from Varanasi to Howrah and just before arrival Howrah they found that all the belongings were stolen.  So, it is clear that there was certain gross negligence on the part of the railway authority and for the latches of the railway authority practically from inside coach luggage of the complainant were stolen at mid night or dawn hours and that loss was caused during their journey in the said sleeper coach No.S-1 of Vibhuti Express.  Complainant lodged complaint before the GRP Howrah.  But we are not un-mindful to the fact that section 100 of Railways Act 1989 was amended in the year 1961 and after such amendment the present lines of section is as follows “ A Railway Administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless Railway service has booked a luggage and give the receipt thereof and in the case of luggage which is carried by the passenger in his charge unless it is proved that the loss, destruction, damage or deterioration was due to the negligence or misconduct on his part or on the part of its any servants”.

          After studying the above section line by line we have gathered that there are two parts and one part is in respect of the luggage which has been booked by the servants of the Railway Authority by giving a receipt thereof to the person and if in such case it is not delivered or it is damaged or destructed in that case railway authority is bound to pay compensation.  But second part starts from “and” that part of the section is “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 mis-conduct on his part or on the part of it servants”.  If second part is taken into consideration and simply interpreted in that case it is found that the luggage need not necessarily be booked by the passenger having valid passenger ticket.

          But as per provision of section 124, it is always required that goods must be owned by the passenger and the significant of the worst can be appreciated in view of the provisions of section 124 read with second part of the section 100 of the Railway Act 1989 that the responsibility in respect of the goods owned by the passenger and company in his commitment or on the train even after such goods is not booked and as per provision of section 2 (23) definition of luggage is also considered and it is found that after proper evaluation of the provision of the Railway Act 1989 that luggage may either carried by the passenger in his charge or entrusted to the railway authority for carriage and further considering that definition in between the goods and luggage we have gathered that this definition is not necessary because neither the condition of booking nor the nature of responsibility is ever deferred just because an article or a commodity is booked as goods or as luggage even then the nature of responsibility of railway administration as carrier has deferred from time to time under the act as that of common carrier i.e. as an insurer as absolute and independent of negligence and fact remains after proper interpretation of the entire portion of law of the present fact we are confirmed that the nature of the responsibility has been same both in case of luggage and goods where it is booked or not.

          But after taking into account the above findings including the spirit of provision of section 100 of the Railway Act 1989 and the present fact and circumstances, we have gathered that the responsibility for loss damage etc., of the luggage shall be governed in such cases according to whether luggage were carried by the passenger in his own charge or whether the luggage lost or damaged being booked for the portion of the journey or not and in view of the above findings we are convinced to hold that under any circumstances and even under section 100 of Railways Act 1989 railway cannot any way claim that they have no responsibility even if the luggage was not booked by the passenger but as because he is bona fide ticket holder of a reserved compartment of sleeper coach of S-1 of Vibhuti Express.  Then higher responsibility lies upon the railways authority to give all securities, safety of their journey.  But in this case railway authority casually submitted by filing written version and evidence in chief by mentioning section 100 of Railways Act 1989 that railway authority has no responsibility because it was not booked.  Probably the railway administration having high qualities of persons never went through the provision of law of section 100 of Railway Act 1989 because the section is divided in two parts one in respect of booked luggage and another in respect of non-booked luggage that means which are generally kept by the passenger during their journey and in both the cases same responsibility is fixed by the act.  Then it is clear that the railway authority is bound to give compensation for such lost articles during their journey by Vibhuti Express from Varanasi to Howrah and admitted fact is that their belongings 3 in numbers were stolen at Ambala.  But we are not considering that 3 but fact remains that at night in sleeper coach no outsider shall be permitted by the conductor of the said coach and by the security guard but in this regard railway is silent whether there was conductor or security guard.  Then it is clear that there was no security guard, conductor and so outsider came, boarded at different stations what is proved and it also proved that the entire journey of the complainant was unsafe.

          When the fair has been paid with reservation charge for sleeper coach then it is the responsibility of the railway authority to given all service including safety, security and other amenities because one cannot believe that the sleeper coach is booked for the purpose of guarding their belongings by passenger whole night and for giving chance to TTE and security guard to enjoy whole night to sleep at some other places.  But nowadays this is the picture and fact remains in so many cases the conductors do not come down from the coach after arrival of any train and to check up that any other person with reserved ticket is getting chance to enter into the specific coach or not and they have got their sleeper coach seat at night and most of the cases we have observed during journey 3^rd parties are occupying by giving bribe and this is the common picture in most of the trains.  But railway authority are not in a position to check this situation and they have their no desire to do so because the ticket checker and conductors are very much busy about their business with the passengers having their no ticket and sometimes ticket checkers and conductors always expect the passengers without ticket then the passenger with ticket because the passenger with ticket will not give any better result to the ticket checker or conductor or the guard and passenger with ticket is very laughable person to them because by handling ticketless passengers they shall have to enjoy their ex-gratia and it is clear picture of corruption in railway and none is here and there to control them.  Whatever it may be we have depicted a very beautiful picture of the railway administration about their service of the conductor, guard and the ticket checkers which is common picture. But there is none to say, none to oppose those ticket less passenger, think that there is no necessity to pay huge money for booking of sleeper coach in view of that fact by paying 50% of the total fair they can avail of the journey because they have their and other relations in the railway who are here and there to provide service to ticketless passengers but not to provide service to passenger with valid ticket.

          Truth is that person with valid tickets are not entertained by the conductors, ticket checkers and etc. and question of security is absent and it is the horrible picture of all the valid ticket holders in the reserved coach.  It is also the same picture as found during this journey also.

          Fact remains for not giving proper service and for negligent manner of service Railway Authority completely responsible and no doubt for their latches and mis-conduct of the railway staff all the articles were stolen so railway administration is responsible for their negligent manner of service and they are not exempted but all this principle as laid down in section 100 of Railways Act 1989 most probably had not been realised by therailway authority for which the argument was advanced before this Forum by showing section 100 of Railway Act 1989.

          We are directing the railway authority to read section 100 daily by their staff to realize that there are two parts, but in both the cases responsibility is same.

          Considering all the above fact and circumstances and also considering the poor service of the railway authority in sleeper coach at night hours in particular train Vibhuti Express from Varanasi to Howrah is well proved and fact remains there was no safety for journey of a passenger of any train in sleeper coach and most probably railway authority has tried to say that in sleeper coach at night the passenger shall have notto sleep to guard their articles and they must not have to close their eye lids only to give enough service to the ticket checkers and the watcher and railway police to sleep silently under the direct security of the non-sleeping passengers and this observation is made considering the argument as advanced by the railway authority before this Forum because again and again they tried to say that it is the duty of the passenger to keep watch in respect of their articles at night hours that means the railway authority is asking the passengers of sleeper coach not to sleep though it is sleeper coach henceforth railway authority shall have to note down in the coach“non-sleeper coach”.  Very horrible experience has been acquired by the complainant and his family member during their journey.  It is not a stray incident but it is the common incident during and after puja vacation.  All the reserved coaches are occupied by the outsiders when ticket checkers is found a Finix bird and in the present case, it is proved that negligence on the part of the railway authority and their employees or servants is well proved and for their negligent manner of service actually the articles of the complainant was removed or stolen away and in this regard it can safely be said that the coach security, conductor of the coach were with the side of the miscreant or they are not in the train and or they permitted unauthorized passenger to avail of train for their own ex-gratia which they got daily other than the salary as given by the railway authority and so directly or indirectly for such loss of luggage of the complainant railway administration and its staffs are equally responsible.

          In the light of the above observation we are convinced to hold that the complainant has proved from any manner of doubt the negligence on the part of the railway administration and also their servant employees (coach guard, coach conductor and security guards) but they are not penalized but before this Forum the person who appeared before this Forum is Senior Division Commercial Manager who received complaint, but did not decide it because in our country corruption in all level is so high that total ex-gratia collected by lower level staff is distributed to higher but to give honest service to the valid ticket holder in sleeper coach should be given at first for total development of the Railway Industry by checking all sorts of corruption but that is completely absent and the present case is the glaring instance in this regard.  In factthere is no desire of the Railway administration to give proper service during long journey if the bona fide passenger and without any harassment and in this case it is proved what type of service was given by the railway authority and there was no safety and security of the bona fide sleeper coach passengers from Varanasi to Howrah on that date.

          Fact remains the entire matter is dealt with by Senior Divisional Manager who ought to have enquired about the matter and he ought to have showed morality by regretting to that family when they travelled by the railways Vibhuti Express about lost their luggage.  But nothing has been done.

          In the light of the above observation we are convinced to hold that complainant has proved beyond any manner of doubt thenegligence on the part of the railway authority and their employees on the particular date and journey and no doubt for the negligence on the part of railway staff, complainant lost their all belongings.

          Anyhow the Ld. Lawyer for the op has tried to convince that this Forum has no jurisdiction but in this regard we have minutely considered the fact and it is found that General Divisional Manager Office is at Fairly Place which is within the jurisdiction of this case and fact remains General Manager of Eastern Railway has the authority to decide such complaint but he had no desire to decide the matter not even it was not referred to any authority that means casual approach is here and there on the part of the railway authority for which the journey by sleeper coach is a hazardous journey what the complainant and their family experienced on the very horrible date.

          Another factor also we have considered in view of the fact that there is Railway Claim Tribunal Act, 1987 and after proper study of the said act it is found that loss or damage etc. of luggage is not the subject matter for decision by the Tribunal but claims Tribunal shall have to decide the following - 1) for loss or damage etc the goods entrusted for carriage, 2) for refund of fairs and freight and 3) for compensation for death or indulge caused in certain circumstances imparting during the course of railway for matters connected there but claim for loss of luggage Railway Claim Tribunal cannot decide the loss or damages etc. in respect of luggage kept in the custody of the passenger during journey.

          So, we are convinced that this Forum has jurisdiction to decide the present redressal as claimed by the complainant and the present Forum has jurisdiction to decide it and fact remains on journey if any theft is committed in that case the entire matter may be dealt with by the Forum and particularly when the General Manager’s Office is within the jurisdiction of this Forum and so the Forum has jurisdiction to decide the same.

          In the light of the above observation and also considering the entire materials we have gathered that it is a very painful and horrible picture as presented before this Forum by a tourist lover family who lost all their luggage during railway journey and no doubt it was caused due to gross negligence of the employees of the railway who are on duty on the said train (Vibhuti Express) on the very date and fact remains complainant did not get proper security and service from the railway authority during from the journey for which railway is responsible and for which they are liable to pay compensation and practically in this case compensation cannot be evaluated on the basis of money but they are entitled to get some compensation because their loss is unimaginable and in the circumstances railway authority shall have to pay Rs.75,000/- to the complainant as per provision of the C.P. act 1986.        

          In the result, the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the ops.

          Ops jointly and severally are hereby directed to pay compensation of Rs.75,000/- to the complainant within one month from the date of this order for causing mental pain, agony, harassment and also for their negligent and deficient manner of service rendered to the complainant as a bona fide passenger of Vibhuti Express in sleeper coach No.S-1.

          Op shall have to comply this order by paying total Rs.85,000/- (Rs.75,000/- as compensation + Rs.10,000/- cost as awarded) within one month from the date of this order failing which for each day’s delay and for non-compliance of this order of the Forum Railway Authority shall have to pay punitive damages @ Rs.200/- per day till full implementation of this order and if it is collected same shall be deposited to this Forum by the Railway Authority.

          Even if it is found that they are very much reluctant to comply the order in that case penal action u/s 27 of C.P. Act 1986 shall be started against them and further penalty of Rs.10,000/- shall be imposed as per law.