Per Mr.Justice S.B. Mhase, Hon’ble President
1. Heard Advocates for the respective parties.
2. Both these appeals are directed as against the order passed by District Consumer Disputes Redressal Forum, Nashik in consumer complaint No.189/2009 decided on 07/01/2010. By this order the appellant No.1 in Appeal No.315/2010 was directed to pay an amount of `48,000/- for the loss sustained by the complainants as a result of theft. Said appellant No.1 is further directed to pay `3,000/- for mental agony and `3,000/- by way of cost. All these amounts are directed to be paid to the original complainants within a period of one month and in case of delay, said appellant No.1 has been directed to pay interest @ 9% p.a. As against opponent Nos.2to5 there are no adverse orders.
3. Complaint No.189/2009 was filed by one Mr.Hemant Vasant Bhavsar and his wife Mrs.Hemarani Hemant Bhavsar, both resident of District Nashik. In the said complaint, opponent is shown as ‘Government of India’ represented by (1) In-charge Central Railway Booking Office, Nashik Road, (2) General Manager, Central Zone, Central Railway, Chatrapati Shivaji Terminus, Mumbai, (3) Station Master, Dadar Railway Station, Central Railway, Dadar, Mumbai, (4) In-charge GRP Police Station, Dadar Railway Station, Central Railway, Dadar, Mumbai and (5) Police Commissioner (GRP), Office of Railway Police Commissioner, P. D’Mello Road, Wadibunder, Mumbai. Thus, it appears that the complainants desired that the Government of India is to be represented by the above referred five designated officers. However, while passing the order, the order has not been passed as against the Government of India. There is no order as against opponent Nos.2to5 who were also equally shown to represent the Government of India. There is only an order as against opponent No.1, namely, In-Charge Central Railway Booking Office, Nashik Road. However, it is not known from the order whether it has been passed against the Government of India represented by opponent No.1 and/or individually as against opponent No.1. Let the facts as it is.
4. The above referred order passed by District Consumer Forum, Nashik has been challenged by opponent Nos.1,2&3 by filing an appeal No.315/2010. In the said appeal, original complainant Nos.1&2 are respondent Nos.1&2 and the original opponent No.4-In-charge GRP Police Station is shown to be respondent No.3. Original opponent No.5, namely, Police Commissioner (GRP) is not made party in appeal No.315/2010. Another appeal No.144/2010 has been filed by original complainant Nos.1&2 as appellants and the original opponents as reflected from the original complaint as stated above are shown as respondents. This appeal has been filed for claiming remaining amount of `4,94,000/-. Therefore, in this judgement for the sake of convenience, parties are referred to as ‘complainants’ and ‘opponents’ so as to avoid confusion.
5. The above referred complaint was filed by the complainants in the District Consumer Forum, Nashik claiming an amount of `50,000/- for deficiency of service and `4,50,000/- for mental harassment, etc. and thus `5 Lakhs were claimed from the Railway Administration and thereafter, interest @ 18% p.a. on `5 Lakhs has been claimed from the date of incident of theft till the date of decision and `5,000/- were/are claimed by way of cost. Out of this claim, District Consumer Forum has allowed claim of `48,000/- for the loss suffered by way of theft of the goods and `3,000/- by way of compensation for mental agony and `3,000/- by way of cost of litigation. Therefore, original complainants have filed appeal claiming remaining amount of `4,94,000/-.
6. We have gone through the appeal memo of appeal No.144/2010 and we find that said appeal has been filed only for getting remaining amount of `4,94,000/- and all the grounds made out in the appeal memo are to that effect. This is being minutely scrutinized and mentioned here for the purpose that the appellants/complainants have not made any grievance in this appeal in respect of the fact that the District Consumer Forum has directed that there are no order as against opponent Nos.2to5 and equally there is no grievance of the original complainants in respect of the fact that the order is conspicuously silent about the Government of India. Therefore, net result follows that in spite of the fact that the District Consumer Forum has not issued any order as against opponent Nos.2to5 and/or the Government of India, the appellants/original complainants have not filed any appeal challenging this aspect of the order and therefore, in the appeal which has been filed by the complainants, we have to consider whether the amount of `4,94,000/- in addition to the amounts which have been granted by the District Consumer Forum shall be allowed/granted or not.
7. So far as the appeal which has been filed by the Railway Administration-the appellant No.1 is shown to be ‘Union of India’ represented by General Manager, Central Railway and appellant No.2 is In-charge Railway Booking Office, Nashik Road and appellant No.3 is the Station Master, Dadar Railway Station. Thus, this appeal has been filed by the Union of India represented by original opponent Nos.1,2&3. However, in the appeal memo, original opponent No.2 is shown as ‘appellant No.1’ and original opponent No.1 is shown as ‘appellant No.2’. This is mentioned here because the order which has been passed by the District Consumer Forum is specifically as against the In-charge Central Railway Booking Office, Nashik Road, namely, appellant No.2/original opponent No.1.
8. The case of the complainants is that the complainants were travelling on 17/11/2007 on a reserved ticket No.02838680 Bogie No.S-6, Seat Nos.68&69 from Nashik Road to Dadar by Amrutsar-Dadar Express Train No.1058. Said train came to Dadar at 4.00 a.m. and while complainant was preparing for getting down from the said train, ladies purse belonging to his wife-complainant No.2 kept in the personal luggage was not found and theft in respect of said purse had taken place. In the said purse, according to him there were gold ornaments, mobile and cash together valued to `48,000/-. He states in the complaint that at 4 O’clock the train reached Dadar Station on 18/11/2007 and he was just collecting the luggage and at that time the purse was in the luggage. However, at the same time theft had taken place in respect of said purse. According to him, in a centrally located Railway Station like Dadar Railway Station, there should have been an appropriate police protection and to provide such protection was responsibility of the railway and that responsibility continues till the passenger came out of station. Thus, according to him there was/is negligence on the part of Railway Administration and therefore, he had filed the complaint. He has further stated that he immediately lodged the complaint with the Railway Police at Dadar. However, nothing was traced and therefore, there was deficiency on the part of railway.
9. This complaint has been denied by the original opponent Nos.1to3 on several grounds including the ground of jurisdiction. It is the contention of the Railway Administration that the incident as per the statements made in the consumer complaint and the F.I.R. lodged with the Railway Police had/has taken place at Dadar and therefore, consumer complaint ought to have been filed in a District Consumer Forum at Mumbai and not at Nashik. They have also denied their liability and responsibility in respect of theft alleged to have been committed. It is further their contention that as per the Railway Act and Rules, it is the responsibility of the passenger to take appropriate precaution of their belongings and unless and until the goods are disclosed and given in the custody of the railway and the receipt to that effect is obtained, the liability cannot be fastened on the Railway Administration.
10. Both these appeals were heard by the State Consumer Disputes Redressal Commission on 24/02/2011 and the State Commission was to dictate the judgement. However, Learned Counsel for the complainants requested for time to research a case law and prayed for time and therefore, we have granted adjournment upto 10/03/2011. On 10/03/2011 both the Counsels were absent and we have passed a detailed order on 10/03/2011 imposing cost on both the Counsels and adjourned the case to 21/03/2011. On 21/03/2011 it was adjourned to 24/03/2011. However, on 24/03/2011 Learned Counsel for the complainants submitted an application to take an action for perjury as against Mr.Atul Rane, Senior Divisional Manager of the Central Railway. Since said application was given, Advocate Mr.Samant prayed for time for filing a reply and affidavits opposing the said application and therefore, appeals were adjourned to 28/03/2011. We have heard the case on 28/03/2011. Since after hearing the appellants, time was sought, it was granted and the appeals were fixed to 30/03/2011. We have heard these appeals on 30/03/2011 and today i.e. 31/03/2011 after hearing the parties, we are deciding these two appeals along with the application filed by the original complainants for taking an action for perjury as against Mr.Atul Rane, Senior Divisional Manager, who has filed an affidavit in support of the Railway Administration. Said application is dated 24/03/2011. Thus, this order deals with both the appeals and the application given by original complainants on 24/03/2011.
11. Learned Counsel Mr.Samant appearing for the Railway Administration submitted that the point of jurisdiction was raised before the District Consumer Forum, Nashik. However, according to him said aspect has not been properly dealt with by the District Consumer Forum. He submitted that District Consumer Forum has observed that the railway ticket has been purchased from the original opponent No.1 whose office is located in the territorial area of the District Consumer Forum, Nashik and therefore, District Consumer Forum, Nashik is having jurisdiction is incorrect and illegal reasoning. He relied upon the judgement of this Commission delivered in the matter of Union of India represented by General Manager, Central Railway V/s. Shri Vikas Laxman Sangwai, First Appeal No.1012/2007 decided on 21/04/2010. He also invited our attention to the judgement of the Supreme Court reported in 2009 CPJ 40 given in the matter of Sonic Surgical V/s. National Insurance Co. Ltd. While dealing with the case of theft with the Railway Administration, the facts as reflected in the said First Appeal were as follows :-
“The complainants/respondent Nos.1&2 had approached the District Consumer Forum with grievance that on 27/08/2002 complainants were travelling by Vidarbha Express and they were travelling from Dhamangaon to Thane. They were given berth/seat Nos.23&24. The Train came to Akola Station and when it was to leave Akola Station, complainant No.2 demanded water and when the complainant No.2 tried to get water bag from suitcase, kept on upper berth, he noticed that his suitcase has been opened and ornaments which were kept in it were not in the suitcase. He realized that there is a theft and therefore complaint was lodged at Shegaon Station and according to him there is deficiency in service. While considering these facts in the light of the Apex Court’s judgement, referring to above, we have relied on the following passage from the said judgement :-
“In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act which does not lead to an absurd consequence. If the contention of the Counsel for the appellant/Railway Administration is accepted, it will mean that even if cause of action has arisen in Ambala, then the complainant can file a claim petition even in Tamilnadu or Gauhati or anywhere in India where the Branch Office of the Insurance Company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, expression “Branch office” in the amended Section 17(2)(b) would mean the branch office where the cause of action has arisen. No doubt this would be departing from Section 17(2)(b) of the Act, but such a departure is sometimes necessary (as it is in this case) to avoid absurdity. [Vide G.P. Singh’s Principles of Statutory Interpretation, Ninth Edition of 2004 P.79].”
Thus, the Apex Court has considered point of jurisdiction in the light of facts of Insurance Company and its offices.
12. Here in the present case also the Railway Administration is having their Booking offices at various places in India like Insurance Company as in the reported judgement dealt with by the Apex Court and therefore, complaint can be filed anywhere in India. However, that will be an absurd result as observed by the Apex Court. Same aspect has been considered by us in the light of the facts involved in the First Appeal and ultimately, said complaint was withdrawn by the complainant and he was given liberty to file a complaint before the appropriate Forum. In the present matter also complainant had started his journey from Nashik and he had come to last designated place Dadar. At that point of time while he was collecting his luggage, purse was available but before he got down from the bogie, he had lost the purse. His complaint which was submitted to the Railway Police also mentioned this fact and therefore, on proper analysis of the complaint and F.I.R., what we find that till the complainants’ journey was/is completed upto to Dadar, bag containing golden ornaments, cash and mobile was/is available with the complainant, but before the complainant got down from the bogie, theft had taken place. Who was/is responsible for the theft is not known. F.I.R. shows that it is a complaint as against unknown person. Therefore, what we find that the cause of action, causing loss to the complainant had taken place at Dadar only and the F.I.R. had been lodged at Dadar only. All these facts are admitted in the complaint itself. Therefore, on the basis of above ratio, this is a case wherein the District Consumer Forum at Central Mumbai was/is having territorial jurisdiction. Only because the ticket has been booked at Nashk and/or one of the branch office of Central Railway or the Station of the Central Railway is located at Nashik that itself would not give a territorial jurisdiction and the Apex Court has found such an argument as an absurd and fallacious. The Learned Counsel for the complainants has relied upon the judgement of the Apex Court reported in AIR 2000 Supreme Court Page-62 in the matter of Union Bank of India V/s. M/s. Seppo Rally OY & Anr. However, after going through the said case, we find that the said case also does not support the submissions of the complainants. In the said case, point of jurisdiction was raised to the effect that Delhi State Consumer Disputes Redressal Commission had no jurisdiction to entertain the complaint as no cause of action arose within the Delhi, Central Office of the Bank was at Mumbai and the Branch office which issued the Bank Guarantee, subject matter of the complaint was at Saharanpur in the State of Utter Pradesh. Considering the facts in the said case, it has been observed in Para 12 after quoting Section 11(2) of the Consumer Protection Act, 1986, the Apex Court has observed –
“Under Section 17 of the Act a State Commission has jurisdiction to decide complaints of the value between rupees five and twenty lakhs but there is no such provision as contained in sub-section (2) of Section 11 of the Act applicable to State Commission. Section 18 of the Act does not make provision of sub-section (2) of Section 11 applicable to the State Commission. Each State has its own State Commission. There is purpose for it. First appeal of the District Forum situated within the State lies to the State Commission and then State Commission can take cognizance of the dispute arising within the State. It cannot be the intention of the Legislature that dispute arising in one State could be taken cognizance by State Commission of other State. We have to have purposive interpretation of the provisions and we have to hold that similar provisions as contained in sub-section (2) of Section 11 with modifications as may be necessary, shall be applicable to the State Commission. In fact these are the basic provisions conferring territorial jurisdiction on a tribunal otherwise it will lead to absurd situations. We must read into Section 17 the same provisions as contained in sub-section (2) of Section 11 of the Act subject to such modifications as may be applicable to a State Commission. It may also be noticed that under sub-clause (ii) of clause (a) of Section 17 appeals against orders are heard by the State Commission against the orders of any District Forum within that State. In the present case M/s.Dany Dairy and Food Engineers Ltd. approached the Saharanpur Branch of the Bank to provide Bank Guarantee which it did. The Bank Guarantee was invoked at Saharanpur and payment was also made by the Saharanpur Branch of the Bank. Saharanpur Branch is situated within the State of U.P. No part of the cause of action has arisen in Delhi. It is difficult to agree with the view of the State Commission and also of the National Commission that the State Commission at Delhi had jurisdiction in the matter.”
13. Thus, what we find that the latest judgement which we have relied upon while deciding First Appeal, referred to above, and the old judgement which is relied upon by the complainants, referred to above, shows that the ratio-decidendi as laid down by the Apex Court is one and the same and therefore, it is crystal clear that the District Consumer Forum at Nashik had no territorial jurisdiction to entertain the complaint and to decide it. Issue of territorial jurisdiction has been wrongly decided by the District Consumer Forum. Since, we find that the order is vitiated by the lack of territorial jurisdiction, we desire to set aside the order on that ground itself and we do not desire to consider the other points in respect of liability and deficiency because that will be the area which has to be considered by the District Consumer Forum which possesses the jurisdiction and powers to decide the complaint. We simply observe and state at this stage that the impugned order of the District Consumer Forum stands vitiated as a result of want of territorial jurisdiction to decide the complaint.
14. However, what we find that the case was pending since 2009 and it was decided in 2010 and thereafter, one year has gone in disposing of these appeals. Therefore, filing of a fresh complaint may create several problems for the complainants and therefore, we desire to exercise our powers under Section 17-A of Consumer Protection Act, 1986. Said Section states that on the application of the complainant or of its own motion, the State Commission may at any stage of the proceeding transfer any complaint pending before the District Consumer Forum to another District Consumer Forum within the State if the interest of justice so requires. No doubt there is no application made by the complainant in the present case to transfer his case, but when we have came to the conclusion that the District Consumer Forum, Nashik had no territorial jurisdiction, two options are left with us, namely, to dismiss the complaint filed with the District Consumer Forum on a ground of want of territorial jurisdiction with a liberty to file said complaint with the appropriate District Consumer Forum and/or secondly, to transfer the said complaint suo-motu to the District Consumer Forum, Central Mumbai in the interest of justice. Since, the complainant has not prayed for transfer of case, we feel it proper in the interest of justice and to avoid inconvenience to the complainants that it is a fit case to transfer the said complaint from District Consumer Forum, Nashik to District Consumer Forum, Central Mumbai.
15. Since, we have not dealt with the matter on merits, what we find that the claim of complainants as prayed for in the Appeal No.144/2010 can be considered by the District Consumer Forum, Central Mumbai and therefore, we do not desire to decide said appeal, but we only observe that the complainant is entitled to press for appropriate amount before the District Consumer Forum, Central Mumbai after transfer of complaint. However, District Consumer Forum is supposed to consider said claim on its merits and on the basis of evidence made available. We only observe that claim of the complainant to that effect is kept open for consideration by the District Consumer Forum having jurisdiction to deal the complaint.
16. Next question which requires to be dealt with is an application dated 24/03/2011 seeking action for perjury as against Mr.Atul Rane, Senior Divisional Manager of the Central Railway. The grievance of the complainant is in respect of affidavit filed by Mr.Rane in the original proceeding before the District Consumer Forum. Said affidavit is dated 17/11/2009. So far as main body of the affidavit is concerned, there is no grievance. However, said affidavit is having a verification clause and it has been stated in the verification clause that statements made in the said affidavit are true and correct as per the information and belief and in witnesses whereof, I have signed today this document at Nashik. Out of this statement, the objection is in respect of statement, namely, that “I have signed this document at Nashik”. Swearing endorsement on the affidavit shows that said affidavit was sworn at Mumbai before a Notary public Mr.S.K. Swamy on 17/11/2009 bearing a Notarial Serial No. 239 Page-31. Said Mr.Rane has been identified by Advocate Mr.Dhanraj Patil, Advocate High Court, Mumbai, Esplanade Court. Therefore, grievance of the complainants is that the affidavit has been sworn at Mumbai, but the signature was made at Nashik and therefore, when the affidavit was sworn at Mumbai Mr.Rane was not present before the Notary public and/or if the affidavit was sworn before the Notary Public then the statement made in the verification clause of the affidavit that “it has been signed at Nashik” is incorrect and thus, there is a perjury and according to him offence under Section 181, 182, 199, 200 etc. of I.P.C. has been committed by Mr.Rane and action should be initiated against him. In reply to this, Railway Administration has filed an affidavit of Mr.Atul Rane, an affidavit of Mr.B.K. Patil, Advocate working in District Consumer Forum, Nashik and Mr.Shailesh Tawde, Chief Law Assistant, Railway Mumbai and Shri Muthukrishnan Ramesh Babu, Senior Ticket Collector, Central Railway, Mumbai. It is stated by Mr.Rane that the case was at Nashik and Mr.B.K. Patil, Advocate was entrusted with the said consumer complaint. Said Mr.B.K. Patil has drafted the written statement and affidavit in the month of September 2009 and sent copy of the draft written statement and the affidavit to be filed before the District Consumer Forum Nashik. He has further stated that one Mr.Shailesh Tawde, Chief Law Assistant deals with the court cases. He submitted that last part of the affidavit was overlooked being standard clause of verification believing is to be correctly typed. He further states that he accompanied with Mr.Muthukrishnan Ramesh Babu appeared before the Notary in the Esplanade Court and Advocate Mr.Dhanraj Patil identified him and affidavit is notarized. He states that he signed the affidavit in Mumbai at Esplanade Court premises before the Notary Shri S.K. Swamy and same has been notarized in the register of the Notary at entry No.239. He further states that his staff Shri Muthukrishnan Ramesh Babu has put his signature in the register. He has stated that though the affidavit was signed and sworn at Mumbai and not at Nashik, members of his staff failed to make correction which was inadvertently over sighted by all the concerned. According to him, it is a human error and it is not a deliberate attempt and there was no malafide and false statement. In support of said affidavit of Mr.Rane, Mr.B.K. Patil, Advocate from Nashik has filed an affidavit stating that he has drafted said disputed affidavit and he stated that in routine course his typist has made a statement that the affidavit is being signed at Nashik. However, he has stated that actually this affidavit was not signed at Nashik, but it has been signed at Mumbai. Mr.Shailesh Tawde, Chief Law Assistant also has filed an affidavit supporting Mr.Rane. Mr.Muthukrishnan Ramesh Babu, Senior Ticket Collector has also filed an affidavit supporting Mr.Rane. What we find is that so far as main contents in the affidavit are concerned, there is no dispute. Only dispute is about the fact that as to whether the affidavit is signed at Nashik and/or signed at Mumbai. In order to establish the said fact Mr.Rane and his officers including Advocate, who drafted the affidavit have filed their affidavits on record stating that the affidavit has been signed at Mumbai before the Notary Public and they have stated that inadvertently the place of signing in the verification clause shown as ‘at Nashik’ is an error which should have been corrected prior to swearing an affidavit or prior to filing of affidavit before the District Consumer Forum. What we find that the said error is very minor error and does not affect the subject matter of the consumer complaint in any away. Such an error is just possible because of typist practice and/or if the documents are prepared at one place and they are sent to another place for swearing, the possibility of such error cannot be ruled out. No doubt, precaution to correct should have been taken by Railway Administration and Mr.Rane in the present case. However, we do not find that there is a case of perjury in the facts and circumstances of the case so as to take cognizance of Section 340 read with 195 of Cr.P.C. read with Section 13(5) of Consumer Protection Act, 1986. The application appears to have been given at belated stage so as to pressurize the Railway Administration when it become evidence for the Learned Counsel for the complainants that the order is likely to be set aside by the State Commission relying upon the Supreme Court’s judgement, which held that there is no territorial jurisdiction in the facts and circumstances of the case. We find that the application is without any merit and it is hereby rejected. Therefore, we pass the following order :-
-: ORDER :-
1. Appeal No.315/2010 filed by original opponent Nos.1to3 is hereby allowed. The impugned order dated 07/01/2010 to the extent of appellants is hereby set aside on a point of lack of territorial jurisdiction with District Consumer Forum, Nashik.
2. The grounds raised in Appeal No.144/2010 filed by original complainants for getting remaining amount of `4,94,000/- are kept open to be considered by District Consumer Forum, Central Mumbai which has territorial jurisdiction in the matter. Said appeal is disposed of accordingly.
3. Consumer complaint No.189/2009 filed by the complainants is hereby transferred by invoking powers under Section 17-A of the Consumer Protection Act, 1986 to the District Consumer Forum, Central Mumbai.
4. The District Consumer Forum, Nashik is hereby directed to transfer the said consumer complaint to the District Consumer Forum, Central Mumbai within a period of 15 days after receipt of the order.
5. The District Consumer Forum, Central Mumbai is hereby directed to dispose of the complaint on merits after hearing both the sides within a period of 30 days.
6. We make it clear to the District Consumer Forum, Central Mumbai that except point of territorial jurisdiction we have not dealt with any portion of the complaint on merits. Therefore, District Consumer Forum Central Mumbai shall consider the question of liabilities and responsibilities of each of the opponents in the said complaint on its own merit without being influenced by the observations made by us in the present order.
7. In the facts and circumstances of the case parties are left to bear their own costs.
8. Appeals are disposed of accordingly.
9. Copies of the order be furnished to the parties.
Pronounced
Dated 31st March 2011.
