BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Complaint Case no. 151 of 2020
Date of Institution: 16.07.2020
Date of Decision: 07.06.2024.
1. Dr. Vikas Aggarwal aged about 45 years son of Shri Deen Dayal Aggarwal,
2. Rachana Aggarwal, aged about 37 years wife of Dr. Vikas Aggarwal, both residents of Metro Hospital, Dabwali Road, Sirsa.
………Complainants.
Versus
Indian Railways through Station Superintendent, Northern Railways, Railway Station, Sirsa, District Sirsa.
……… Opposite party.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. PADAM SINGH THAKUR………. PRESIDENT
SMT. SUKHDEEP KAUR……………..MEMBER
Present: Sh. Ashish Singla, Advocate for complainants.
Sh. Amit Goyal, Advocate for opposite party.
ORDER
The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of C.P. Act, 2019) against the opposite party (hereinafter referred as OP).
2. In brief, the case of complainants is that complainants are the consumers of the op as they have booked a Train Journey from Lucknow NR (LKO) to Hisar (HSR) on 08.07.2019 and they reserved their tickets for Gorakhdham Express (12555) under General Category Quota vide PNR 2523185109 and transaction ID 100001789829892 booked on 19.04.2019. This ticket was booked by them for their own journey alongwith their minor son namely Arsh Aggarwal and they booked the tickets through online electronic reservation system supported by payment app namely PAYTM and complainants paid a sum of Rs.4500.47 in total out of which a sum of Rs.4470/- was paid to the op as ticket fare. That the above said booking was confirmed for IInd AC Class and they were allotted coach No. A1 Seat Nos. 12 and 18 for them and 11 for their minor son. It is further averred that on 08.07.2019 complainants boarded the train from railway station Lucknow. The complainants are permanent residents of Sirsa and had gone to Lucknow to attend a marriage ceremony of their near relative. They were carrying their luggage with them which included their apparels and gold and silver jewellery. That as the complainants had gone to attend the marriage ceremony of their near relative and were carrying some costly jewellery they preferred to travel by reserve train expecting that in a reserve coach no unwanted, unidentified and miscreant person could enter and thus their person and property shall be safe there. It is further averred that on 08.07.2019 complainants successfully boarded the train and it being the night journey they had a sleep on their seat in the coach, however, precautionary they tied their luggage with a chain to their seat. That on 09.07.2019 at around 5.30 a.m, when the train reached at New Delhi railway station, all the luggage of the complainants were available there and were safe but after few minutes when the train started from New Delhi railway station and about to reach Nangloi railway station, the complainants were again awaken by the TT at which they found that one of their suitcase was missing. They immediately raised a complaint in this regard to the on duty TT who asked them that the train will now stop at Hisar and they could inform regarding the same at GRP Police Station Hisar. It is further averred that the suitcase so missing was containing some costly clothes, four wrist watches, gold ornaments i.e. a necklace (80 gm), earrings, two bangles (35 gm) three rings (30 gm), bracelet (10 gm), tops (5gm) and silver ornaments i.e. anklet (30 gm), toe rings (10 gm) and a sum of Rs.6000/- in cash and the total value of these items is approximately Rs. five lacs. That complainants immediately on reaching Hisar reported the matter to Police Station Hisar and a zero FIR No. 20190010 dated 09.07.2019 was registered there against unknown persons under Section 380 IPC which is pending investigation. It is further averred that surprisingly the luggage of complainants has lost while travelling in reserve compartment which amounts to gross deficiency in service by op. That 2nd AC coach is a reserve coach in which only the persons with reservation are allowed to enter and there should always be arrangement for special security at the entrance and exist as well as exclusive TT is on duty at a reserve coach but neither any police constable nor any TTE was there in the compartment when the mis-happening of theft occurred and had proper precaution been taken by the railway authorities no unauthorized person could be allowed to enter and travel in this coach and in this manner the op is deficient in rendering the proper service to the complainants and as such op is liable to compensate the loss caused to the complainant. That complainant contacted the op time and again but no response has been received from them. Hence, this complaint seeking direction to the op to pay a sum of Rs. five lacs as compensation for value of the articles stolen and also to pay a sum of Rs. fifty thousands for harassment and also litigation expenses.
3. On notice, op appeared and filed written statement raising certain preliminary objections that this Commission has no jurisdiction to entertain and decide the present complaint as admittedly complainants had taken the railway ticket with reservation at Lucknow and theft as alleged took place in broad day light in between New Delhi Railway station and Nangloi Railway station, thereafter services of Railway Administrative obviously were availed by complainants at Northern Railway and not of Northern-Western railway. Further for compensation, losses, damage claim to be filed/ lodged with the Railway Claim Tribunal and where there is equal efficacious remedy is available under the Railway Act, then present complaint ought not to have been filed and is barred and not maintainable. That Section 100 of Railway Act, 1989 and Rule 146 of Coaching Tariff No. 24 Part-I Volume-I and Rule 500 of Coaching Tariff No.24, Rule 506 of Railway Coaching Tariff 25 clearly stated that where complainants were carrying the valuable, Railway Administration is not accountable for any articles unless the same are booked or given under the custody, control, management of railway servant/ officials/ staff of the coach and receipt for them is given by the railway clerk or agent. Further all the articles taken into carriage are carried on the entire risk of owner and passenger himself is responsible for safety of his luggage and the railway authorities cannot be held liable for any loss or damages. It is further submitted that alleged theft/ loss did not occur due to negligent or mis-conduct on the part of Railway Administration or its agent or servant, as there was no unauthorized entry in the AC reserved coach wherein complainants were travelling and Mr. Ket Pal C.T.I now retired was on duty from Delhi to Hisar in the coach HA1, A1,B1,B2,B3 and he checked all the passengers in between Sadar Bazar to Shakur Basti and gates of reserved coach were locked. The complainants were sleeping in A1 and were awaken up and tickets were checked. Locking the luggage with the chain and carrying gold and silver jewelry of Rs.five lacs and Rs.6000/- as cash in suitcase is matter of investigation by police, hence not admitted and sleeping over the birth is not believable as highly qualified person like complainants have luggage having gold jewelry worth Rs.five lacs as alleged. It is further submitted that complainants have not impleaded the proper and necessary party in the present complaint. Indian Railway cannot be prosecuted, proceeded with Station Superintendent. The Station Superintendent has been wrongly impleaded, arrayed as op in the present complaint, whereas Northern Railway falls under the Northern Western Railway Bikaner. Neither any ticket has been purchased from railway station Sirsa nor the Gorakhdam express is a train falling under the territorial administrative work/ control, management of the Northern Western Railway, as it is the Northern Railway who has management and control over the Gorakhdham express. It is further submitted that there was no intimation or prior notice to the railway for carrying gold jewelry in luggage by complainants, hence complainants who failed to take proper and reasonable care for ensuring safety and security of their luggage having gold, personal belongings during day journey have no right to assert any kind of deficiency in service on the part of answering op, hence complaint is liable to be dismissed with costs. Even otherwise investigations are to be conducted by the police authorities with regard to the allegations leveled by complainants while lodging the FIR. No copy of complaint or FIR has been supplied to answering op. That value of gold and silver jewelry into luggage have been wrongly mentioned as Rs. five lacs without any authenticated documentary record/ proof, hence Railway Administration cannot be held liable for the loss of the value as alleged by complainants, which was being carried by complainants in their charge. It is further submitted that there is no willful negligence on the part of Railway Administration or its employee as Railway Administration did not permit entry of any unauthorized person/ traveler in the reserved department/ coach wherein complainants were travelling and after intimation to CTI about alleged theft, complainants were assisted for registration of case. The train started from Delhi at 6.05 AM and reached at Hisar at 1.10 on 09.07.2019.
4. On merits, it is submitted that it is unbelievable that a doctor will carry gold and silver jewelry worth Rs. five lacs approximately and cash of Rs.6000/- in the luggage and such luggage was tied with a chain and doctor was sleeping during the day journey and bag was taken away. It is not a case of snatching or robbery or dacoity or unauthorized entry of any person, traveler in the AC compartment, in other words, it can be said that complainants failed to exercise due diligence, reasonable care and ensure safety and security of gold likewise the cash or personal belonging, as no one will keep the cash and gold in luggage and sleep during day journey, hence railway cannot be held responsible for any negligent act of complainants. It is further submitted that neither any intimation has been given to answering op for travelling with such jewelry being kept in the luggage, nor luggage was handed over to TT/CTI attending the coach, otherwise there was no unwanted entry in the coach except the reserved passengers. No unidentified person has been reported to be entered in the reserved coach, where complainants were travelling and it was broad day night when complainants asserted that they were sleeping, this contention reflect the careless act and conduct of complainants. It is further submitted that matter has not yet been investigated by the Investigating Agency as per information of the railway, otherwise it was day journey from Delhi to Hisar. It is strange that luggage allegedly containing gold and silver jewelry with cash amounting to Rs. five lakh being kept in the suitcase under the seat and complainants were sleeping during the day light, more particularly when they were very much aware about halting/ stoppage of train in between Lucknow to Hisar i.e. main stations Delhi, Rohtak, Bhiwani in between Delhi to Hisar, the complainants are asserting that luggage were safe at New Delhi Railway Station and before reaching Nangloi Railway Station after being awakened by TT/CTI they found that their suitcase is missing. It is very much strange that complainants were awaken at New Delhi Railway Station and they slept again for few minutes and their suitcase was found missing. It is further submitted that no complaint has been lodged with on duty TT by submitting the duly form and when TT/ CTI was informed in running train, after reaching Hisar the FIR was got registered by complainants in the RPF office and TT/CTI accompanied them. It is not a case where someone unauthorizedly entered as traveler in the coach and committed theft of suit case of complainants, rather a case of missing the suit case, which either lost in marriage or missed due to own lapses on the part of complainants and under such circumstances mentioned above and otherwise when it is not known to complainants how it missed, complainants never says unauthorized entry in the reserved coach and otherwise when no one except reserved passenger entered in the reserved AC coach then railway cannot be held responsible. It is further submitted that only after investigation it can be said whether it was a case of negligence on the part of complainants or willful negligence on the part of Railway Administration or its servant. TT/CTI was present on duty and only persons with reservation were allowed in train. Had the complainants been vigilant, careful in managing their own luggage and not sleeping in the day light journey, the position would have been different. It is strange that remaining luggage/ suitcase are stated to be there and one suitcase containing gold and silver jewelry is missing, this reflect either involvement of some own person of complainants or no loss or missing of the suitcase. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. The complainants in evidence have tendered affidavit of complainant Rachna Aggarwal as Ex.C1 and documents Ex.C2 to Ex.C12.
6. On the other hand, ops have tendered affidavit of Sh. Anil Kumar Raina, Sr. Divisional Commercial Manager as Ex.R1 and documents Ex.R2 and Ex.R3.
7. We have heard learned counsel for the parties and have gone through the case file.
8. Learned counsel for complainant while reiterating the averments made in the complaint has argued that despite their booking in reserved coach, the luggage of the complainants containing valuable articles i.e. gold and silver jewelery and cash of Rs.6000/- total valuing of the amount of Rs. five lacs was stolen away by some unknown person due to deficiency in service on the part of officials of the op and prayed for acceptance of the complaint. In support of his contentions, he has relied upon decisions of the Hon’ble National Commissions in cases titled as G.M. South, Central Railwy Versus R.V. Kumar and anr. 2005(4) CPJ 57 decided on 04.01.2005, Ashok Kumar Purohit Versus Divisional Comercial Manager, South Eastern Central Railway (Secr) and anr. RP No. 1353 of 2019 decided on 16.10.2023, North Western Railway Versus Ravi Lodha, 2023 (3) CPJ 320 decided on 12.05.2023 and General Manager Northern Railway & anr. Versus Lakhanji Purwar, RP No. 194 of 2016 decided on 16.12.2016.
9. On the other hand, learned counsel for ops while reiterating the version of written statement has argued that the possibility of missing of jewelry of complainants in the marriage programme cannot be ruled out and even if it is assumed that luggage of complainants containing jewelry was lost while travelling in train, the op cannot be held responsible and has relied upon judgment of the Hon’ble Supreme Court of India in case titled as Station Superintendent & Anr. Versus Surender Bhola, CA No. 7116 of 2017 decided on 15.06.2023.
10. We have considered the rival contentions of the parties. According to the complainants, the luggage/ suit case which was allegedly lost/ stolen in the train was lying under their seat and was locked with the chain. There was no loss of suit case from Lucknow to Delhi and according to complainants they found their suitcase missing when train started from New Delhi Railway station and was to reach Nangloi railway station. According to complainants themselves on 08.07.2019 being the night journey from Lucknow to Delhi they had slept in the night and when the train reached in the morning of 07.07.2019 at New Delhi Railway Station they had awaken. Thereafter, it cannot be possible and believable that within few minutes from New Delhi Railway Station to Nangloi Railway station, both the complainants slept at same time and awaken at the same time. Further more it was not disclosed to any railway authority/ TT during journey period that said suitcase is containing such valuable gold and silver jewelry. The suit case containing jewelery was not got booked by complainants from ops and no receipt of the same was obtained by them and therefore, it cannot be said that said suit case was actually containing gold and silver ornaments. Even if the version of complainants is believed that suit case containing gold and silver jewelry was stolen from the train in the area from Delhi Railway station to Nangloi Railway station, then the missing of suitcase was only due to own negligence of complainants because if the suitcase was containing such valuable articles, it cannot be expected from both the complainants that they both will sleep at same time at morning time just within few minutes of their awakening even after sufficient sleeping at night time and it is also not possible and believable that complainants who were having gold and silver jewelry with them will not care for the suitcase and as such it is sole negligence of the complainants if the version of complainants is believed. In this regard Hon’ble Supreme Court of India in case of Station Superintendent & anr. Versus Surender Bhola (supra) relied upon by learned counsel for ops has held that “We fail to understand as to how the theft could be said to be in any way a deficiency in service by the Railways. If the passenger is not able to protect his own belongings, the Railways cannot be held responsible. According, we allow the appeal and set aside the orders passed by National Consumer Disputes Redressal Commission, State Consumer Dispute Redressal Commission and the District Consumer Forum.” The said judgment relied upon by learned counsel for ops is also fully applicable to the facts and circumstances of the present case whereas judgments relied upon by learned counsel for complainant accordingly are not applicable to the present case. As such complainants are not entitled to any compensation from the op and complaint deserves dismissal.
11. In view of our above discussion, we do not find any merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member President,
Dated: 07.06.2024. District Consumer Disputes
Redressal Commission, Sirsa.
