Delhi

East Delhi

CC/373/2019

HARVINDER KAUR - Complainant(s)

Versus

INDIAN RAILWAY - Opp.Party(s)

10 Oct 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.373/2019

	HARVINDER KAUR, C-71, UPPER SECOND FLOOR, PANDAV NAGAR, NEAR RADHA KRISHAN MANDIR, DELHI - 110092	….Complainant
Versus
	INDIAN RAILWAYS THROUGH THE CHAIRMAN RAILWAY BOARD, INDIAN RAILWAYS, MINISTRY OF RAILWAYS, RAIL BHAWAN, NEW DELHI - 110001	……OP

 

Date of Institution: 03.12.2019

Judgment Reserved on: 20.09.2022

Judgment Passed on: 10.10.2022

               

CORUM:

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member)

Sh. Ravi Kumar (Member)

 

Order By: Ms. Ritu Garodia (Member)

 

 

JUDGEMENT

1. The complaint pertains to deficiency in service and negligence on the part of OP due to theft of Complainant’s Hand Bag during travel. 
2. Breif facts as stated by the complainant are that she had booked a ticket for a train journey on 11.04.2019 in AC coach of Train No. 22458 (AADR NEDSF EXP) from New Delhi to H. Sahib Nanded and for return journey on 18.04.2019 in AC coach from H. Sahib Nanded to New Delhi. While travelling from H. Sahib Nanded on 18.04.2019 to New Delhi, and during her return on this train, her light mustard colour purse was stolen around Beena Station in Madhya Pradesh.  It is alleged that it was a duty of coach attendant to keep the compartment locked and keep a good look-out and open it as and when required.  As the compartment of the aforementioned train was not locked, the complainant’s purse was stolen. The duty of Coach Attendant/TT included checking the tickets of the passenger and preventing unauthorized entry in the coach. The Complainant alleges that the private vendors were entering the coach to sell their items. 
3. It is further submitted that her purse contained the following items:

1. Redmi 4A Mobile Phone having Sim No. 9899651044 and 8800302281 of Vodafone and Airtel respectively.
2. Nikon Camera
3. Cash around Rs. 8,000 to 10,000.
4. Aadhar Card and Identity Card etc.
5. Other ladies items.

 

4.  She registered a complaint in the complaint book provided by the TTE. An official of RPF also met her in the train at Gwalior Station to note the details of theft. She also registered an FIR (zero FIR) at GRP, New Delhi Railway Station on 19.04.2019.  Complaints were made via e-mail to Hon’ble Rail Minister, Officers of Indian Railway and PMO Portal. 
5. The Complainant received a reply from West Central Railway vide letter dated 13.05.2019 informing her that her Purse has been recovered from a thief namely Mr. Sanju Vishwakarma, resident of Beena, District Sagar.  The said purse contained all items except cash which was only Rs. 1,810/- instead of Rs.8,000-10,000/-.  She was requested to go to Beena to collect her purse but it was not possible for her to go as she and her husband are government employees and it was difficult for her to leave station. She also has two daughters and it was not possible to leave them alone in the house.  Her total expenditure for going to Beena would be more than Rs. 20,000/-. Thus, it was not practical and possible for her to travel to Beena to collect her stolen items.
6. She submits that she was appointed as Polling Officer for Lok Sabha election and had to attend her election training on 20.04.2019. As her mobile was stolen, she had to face a lot of problem and had to purchase another mobile in hurry.  Her mobile and camera contained memories of travel and important contact numbers. The prayer of the Complainant is that OP be directed to pay Rs. 5,00,000/- for deficiency in service due to which  her purse was stolen and compensation for physical pain and mental agony.
7. OP in its reply has taken a preliminary objection that the present complaint does not fall within the ambit of Consumer Protection Act as the Complaint is covered by Section 13 of Railway Claims Tribunal Act 1987 and Section 100 of Railways Act 1989. 
8. It is contended that the incident took place near Beena Railway Station, Madhya Pradesh and as such this Commission has no territorial jurisdiction. 
9. On merits OP has admitted that the Complainant travelled from H. Sahib Nanded to New Delhi on 18.04.2019 in AC, and contends that the said purse was in the possession of the Complainant and no services of the Railways were hired for the alleged purse. The Railways cannot be expected to be aware of all articles carried by passengers at all points of time during the journey nor can it be held responsible for their safe keeping. Only those articles which are entrusted with the Railways against a receipts come within the responsibility of the Railway. 
10. It is further stated that the stolen items were recovered by GRP, Beena, Madhya Pradesh from a thief namely Sanju Vishwakarma.  It is imputed that the Complainant is not collecting the same with malafide intention. OP has stated that the Complainant does not even know the place of alleged incidence and she has shifted the blame for her own negligence to Railways, and it is prayed that the complaint be dismissed.
11. The Complainant in her Rejoinder has reaffirmed the facts of the complaint.  She has reiterated that it was the responsibility of Railways that passengers reach their destination safely with their luggage and belongings. She stated that if the compartments would have been locked, the thief could not have entered the compartment. The Coach Attendant was sleeping instead of keeping a look-out and unauthorized private vendors were moving in and out the Coach. 
12. Complainant has filed the evidences by way of affidavit and has exhibited the following documents:

1. Her pay slip and details of family is exhibited as EX A1/1.
2. Her train tickets are exhibited as EX A1/2 and EX A1/3.
3. Receipt for room booking in Nanded, application for leave, order for appointment as Polling Officer and correspondence with SDM (EAST) are exhibited as EX A1/4  to EX A1/7. 
4. The duty list of train conductor and coach attendant is exhibited as EX A1/8 and EX A1/9 respectively.
5. Complaint in Railway complaint book exhibited as EX A1/10.
6. Video Clips of the train is exhibited as EX A1/11.
7. FIR at GRP Police Station, New Delhi, is exhibited as EX A1/12. 
8. Letter dated 20.04.2019 is exhibited as EX A1/13.
9. E-mail dated 21.04.2019 is exhibited as EX A1/14.
10. Complaint against the Coach Attendant and TT are exhibited as EX A1/15, EX A1/17, EX A1/19, EX A1/20, EX A1/21, EX A1/26 and EX A1/27.
11. Complaints made to PMO Portal, and Hon’ble Minister of Indian Railways is exhibited as EX A1/16 and EX A1/18 respectively.
12. A complaint filed with National Consumer Helpline exhibited as EX A1/22. 
13. Letter dated 30.05.2019 from West Central Railway intimating that the purse has been recovered exhibited as EX A1/23.
14. Request made to Railways for delivery of stolen items at Delhi vide e-mail dated 27.06.2019 exhibited as EX A1/24 and EX A1/25. 
15. Complaint before Delhi Dispute Resolution Society exhibited as EX A1/28. 

13. The Complainant has reaffirmed the complaint in her affidavit. She has further stated that she tried to contact the Coach Attendant after theft of the purse, but found him sleeping at that time. Though he did come to her coach but did nothing.  It is alleged that there was no cooperation from his side and he did not even give the complaint book. Complainant had to search for the TTE on her own who listened to her complaint but stated that he can do nothing. He directed her to de-board the train and register the complaint.  As she refused to de-board the train, her complaint was registered in the complaint book. 
14. OP has filed evidence by way of affidavit in support of the averments made in the written submission. 
15. The Commission has considered the matter and heard the arguments advanced by both the parties. The complaint traveled in the particular train, and her purse was stolen, are admitted facts. The question required to be answered in the present case therefore i.e.

1. Whether the OPs can deny their liability to compensate the complaint by relying on Section 100 of Railways Act, 1989 and Section 13 of Railway Claim Tribunal Act, 1987.
2. Whether there is any negligence on the part of Railways Administration in not providing security measures due to which removal of handbag of the complainant became possible for the theif. 

OP has raised the preliminary objection to the extent that the claim is barred by Section 13(1) of Railways Claim Tribunal Act 1987 and Section 100 of Railways Act 1989.

Section 100 of the Railways Act, 1989, reads as under:- "Responsibility as carrier of luggage-A railway administration shall not be responsible for the loss, destruction, damage, deterioration of non-delivery of any luggage unless a railway servant has booked the luggage and given a receipt therefore, and in the case of luggage which is carried by the passenger in his charge, unless it is also proved that the loss, destruction, damage or deterioration was due to the negligence or misconduct on its part or on the part of any of its servants."

“Hon'ble National Commission in Union of india and others V/s Syed Mubuddin Rizvi 2016 CLT 542 NC. After dealing with Sections 13, 15 & 28 of the Railway Claims Tribunal Act, 1987, has observed as under:-

"It would thus be seen that the jurisdiction of a Court or an authority other than the Railway Claims Tribunal would be barred only in the matters in which the said tribunal would have jurisdiction in terms of the Railway Claims Tribunal Act. A perusal of Section 13 as extracted herein above would show that the said tribunal does not have jurisdiction to grant compensation to a passenger who has lost the luggage being carried by him with him on account of the negligence of a railway employee. The jurisdiction for the tribunal is restricted to the goods or animals entrusted to the railway administration for carriage and compensation payable under Section 82A & 124A of the Railways Act. Though the tribunals would also have power to award compensation on account of an untoward incident in terms of Section 124A of the Railways Act, the compensation on account of loss of the carriage being carried by a passenger with him does not come under the jurisdiction of the Railways Claims Tribunal. Consequently, the jurisdiction of Courts and other authorities would not be barred in respect of such a claim.

Hon'ble National Commission also relied upon Section 100 of the Railways Act, 1989 and observed that it would thus be seen that the Indian Railways is not responsible for the theft or loss of the luggage carried by the passengers with them, unless it is shown that such loss or theft occurred due to negligence or misconduct on the part of the Railways or any of its employees. In the facts of that case it has been observed as under:-

In my opinion, had the T.T.E. and/or coach conductor been present throughout and not sleeping, he would have certainly noticed the miscreants cutting the chain and leaving the compartment with the suitcase of the complainant. The very fact that the cutting of the chain and the theft of the suitcase was not noticed either by the T.T.E. or by the coach conductor clearly indicates that either they were not present in the coach as is alleged by the complainant or they were sleeping somewhere in the coach instead of taking rounds of the coach moving from one end to the other end. It would be pertinent to note here that this was the case of the petitioner that in fact no theft had taken place and a false report of theft was made by the complainant. This is also not the case of the petitioners in the reply filed before the District Forum that the complainant had not secured his suitcase using an iron chain and lock for the purpose as was alleged by him. Therefore, the case set out by the complainant remained practically unrebutted." The Revision Petition filed by the Railways was dismissed on the ground that since the theft of the suitcase happened due to negligence on the part of the railway employees, the petitioners are liable to compensate the complainant for the loss sustained by him. Similar view has been taken in the other judgments referred to by the learned counsel for the complainant”.

It would thus be clear that the complaint was filed before the Railways was dismissed on the ground that since the theft of the suitcase happened due to negligence on the part of Railway employees the Railway is liable to compensate the Complainant for the loss.

16. As far as territorial jurisdiction is concerned a part of cause of action has accrued in Delhi as the complainant was travelling from H. Sahib Nanded to Delhi. FIR was also lodged with GRP, Delhi, and as such the Commission has territorial Jurisdiction to interalia decide the case.
17. Now, coming to the merits of the present case, the Complainant after discovery of the loss immediately alerted the Coach Attendant who was found sleeping.  She also called the TT and after much persuasion registered the complaint in the complaint book.  Similar complaints were lodged with the Police at GRP on Government Railway Police Station, Beena.
18. A list of duties specified for train conductors are placed on record.  The duties mentioned at Sl. No. 5, 11, 12, 13, 14,16,17 are reproduced as under:

5. He shall check the tickets of the passengers in the coach and guide the passengers in occupying their accommodation. He prevents Illegal/unauthorized entry in the coach including the platform ticket holders.

11. He shall ensure that the doors of the coaches are kept latched during run of the train and open them as and when required by the passengers.
12. He shall keep the end doors of the vestibuled coach locked during 22.00 hrs to 06.00 hrs to prevent unauthorized entry.
13. He shall remain vigilant particularly during the night time and prevent entry of unauthorized persons / beggars / intruders in the coach.
14. He shall always be polite, tactful and courteous in his dealings with the passengers leaving no room for any complaints.

16. He shall take assistance of GRP / RPF if necessary for removal of un unauthorized occupants and deal with them under provisions of Section 155 (1) of Railway Act, 1989.
17. He shall be present in the allotted coach during duty hours and if more than one coach are to be manned, give frequent visits to all the coaches to be manned.

19. A bare reading of the same demonstrates that the responsibility is cast on the train conductors to be watchful about anyone entering in the train compartments. He is required to be vigilant particularly during the night time and keep the end doors of the Coach locked from 10.00 PM. to 06.00 AM.
20. Admittedly, in the present case the TT and coach attendant failed to perform their duties due to which some unauthorized person entered the compartment and stole the purse of the Complainant. It is immaterial that the purse was recovered and thief has been caught by the efforts of GRP Beena, Madhya Pradesh, and the Complainant was unwilling to go to Beena to collect the recovered items. Although as a vigilant citizen she is duty bound to assist the state so that the culprit be sentenced, by the Court of law, however this does not minimize the negligence on the part of OP.
21. A person purchases a reserved ticket to ensure safe and comfortable journey for her/himself. If a passenger’s luggage is stolen in reserved class due to unauthorized entry of an intruder, Railways must own full responsibility of the same because the responsibilities of ensuring safety and security of lives of passengers as well as their belongings during a train lies with the Railways.
22. Now coming to the compensation part. There is no evidence in the case file as to whether the purse contained the items as alleged including cash. It can only be ascertained from the fact, as to what has been recorded in the seizure memo, prepared by the police, after the arrest of the accused in that particular FIR. The phone and camera or the cost there of is not before the Commission. How old these articles were, has not been proved. The cash as recovered from the accused is just Rs.1800/-. Therefore the Commission is not ordering any compensation w.r.t. the articles for want of evidence. However as far as compensation w.r.t. negligence of Railway is concerned it stands proved.
23. Hence, we find OP guilty of deficiency in service and direct the OP to pay Rs. 25,000/- towards negligence, mental stress and agony to the Complainant inclusive of litigation expenses. 

This order be complied within 30 days from the date of receipt of the order.

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 10.10.2022

Delhi.