DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 314/2016
Sanjeev Nirwani
Son of Shri S.C. Nirwani
22, Mausam Vihar, Delhi-110051
….Complainant
Versus
- Indian Railway
Through Chairman, Railway Board
Rail Bhawan, Raisina Road, New Delhi-110 001
- Eastern Railways
Through its General Manager
17, Near Fairly Place
Netaji Subhash Road, Kolkata-700 001
….Opposite Party
Date of Institution : 28.09.2016
Date of Order : 24.03.2023
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
- Complainant has made a request for passing an award directing Indian Railway (hereinafter referred to as OP) (a) to reimburse the sum of Rs. 20,000/- cash stolen from the luggage (b) Compensate for loss of religious coins by payment of Rs. 51,000/-; (c) Compensation of Rs. 11,000/- towards mental pain, agony etc (d) cost of the present litigation etc.
- Brief facts of the case are as under:-
The Complainant booked the ticket for 29.05.2015 in Train No. 12302 Kolkata Rajdhani Express (ER) vide PNR No. 2751655816 from Delhi to Kolkata under Tatkal Quota by paying Rs. 3345.60/-. He further alleged that despite payment of excessive charges, the Complainant was allotted the most inconvenient and disadvantageous seat which falls in passage being side lower seat No. 29 in coach A4 of the said train. Copy of the ticket is annexed herewith as Annexure-C/2.
- The seat No. 29 was the side lower seat. It does not have equal sitting space as compared to other seats. It also does not adequate space for luggage. The space of this seat must be 2/3 of the other normal seats. The Complainant was carrying one suitcase and laptop alongwith shoulder bag. The suitcase was placed under the said seat but laptop bag could not be either placed on sleeper (as limited space for sleeping) or placed under the seat. The Complainant removed wallet (with money) and cards from pockets and placed in laptop bag and put the bag among the luggage of passengers on seat No. 25 to 28 across aisle which was covered by curtain.
- The Complainant got a call from the GRP (Govt. Railway Police) staff at around 6:00 AM on 30.07.2015 informing him that his laptop bag was found unclaimed at seat No. 6 in coach No. A4 (the same coach in which Complainant was travelling). On examination of the bag, it was found that cash approx. Rs. 20,000/- and some religious coins of immense value were missing from the wallet of the Complainant. The Complainant briefed Train Superintendent about the incident and requested to register a report. He was handed over 3 printed copies for lodging FIR/complaint in case of theft. The 3 copies were filled in and handed over to Superintendent. One copy was signed, stamped and handed over back to Complainant. Nothing was heard from the Railway even after the lapse of 10 months. Hence the complaint.
- OP, on the other hand, filed its reply interalia raising preliminary objections. The OP challenged the complaint on the ground of territorial jurisdiction. As the incident happened between Mughalsarai and Dhanbad which is outside the jurisdiction of this Forum. As per Section 79 of CPC, only the General Manager of the concerned Railway was to be arrayed as party. It was also further stated that the Complainant procured e-ticket using internet booking service provided by IRCTC. The said service gives opportunity to the intending reservists to book berths according to their choice. It was contended by OP that enough space was available at side lower berth to accommodate the luggage. The laptop bag was placed by the Complainant at the space below the berth No. 25/27 (both lower berth) adjacent cubicle at his own responsibility and OP is totally unaware of the fact. Therefore, the Complainant cannot blame the OP for any loss caused on account of his own fault. The Complainant was entitled to keep his personal luggage at the space provided below the berth No. 23 and not at the space provided below berth 25/27 of said coach. Passengers of berths No. 25 to 28 were entitled to keep their personal luggage at space provided below the berth No. 25/27 of said coach. It was also contended that the FIR lodged by the Complainant was forwarded to the concerned Government Police Authority i.e. GRP/Dhanbad by OP on 11.08.2015. Unless it is proved before appropriate Court that the alleged loss/theft took place due to negligence on the part of OP or its employees, the Complainant is not entitled to any compensation in view of Section 100 of the Railway Act 1989.
- The OP referred the case of National Commission in R.P. No.650 of 2015 in the matter of GM-Northern Railway Vs. Prasanta Kumar Ganguly- wherein it was held that the Railway cannot be held responsible for alleged loss due to theft. The OP also referred to the judgment passed by Hon’ble Supreme Court in the matter of Sonic Surgical Vs. National Insurance Company Ltd. 2010 CPJ 2 (SC). The instant case is squarely covered by the judgment (Supra).
- Both the parties have filed written submissions and evidence in affidavit. Written Statement is on record so is rejoinder. Oral arguments were heard & concluded.
- This Commission has gone into the entire gamut of issues. Due consideration was given to the arguments. The Complainant challenged the contention of OP for territorial jurisdiction and further maintained that the Complainant had boarded the train from Delhi and the OP’s office is also in Delhi. The question of territorial jurisdiction is not found sustainable as observed by this Commission also. The Complainant also maintained that the OPs had relinquished the alleged rights of protection under Section 100 of Railway Act 1989 by notifying their “Citizen Charter”. It was assailed on the ground that the facts of GM/Northern Railway Vs. Prasant Kumar are different from facts of instant case. The Complainant while addressing the argument, mentioned the case of Hon’ble National Commission in Divisional Railway Manager and Anr Vs Abhishankar Adhikar (R P No. 904 in 2005) wherein it was upheld that “TTE and coach attendant shall remain vigilant and ensure that none other than ticket holders shall enter the train”.
The Complainant also placed reliance on the following judgments:-
- Sumati Devi M. Dhanwatay Vs. Union of India & others where the Hon’ble Supreme Court held that this apart (C.P. Act) under Section 124-A of Railway Act 1989, the Railway Administration cannot escape the liability having regard to the facts and circumstances of the case and in the light of incident that taken place.
- Vinod Sanghi Vs. Union of India-Railway. The Hon’ble National Commission in the above case held that “the ground of the Railway in terms of Section 100 Railway Act 1989 was not upheld by the District Commission & State Commission and duly examined the contested issues of Railway and found liable for the loss of luggage.”
- As would be seen from the facts of the case that the luggage was removed from the place where it was placed by the Complainant. As held in various judgments of Hon’ble Courts that if the coach attendant/TTE would have been vigilant and no other unauthorized person should have been allowed, there were fair chances that the luggage would not have been removed and the cash and religious coin would not have been taken away.
- After considering the facts and circumstances in the case, this Commission is convinced that had the vigilance on the part of OP exercised, there would have been no loss of cash/coin. The facts of the case clearly establish that the OPs are short of obligation. It is also a fact that there is less space on the side lower berth. The Complainant would not have faced the situation as narrated by him. Therefore, the OPs are directed to pay Rs. 20,000/- cash which was stolen and interest @ 4% p.a. from the date of institution of the case within three months from the receipt of this order failing which the rate of interest shall be levied @ 6% p.a. till its realization. No other request of the Complainant are acceded to and no substantive evidence in respect of religious coins advanced by the complainant. Hence these requests are rejected.
Parties to be provided copy of order as per rules. File be consigned to the record room. Order be uploaded on the website.
