APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON:___21^st  April  2017

ORDER

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 21.02.2014, passed by the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad (hereinafter referred to as “the State Commission”) in First Appeal No. 38/2013, The East Coast Railways & Anr. vs. Kadambari Rama Joga Rao & Anr., vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, Visakhapatnam, dated 11.10.2012,  in  Consumer Complaint No. 228/2011, filed by the present respondents, allowing the said complaint, was upheld.

2.      Briefly stated, the facts of the case are that the complainants/respondents, who are husband and wife, were travelling from Visakhapatnam to Bhuvaneswar by the train Visakha Express in IIIrd AC B1 compartment on 08.02.2001 and were allotted berth nos. 41 and 44.  They were going to Bhuvaneshwar to attend a wedding function of their relatives.  It is stated in the consumer complaint that when the said train halted at Khurda Road Railway station around 6.20 pm, two unauthorised women aged about 45 years and 17 years entered their compartment and lifted the handbag of the complainant containing cash of Rs. 3,500/- and gold/diamond items of Rs. 5 lakhs, besides one ICICI Bank credit card.  It is alleged that unauthorised intruders boarded the reserved compartment in collusion with the employees of the Railways and lifted their belongings.  An FIR was also lodged with the police.  Alleging deficiency in service against the opposite parties (OPs) Railways, the consumer complaint in question was filed, seeking directions to the OPs to pay a sum of Rs. 5,03,500/- i.e. the value of the ornaments lost and cash of Rs. 3,500/- and also for payment of compensation of Rs. 2 lakhs for mental agony and Rs. 5,000/- as cost of litigation.

3.      The complaint was resisted by the OP Railways by filing a written reply before the District Forum, in which they stated that the articles are carried by the passengers at their own risk and the Railways are not responsible for any loss/damage to the same, unless a formal booking of the belongings is made with the Railways and receipts issued, and unless it is proved that the loss/damage etc. was due to the negligence or misconduct on the part of the Railways.  The OPs also stated that the possibility of unauthorised persons having entered the reserved compartment was remote, as the halting period for the train was less than two minutes.  It was the duty of the passengers to take prudent care to protect their belongings.

4.      The OPs also stated that the coach attendant and the T.T.E. had discharged their duties correctly and did not allow any unauthorised persons in the compartment. 

5.      The District Forum, after taking into account the averments of the parties, held that the theft had taken place on account of the negligence of the OPs.  They allowed the complaint and awarded a total sum of Rs. 5,03,500/- alongwith compensation of Rs. 25,000/- and Rs. 5,000/- as cost of litigation.  Being aggrieved against the said order, the Railways filed an appeal before the State Commission and the said appeal having been dismissed vide impugned order, the OPs Railways are before this Commission by filing the present revision petition.

6.      During hearing, the learned counsel for the OPs Railways/petitioners has drawn attention to a copy of the form submitted by the complainants for lodging the FIR, which is duly signed by them, saying that they had lost gold/diamond jewellery worth Rs. 3 lakhs, besides cash of Rs. 3,500/-.  However, in the complaint, they mentioned that ornaments worth Rs. 5 lakhs were lost.  It was also mentioned in the said form that the handbag was just taken away from the seats by the two ladies, when the train stopped at platform no. 2.  The learned counsel stated that inconsistency in quoting the value of the articles, stated to have been lost, gives the impression that the complaint was not based on correct facts.  The learned counsel further argued that the consumer fora did not have the jurisdiction to deal with the complaint, as the same should have been filed under the Railways Claim Tribunal Act.  Further, the Railways had not charged any amount for carrying the luggage of the complainants and hence, no claim was payable to them, as the luggage was being carried without consideration. 

7.      The learned counsel for the respondents stated that the incident occurred due to the negligence of the Railways officials, which stood established from the documents on record.  There was no security personnel etc. with the train.  The Railways had also failed to examine the TTE etc. before the consumer fora.  The learned counsel argued that the complainants were not carrying the material, without paying charges for the same, as any passenger travelling in a train was authorised to carry a particular quantity of baggage without payment of additional cost.  The learned counsel stated that the impugned orders were in accordance with law and should be upheld.

8.      I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

9.      The first issue that merits consideration in the matter is whether the complaint in its present form is maintainable before the consumer fora and whether they had the jurisdiction to adjudicate the same.  The matter has been discussed in a number of judgments given by the Hon’ble Supreme Court and this Commission from time to time.  It has been stated in many of these judgments that Section ‘3’ of the Consumer Protection Act, provides an alternative remedy to the consumers to seek redressal of their grievances/complaints from the consumer fora.  The issue was discussed in detail in a recent order passed by this Commission in First Appeal No. 451 of 2015, Western Railway vs. Vinod Sharma, decided on 18.01.2017, in which, it was held that the remedy provided under Section ‘3’ of the Consumer Protection Act, 1986 was an alternative remedy given to the consumer to contest his claim with the opposite parties.  The judgments passed by the Hon’ble Supreme Court in State of Karnataka vs. Vishwabarathi House Building Co-op. Society, I (2003) CPJ 1 (SC), Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha (dead) through LRs, I (2004) CLT 20 (SC) and in Trans Mediterranean Airways vs. Universal Exports, IV 2011 CPJ 13(SC) were discussed in the above order, while taking this view.  The provisions of the Railway Claims Tribunal Act, 1987 and the Railways Act, 1989 were also discussed in the said order.  The issue is, therefore, no more res-integra and it is held that the consumer fora below had the jurisdiction to handle the complaint and hence, the same was maintainable before them. 

10.    The main issue that merits consideration in the matter is whether there has been any negligence on the part of the Railways officials in the matter of the alleged incident, for which the OP Railways could be held liable in any manner.  As per the version given in the complaint itself, when the train halted at Khurda Road railway station around 6.20 pm, two unauthorised women aged about 45 years and 17 years entered the reserved compartment and lifted the second complainant’s handbag, containing the cash and valuables.  It has nowhere been stated whether the complainants raised any hue and cry at that time and whether they alerted the other passengers or not.  It has not even been mentioned whether there were more passengers in the same compartment or not.  The incident is nowhere similar to a case where the passengers were sleeping at dead hours of night and some unauthorised persons came and went away with their belongings.  The time of the incident is 6.20 pm and at that time, the complainants as well as the other passengers are supposed to be in an alert condition.  The version given by the complainants that two ladies just came and took away the handbag without any commotion of any kind, seems to be wholly unnatural.  The complainants have also not stated as to whom they informed at that time from the Railways department, whether it was the coach attendant or the T.T.E. or their security personnel. 

11.    The contention made by the OPs Railways that in the form for lodging the FIR, the complainant stated categorically that they had lost ornaments worth Rs. 2-3 lakhs.  A perusal of the
hand-written proforma makes it clear with naked eye that the loss indicated was nearly two lakhs and subsequently, there has been overwriting, by which the numeral ‘2’ has been converted to ‘3’.  It is not understood, therefore, that how the complainants mentioned in the consumer complaint that they had lost ornaments worth Rs. 5 lakhs.  The difference in the two versions certainly points out a huge loss of credibility on the part of the complainants.  It is not understood, therefore, how the State Commission and District Forum mechanically allowed relief for the amount mentioned in the complaint, without looking at the other documents on record. 

12.    The main contention taken by the Railways is that under Section 100 of the Railways Act, 1989, a Railway Administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage, unless a railway servant has booked the luggage and gave the receipt, and in that case also, it should be proved that such loss/damage etc. was due to negligence or misconduct on the part of the servants of the Railway Administration.  In the present case, it is clear that the ornaments in question were not booked with the Railways.  As per para 1101 of the Commercial Manual of the Railways, the article of special value, i.e. jewellery, precious stones, currency notes etc. have to be booked with the Railways and their value declared on the forwarding note.  In the present case, no such booking was made with the Railways and hence, the provisions of Section 100 of the Railways Act, etc. are applicable in the matter. 

13.    The matter has been considered in a number of orders pronounced by this Commission from time to time.  In Revision Petition No. 4098/2014, decided on 07.08.2015, Union of India & Ors. vs. Rama Shanker Misra & Anr., a coordinate Bench of this Commission concluded that when negligence, misconduct or deficiency in service on the part of the Railways officials in the performance of their duties was not proved, the Railways were not liable for payment of any compensation to the complainants.  In the said order, reference was given to the decisions of this Commission in Union of India vs. Sanjiv Dilsukhrai Dave & Anr., I (2003) CPJ 72 (NC); Southern Eastern Railway vs. Ku. Bharati Arora, I (2004) CPJ 114 (NC), Union of India & Anr. vs. Anjana Singh Chauhan, IV (2014) CPJ 198 NC.

14.    The learned counsel for the respondents has drawn attention to the orders passed by this Commission in Union of India vs. Dr. Shobha Agarwal, III (2013) CPJ 469 (NC), South Central Railway & Ors. vs. Jagannath Mohan Shinde, II (2012) CPJ 640 (NC), Divisional Railway Manager & Anr. vs. Abhishankar Adhikari, (2006) 1 CPC 46 (NC) and G.M. South Central Railway vs. R. V. Kumar & Anr., IV (2005) CPJ 57 (NC) etc.  However, as stated already, in all these cases, negligence on the part of the Railway employees had been proved, whereas in the present case, no such negligence is attributable to any specific employee.

15.    During proceedings before this Commission, an affidavit was filed by Mr. M. Yelvender Yadav, Senior Divisional Commercial Manager of the East Coast Railways, in which he stated that when the train halted at Khurda Road railway station on 08.02.2011, 29 RPF personnel were deployed at that station.  The complainants could have alerted the RPF personnel to apprehend the two women, who are stated to have lifted the handbag of the respondent, but nothing of that sort was done by the complainants.  On the other hand, the version of the complainants in the consumer complaint just says, “two women entered and lifted”.  As already stated, there is no mention about raising any alarm etc. at the time of the incident, which was 6.20 pm.

16.    Based on the foregoing discussion, it is clear that the orders passed by the District Forum duly confirmed by the State Commission in appeal do not reflect any correct appreciation of the facts and circumstances on record.  The two consumer fora below have not mentioned even a word as to how they concluded that the OPs Railways were liable to pay Rs. 5 lakhs as compensation for the ornaments, whereas in the FIR itself, the value of the ornaments has been stated to be only Rs. 3 lakhs.  The orders passed by the State Commission as well as the District Forum are, therefore, clearly perverse in the eyes of law and these are set aside.  There is no merit in this consumer complaint, as no deficiency on the part of the Railway officials has been proved.  The consumer complaint in question, therefore, stands dismissed with no order as to costs.