Punjab

StateCommission

FA/12/1033

Union of India - Complainant(s)

Versus

Lakshit Joshi - Opp.Party(s)

Jagdish Marwaha

21 Sep 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

                                     

                   First Appeal No.1033 of 2012

 

                                                          Date of Institution: 09.08.2012                 

                                                          Date of Decision:  21.09.2015

 

1.       Union of India, Ministry of Railway, New Delhi, through its  Secretary.

 

2.       General Manager, Northern Railway, New Delhi.

 

                                                                                                                                                          … Appellants/Opposite parties

 

                       

                                      Versus

 

Lakshit Joshi S/o Sh. Lalit Joshi, r/o E-479, Ranjit Avenue, Amritsar.

 

                                                                                                                                                         …. Respondent/Complainant.

 

 

First Appeal against order dated 20.06.2012 passed by the District Consumer Disputes Redressal Forum, Amritsar.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

              Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant                  :     Sh.Jagdish Marwaha, Advocate  

          For the respondent              :     Ms. Rakhi Sharma, Advocate

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against respondent of this appeal (the complainant in the complaint), challenging order dated 20.06.2012 of District Consumer Disputes Redressal Forum Amritsar, accepting the complaint of the complainant and directing the OPs to pay the amount of Rs. 1 lac to the complainant, as loss of bag, besides compensation of Rs.5,000/- for mental harassment and Rs.2,000/- as costs of litigation. The instant appeal has been preferred by the opposite parties now appellants in this case against the same.

2.      The complainant Lakshit Joshi has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs, on the averments that the complainant has been studying at Mumbai for the last certain period. On 11.12.2010, the complainant travelled to Mumbai in Train No.2904 Golden Temple Mail, Coach No.AB-1 with seat no.2 from Amritsar to Mumbai by boarding from Amritsar on that day. Railway ticket purchased by the complainant has been enclosed with the complaint. When the said train reached at Nizamuddin Station on 12.12.2010 at about 7.30 a.m at Delhi, the complainant went to washroom for 3-4 minutes and when came back, he found his bag to have been stolen thereform. The complainant enquired about the fact of theft of his bag from the railway staff on duty, but to no effect. The complainant lodged the complaint regarding theft of his belongings with Sh. Nanoo Ram, T.T posted at DCTI Office, Platform no.2, Kota Junction, who was on duty in the above train. The bag of the complainant was stolen containing his laptop with adaptor (Sony make), wallet containing Rs.5000/- , PAN Card, driving license of the complainant, two ATM Cards of Karnatka Bank in the name of the complainant, medical insurance card of the complainant, old college identity card of the complainant, watch, notebook, magazine, pen of parker make, Pendrive, Tata Photon USB Modern, two CD's, which was valuable to complainant and laptop was also having thesis paper therein. The ATM of both the banks were blocked, but it was found that one ATM Card of Karnatka Bank of Oshiwara Branch Mumbai with card no.4214920313215579 was swapped at about 8.35 am on 12.12.2010 at Veer Service Station, IOC Manju Ka Tila Outer Ring Road Delhi. On reaching destination at Mumbai, the complainant also contacted the local GRP about this fact of theft, but nothing was done by OPs in this regard. The complainant lodged report with the Police Commissioner Crime Branch Delhi through fax on 15.12.2010, vide fax no.91+11+23490481. The father of the complainant Lalit Joshi also lodged complaint with respect to said incident with police station on 16.12.2010 through fax about theft of the belongings of the complainant. The complainant suffered a huge loss of more than Rs.1 lac. Legal notice dated 18.01.2011 was also served upon OP No.2, but to no effect. The complainant has, thus, filed the complaint against OPs praying for compensation of Rs.1 lac for loss of bag, Rs.50,000/- for mental harassment, besides cost of litigation.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant. It was averred in the written reply that Union of India could be impleaded only under Section 79 of Code of Civil Procedure through its General Manager. As per Section 100 of Railways Act, 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 given a receipt therefor. In case of luggage, which was kept by passenger in his charge, the railway administration is not liable. The complaint is alleged to be barred under Section 13 and 15 of the Railway Claims Tribunal Act. On merits, OPs admitted that complainant booked ticket from Amritsar to Mumbai for two persons having seat no.2 and 4 coupe with curtains. It was impossible that when the passenger went to wash room for a short period of 3-4 minutes and his belongings were taken away in presence of other passengers in the compartment. The OPs controverted the other averments of the complainant, as pleaded in the complaint and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence, the document special power of attorney of complainant Ex.C-1 along with copies of documents Ex.C-2 to ExC-13, affidavit of Sh. Lalit Joshi Ex.C-14. As against it, OPs tendered in evidence affidavit of Nanoo Ram Sharma HD, TTE WC Railway Ex.R-1, affidavit of B.L Mchhya Divisional Commercial Manager, West Central Railway Ex.R-2 along with copies of documents Ex.R-3 to Ex.R-5. On conclusion of evidence and arguments, the District Forum, Amritsar, accepted the complaint of the complainant by directing OPs to pay compensation of Rs.1 lac for loss of bag to the complainant, besides compensation of Rs.5,000/- for mental harassment and Rs.2,000/- as costs of litigation. Dissatisfied with the order of the District Forum Amritsar dated 20.06.2012, the OPs now appellants carried this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case.  

6.      The counsel for the appellants submitted that no cause of action accrued to complainant at Amritsar to file the complaint and hence the District Forum Amritsar passed the order without any such territorial jurisdiction vested in it. This point has been seriously contested by counsel for the appellant. The counsel for the appellant referred to law laid down by Supreme Court in "Sonic Surgical vs. National Insurance Company Ltd.", reported in 2010(1) CPC, 379 and "Indian Airlines Corporation & Others vs  Consumer Education & Research Society", reported in 1991, CPC Page 139 (National Commission) and "M/s Patel Roadways Ltd., Vs.  Tokusou-menon Paper Manufacturing Co. Ltd.", reported in 1997(1) CPC Page 666 (National Commission) and "New India Assurance Company Ltd.. Vs. Pavel Garg", reported in 2010(1) CPC Page 615 and "Southern Eastern Railway Vs. Ku.Bharti Arora," reported in 2004(2) CLT, Page 295 (National Commission) and "Manager Air India Ltd. vs. M. Kutti", reported in 2002(2) CPC Page 99 (National Commission). Similarly, appellants also referred to certain other judgments of our commission on the point that no cause of action accrued to complainant at Amritsar for filing the complaint. On the other hand, counsel for the respondent in this appeal argued that undoubtedly, theft of the stolen bag took place at Nizamudin Railway Station at Delhi, but the complainant purchased the railway ticket by making payment to the OPs at Amritsar and boarded the train at Amritsar  as well and cause of action has, thus, partly arisen at Amritsar. From examination of the above-referred authorities, as cited by the appellants, we are of this view that the cause of action in this case partly arose at Amritsar, where the complainant purchased the ticket as admitted by the OPs and boarded the train also. The theft took place in the transit on the railway station Nizzamudin. It has been held in "Manmohan Lal Sarin, Senior Advocte..Vs. M/s Emirates, New Delhi," reported in 2010(1) RCR Page 170 that part of cause of action had arisen at Chandigarh, as tickets were purchased at Chandigarh and payment was also made at Chandigarh and hence Chandigarh Consumer Forum has territorial jurisdiction to try the complaint. In this case, we find that tickets were purchased by the complainant at Amritsar and complainant boarded the train at Amritsar and cause of action partly accrued to the complainant to file the complaint at Amritsar. Consequently, the District Forum, Amritsar has been vested with the jurisdiction to try the complaint because cause of action partly arose at Amritsar, although, the theft of the suitcase took place at Delhi. Various authorities, as relied upon by the appellants would, thus, be not of any consequence because cause of action partly arose to the complainant at Amritsar in this case, where he purchased the ticket by making the payment to the OPs and also boarded the train, wherein in consequential loss of theft of his belongings took place.

7.      The next submission of counsel for the appellant before us is that the District Forum has not appreciated the evidence on the record and finding of the District Forum, thus, stood vitiated. We have duly considered the pleadings of the parties on the record. The complainant has executed special power of attorney document Ex.C-1 in favour of Lalit Joshi. Photocopy of railway ticket is Ex.C-2. Lodging of the complaint by the complainant is Ex.C-3 regarding theft of the bag. Ex.C-4 is account statement of the complainant to prove that amount of Rs.1061/- was withdrawn for payment of the ticket to OP at Amritsar. The police complaint lodged by the complainant is Ex.C-5 regarding theft of the bag. Notice sent to OPs is Ex.C-6 and Ex.C-8 is another legal notice. Ex.C-9 is postal receipt. FIR lodged by the complainant at Nizamudin Railway Station regarding theft of his bag is Ex.C-10. Untraced report of the case of theft of the complainant sent by SHO is Ex.C-11 on the record. The letters from OPs are Ex.C-12 and Ex.C-13. The affidavit of Lalit Joshi attorney holder of the complainant is Ex.C-14 on the record.

8.      To refute this evidence, OPs relied upon affidavit of Nanno Ram, HD TTC, WC Railay Kota, Kota Division Ex.R-1 on the record. He stated that he was vigilant while guiding the passenger that no unauthorized person should enter the compartment of the compartment of the train and hence there was no question of theft of the bag. OPs relied upon affidavit of B.L Machhya Divisional Commercial Manager, West Central Railway Kota, vide Ex.R-2 on the record in this regard. Similarly, the documents Ex.R-3 to Ex.R-5 have also been duly examined by us on the record. We find that there was no question of lodging the FIR by the complainant regarding theft of his bag, without suffering harassment in lodging the FIR regarding loss of his bag from the compartment of train, where he was travelling. In addition to that, the untraced report Ex.C-11 sent by the police and letters of the OPs are Ex.C-12 and Ex.C-13 are with regard to complaint of the complainant. The affidavit of the father of the complainant, as attorney holder of the complainant, is Ex.C-14 on the record in support of his case. We find that affidavits filed on the side of the complainant is quite sufficient to establish the fact of the theft of the bag. The contrary evidence brought on record by OPs in the shape of affidavit of Nanoo Ram HD/TTE Railway Kota, Kota Division is Ex.R-1 and affidavit of B.L. Machhya is Ex.R-2 coupled with document Ex.R-3 to Ex.R-5, but they are insufficient to refute the evidence of the complainant. The District Forum rightly found that there was negligence on the part of the OPs in the theft of the bag of the complainant. It was duty of the OPs to have checked the entry of the unauthorized persons in the booked compartment of the train. On this point, reference may be made to law laid down by the National Commission in "Southern Eastern Railway vs.  KU. Bharati Arora", reported in 1(2004) CPJ 114(NC), to the effect that, where the railways has not taken the proper precautions for the safety of luggage and property was not protected in reserved compartment, negligence of the Railway Administration was established. The contention of the railway is based on Section 100 of the Railway Act, which exempts them from their liability, which was rejected by Hon'ble National Commission in the above cited authority. We find that District Forum rightly returned the finding that had the Railway Administration properly checked the entry of the unauthorized passengers in the reserved compartment of the train, there was no question of theft of the bag of the complainant, containing valuable items at all. We are ad-idem with the findings of the District Forum on this point. The arguments raised by the appellants to the contrary are not accepted by us. Section 100 of the Railway Act is not applicable in this case, as per judgment of National Commission "Southern Eastern Railway vs.  KU. Bharati Arora (supra) because negligence on the part of the OPs is proved in this case.

9.      The next submission of the appellant is that there is no proof of loss of articles by the complainant. The value of the goods so stolen has been mentioned in FIR Ex.C-10. We find that many valuable items of the complainant were contained in the bag, which were stolen including thesis of the complainant on which the complainant had burnt midnight oil to prepare it. The District Forum duly examined this point and rightly assessed compensation of Rs.1 lac to the complainant for loss of the bag, besides Rs.5,000/- as compensation for mental harassment and Rs.2,000/- as costs of litigation. We find no ground for additur or remittitur of the quantum of compensation in this appeal, as awarded by the District Forum in the order under challenge in this appeal.

10.    The last but not least submission of the appellant is that complaint has not been filed by Lakshit Joshi complainant himself and rather it has been filed by one Lalit Joshi and hence complaint is not maintainable. We find that Lalit Joshi, being his father is also special power of attorney holder of the complainant, vide Ex.C-1 on the record. The Apex Court has held in "C.Venkatachalam vs. Ajit Kumar C.Shah & Company", reported in 2011(3) Page 316 (S.C) that authorized agents can appear on behalf of the complainant and have right to file, act, appear, argue the complaint to its logical conclusion. A party in the Consumer Fora cannot be compelled to engage services of an advocate. Such appearance of authorized agents is not inconsistent with Section 33 of Advocates Act. On the basis of law laid down by the Apex Court in the above-referred authority, we repel the submission of the appellant that complaint has not been filed by the complainant himself and merits dismissal on that score.

11.    As a result of our above discussion, we find no ground to disagree with the findings of the District Forum in this appeal and resultantly the order of the District Forum Amritsar dated 20.06.2012 is affirmed in this appeal. Finding no merit in the appeal, the same is hereby dismissed.

12.    The appellants have deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order. Remaining amount shall be paid by the appellants to the complainant within 45 days of the receipt of certified copy of the order.

13.    Arguments in this appeal were heard on 18.09.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                         (H. S GURAM)

                                                                             MEMBER

 

September 21,  2015.                                                              

(ravi)