This revision petition has been filed by the Petitioner, Union of India and others against order dated 21.9.2015 passed by the State Consumer Disputes Redressal Commission, Punjab ( for short, State Commission) in First Appeal No.1033 of 2012. 2. Brief facts of the case are that Complainant/Respondent filed complaint before the learned District Consumer Forum, Amritsar against the Opposite Parties/Petitioners alleging inter alia that he is studying in Mumbai and on 11.12.2010 he was travelling in Train No.2904 Golden Temple Mail, Coach No.AB-1 with Seat No.2 from Amritsar to Mumbai and boarded at Amritsar. When the said train reached and halted at Nizamuddin Station on 12.12.2010 at about 7.30 a.m. the complainant went to washroom for 3-4 minutes and when he returned back to his seat, he found that his bag was stolen. Complainant lodged a complaint regarding theft of his belongings to Sh. Namoo Ram, T.T. posted at DCTI office, Platform No.2, Kota Junction. The stolen bag was containing Laptop, Wallet, PAN Card, Driving Licence, two ATM cards, Medical Insurance Card, Old College Identity Card, watch, notebook, magazine, Parker Pen, Pen drive, Tata Photon USB Modem, two CDS etc. Complaint lodged FIR No.6 dated 23.1.2011 u/s 379 IPC before the Police Station at Hazarat Nizamuddin Railway Station. Hence, with the aforesaid facts, the complainant filed the Complaint Case No.638 of 2011 before the District Forum, Amritsar on 3.8.2011 against the petitioners claiming total compensation of Rs.1.50 lacs besides cost of litigation. On being noticed, the petitioners appeared, filed their written statement and vehemently opposed the allegations of the complainant on various grounds. The District Forum after considering submission of both sides, vide order dated 20.6.2012 allowed complaint directing the petitioners to pay compensation of Rs.1.00 lac for loss of bag, Rs.5,000/- for mental harassment and R.2,000/- as cost of litigation. Being aggrieved, the petitioners preferred First Appeal No.1033 of 2012 before the State Commission on 9.8.2012. The State Commission finally heard the matter and vide order dated 21.9.2015 dismissed the appeal of the petitioners and upheld the order of the District Forum. 3. Hence, this revision petition. 4. Heard the learned counsel for both the parties and perused the record. 5. Learned counsel for the petitioners stated that both the fora below have not correctly appreciated Section 100 of the Railways Act, 1989 which 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 servant.” 6. The learned counsel for the petitioners argued that there is no liability of the Indian Railways for the luggage accompanied by the passenger if the same is not booked separately and if there is no negligence or misconduct on the part of any employee of the Indian Railways for the loss of the luggage. It was argued that no such negligence or misconduct has been alleged in the complaint. It is only being argued by the respondent/complainant that notorious persons might have entered the train due to negligence on the part of TTE or the conductor of the reserved coach. In fact, according to the complainant himself, his bag was stolen when the train had halted at Nizamuddin Station and complainant went to washroom for some time keeping his luggage unattended. When the train is halting at Station, some passengers disembark the train and some other enter the coach. The complainant should have been more careful to guard his luggage at the station when the train had halted. At the station, it is difficult to watch and even some fellow passenger who disembarked at Nizamuddin Station might have taken bag of the complainant alongwith him. As there is no system of checking the baggage of disembarking passengers, no liability can be fastened on the staff of the Indian Railways at that time. Thus, according to Section 100 of Railways Act, 1989, the petitioners are not liable to pay any damage or compensation to the complainant for loss of his accompanied luggage. 7. To support his assertions, the learned counsel for the petitioners cited a number of judgments given by this Commission which are listed below. In these judgments, this Commission has not found Indian Railways liable in similar cases. 1) General Manager, Northern Railway and others vs. Prasanta Kumar Ganguly (R.P. No.650 of 2015 decided on 7.12.2016). 2) Vivek Chhibba vs. South East Central Railway Bilaspur, (Revision Petition No.1939 of 2016 dated 20.1.2017) 3. Union of India and others vs. Rama Shanker Misra and another I(2016) CPJ 123 (NC) 4. Dinesh Agrawal vs. Indian Railway and others (R.P. No.3265 of 2014 decided on 3.9.2015. 8. On the other hand, the learned counsel for the respondent/complainant stated that the Railway staff particularly the TTE and the conductor of the coach are responsible to ensure that no unauthorized person entered the coach. The fact that the bag of the complainant was stolen within 3-4 minutes when the complainant had gone to the washroom, clearly speaks that some unauthorized persons came and took away the bag of the complainant. Clearly there is negligence on the part of the TTE and the conductor of the coach. Thus, even in accordance with Section 100 of the Railways Act, 1989, the Indian Railways is liable to compensate for the loss of the luggage. The learned counsel referred to the judgment of this Commission passed in Union of India through its General Manager vs. Dr (Smt.) Shobha Agarwal (R.P. No. 602 of 2013 decided on 22nd July, 2013) wherein in a similar case this Commission has allowed the compensation of Rs.2 lakhs for loss of luggage . The learned counsel further emphasized that the SLP against this order was also dismissed by the Hon’ble Supreme Court. Thus, the principle of compensation for loss of luggage under a reserved compartment has been upheld in a way by the Hon’ble Supreme Court. It was further point out that both the fora below have given concurrent finding and scope under the revision petition is very limited. 9. I have given a thoughtful consideration to the arguments advanced by both the parties and have carefully examined the material on record. As stated in the complaint itself, the bag of the complainant was stolen when the train was halted at Nizamuddin Station and the complainant went to washroom for 3-4 minutes . Thus, it is clear that the luggage was lost when the train was at halt at the station when passengers get down the train and some others board the train. In such situation, if the luggage was lying unattended, anybody could have walked off with the bag. This is the time when the TTE and the conductor are also busy in some other necessary activities. Some time even the staff is changed at such big stations. Otherwise, also there are instructions that passengers should not use the washroom when the train is halting at a railway station. In many judgments passed by this Commission, this Commission has taken a view that Section 100 of the Railways Act, 1989 is applicable in such cases and until some negligence or misconduct of any employee is proved, the Indian Railways is not liable. This Commission in the case of Union of India and others vs. Rama Shanker Misra and another (supra) has held that : “Consumer Protection Act, 1986 – Sections 2(1)(g), 21(b) – Railways –baggage stolen by cutting chain of lock - Loss of valuables – Deficiency in service allege – Compensation claimed – District Forum allowed complaint – State Commission partly allowed appeal - Hence revision – No averment in complaint which could constitute any negligence or misconduct or even deficiency in service on part of railways or any of its employees- Petitioner could have been liable to compensate only if some negligence or misconduct on part of railway employee was established– As no such negligence having even been alleged it would be difficult to sustain impugned order.” 10. Similarly, this Commission in a recent judgment passed in Dinesh Agrawal vs. Indian Railway and others (supra) has observed: “The learned counsel for the petitioner submits that though no unauthorized person was entitled to enter the compartment in which the complainant and his wife were travelling, the railway officials permitted the such persons to enter the coach and it was on account of the such unauthorized entry that the theft could be possible. We however find that there is no evidence of any unauthorized person having actually entered the coach in which the complainant and his wife were travelling. This is complainant’s own case that they were sleeping at the time of theft took place. Therefore, they possibly cannot have personal knowledge about the alleged presence of some unauthorized persons in the coach. Hence, we are satisfied that the alleged presence of unauthorized persons in the reserved compartment could not be established. The possibility of a fellow passenger, travelling on a reserved ticket having committed the theft and got down at a station, when the complainant was asleep cannot be ruled out in the facts and circumstances of the case.” 11. The case cited by the learned counsel for the respondent/complainant which is Union of India through its General Manager vs. Dr (Smt.) Shobha Agarwal (supra) has different facts. In fact, the complainant in the referred case had taken all the precautions and had tied up their suitcase with the chains fastened with the berth and the theft has occurred after cutting the chain during night. Whereas in the present case, theft had occurred in the morning when the train was halting at a big station and the bag was left unattended for some time by the complainant. Thus, the case cited by the learned counsel for the respondent/complainant is not directly applicable in the present case. 12. Based on the above examination, I find force in the revision petition and the same is allowed. Order dated 21.9.2015 of the State Commission as well as order dated 20.6.2012 passed by the District Forum are set aside. Consequently, the complaint also stands dismissed. |
