Per Mr.S.R.Khanzode, Hon’ble Judicial Member
This appeal takes an exception to an order dated 06/08/2009 passed in consumer complaint no.114/2008 Lt.Cdr.Pratap Panditrao Pawar v/s. General Manager, Eastern Railways and others, passed by District Consumer Disputes Redressal Forum, Pune (‘forum below’ in short).
The consumer complaint relating to deficiency in service on the part of Indian Railways and its employees was alleged and as a result of which there was a theft of personal luggage of the respondents/original complainants (herein after referred as ‘complainant’). Forum below accepted the contention of the complainant and awarded compensation of `50,000/- payable jointly and severally from all opponents (in all 4 opponents) along with interest @ 9% p.a. from 11/7/2007 i.e. the date when the FIR of the theft was filed till its realization. `1,000/- cost were also awarded. Feeling aggrieved thereby, original opposite party no.2 –General Manager, Central Railway, CST, Mumbai preferred this appeal.
It may be mentioned here that though deficiency of service is alleged on the part of the Indian Railways, which is a separate and distinct juristic person, complaint is not filed against it but against the ‘General Manager of Eastern Railways’, ‘Central Railway’ and one ‘Divisional Railway Manager (Commercial) of Chakradharpur, Jharkhand State’. Opposite party nos.2 & 4 are one and the same since the party is described with two different addresses, namely, one address shown at CST Railway station, Mumbai and other address is shown at Pune Railway Station, Pune. All these officials are separate and distinct juristic persons. An organization like Indian Railway and its officials are not one and the same considering the definition of ‘person’ within the meaning of section 2(1)(m) of Consumer Protection Act, 1986 (herein after referred as ‘Act’ for brevity).
It is the grievance of the complainant that they had booked ticket in Azad Hind Express in AC two tier for the journey from Pune to Howrah. They got reservation in A-1 coach bearing berth nos.31, 33 & 35. According to them after leaving the train at Kharakpur railway station around 7.50 a.m. on 11/7/2007, just prior to that they had noticed the items from their personal luggage inter-alia including a mobile, a money purse containing cash of `27,600/-, Foreign exchange equivalent to INR `1,000/-, credit cards and debit cards were found missing. It is alleged that these items were stolen by some miscreants and it is further alleged that though the coach was reserved, TTE on duty and the coach attendant whose names were mentioned, did not take proper care not to allow vendors and unauthorized persons to enter into the coach particularly during the night. Thus, alleging negligence on the part of railway officials, this consumer complaint was filed. Names of the TTE were given as one Mr.Vishwakarma and Mr.N.K.Roy.
The opponents (opposite party) in their joint written version denied the allegations of alleged negligence on the part of railway officials. It is further submitted on their behalf that in respect of personal luggage, there is no responsibility on its officials. It is also denied that the unauthorized persons were allowed inside the coach as alleged by the complainant and that the TTE on duty as well as coach attendant were sleeping.
Heard Mr.T.J.Padian-Advocate for the appellant and Mr.Jayant Chitnis-Advocate for the respondents.
The opponent relied upon the affidavit of Mr.Sudesh Vishwakarma and Mr.N.Kumar Roy. Both are TTEs and were assigned the duties in other AC coaches and sleeper coaches and not the appellant’s coach A-1 from which the complainants were travelling. However, they confirmed that they were not sleeping, were attending their respective coaches and they even took precaution of closing the doors in the night and did not allow any unauthorized passengers or vendors to enter in the coach. Mr.N.K.Roy specifically stated that he took personal precaution to close the doors of AC coaches so as to prevent entry of any unauthorized person and vendors. Their such testimony goes unchallenged and they were never asked for any cross examination or no interrogatories were presented to them on behalf of the complainants. Forum while assessing evidence on probabilities perhaps carried away by the alleged service status of complainant no.1-Mr.Pratap Panditrao Pawar and held that why such officer from the services of the Indian Navy would tell lie and preferred to reject the testimonies of above referred railway officials. We are not impressed by such evaluation of the evidence on record by the forum. It may be pointed out that in a departmental enquiry against the complainant, since complainant no.1-Mr.Pratap Panditrao Pawar was carrying some confidential documents of the Indian Navy and, eventually, lost them; the Indian Navy found the officer to be blamed and it is reflected in their letter dated 14th August 2007 written by Vice Admiral-Flag Officer Commanding-in-Chief, Navy office, Kolkata; as under:-
“The analysis of case reveals that Lt.Cdr Pratap Pawar (04287-T) was negligent as he failed to take adequate precautions to ensure safe custody of in accordance with Para 16 of CNO 01/03, resulting in its loss.”
Copy of the said letter is relied by the complainant himself and presented to us while making the submissions.
Moreover, the alleged theft in question is also not established in the instant case. Theft is inferred only when the items were found missing after inspecting the personal luggage and the complainant inferred that the articles referred above were stolen. Whether they are kept at one place in a bag or pouch or container or in different baggages, is not made clear.
Much stress has been given on behalf of the complainant to section 100 of the Railways Act and duties of TTE. Section 100 speaks of goods and luggage and as far as luggage i.e. personal belonging carried by the passengers is concerned, no responsibility on the railway administration would be fastened unless it is proved that the loss, destruction, damage or deterioration was due to negligence or misconduct on part of railway administration or on the part of its servant. In the instant case, complainant miserably failed to establish any negligence on the part of servants of Indian railways and their arise no question of any misconduct on part of Indian railway administration. Affidavits of TTEs, Mr.Vishwakarma and Mr.N.K.Roy, who were on duty in the AC coaches other than coach A-1 and named by the complainant categorically ruled out any negligence on their part or that they failed to take proper precautions by not closing the doors during the night time or preventing entry of unauthorized persons including vendors from outside.
As earlier pointed out, the Indian Railway is not made as party and so also its officials TTE Mr.Vishwakarma and Mr.N.K.Roy are not the parties either before the forum or before us. As it appears, the complaint is tried to be made against ‘Indian Railway’ but actually naming its functionaries at different divisional levels i.e. General Managers and their Divisional Manager of the division. Thus, in effect the complaint can be presumed as filed against the Indian Railway. For the reasons stated, Impugned order cannot be supported with and needs to be rejected entirely, not only against the appellant /original opposite party no.2 but against all the original opponents.
Appellant did not raise any other point except the one dealt by us and, particularly, did not raise the point such as jurisdiction of Consumer forum to entertain this consumer complaint, etc.
For the reasons stated above, we hold accordingly and pass following order:-
ORDER
Appeal is allowed.
Impugned order dated 06/08/2009 is set aside and in the result, consumer complaint no.114/2008 stands dismissed.
In the given circumstances both the parties to bear their own cost.
Copies of the order be furnished to the parties.
