Delhi

East Delhi

CC/459/2017

NIDHI SHARMA - Complainant(s)

Versus

MINISTRY OF INDIAN RAILWAY - Opp.Party(s)

12 Feb 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO. 459/17

 

Ms. Nidhi Sharma

D/o Shri Dayanand Sharma

R/o H. No. 296, Post Office Gali

Kapashera Border, New Delhi                                               ….Complainant

 

Vs.

           

1. Ministry of Indian Railway

Through its Chairman

Head Office: Rail Bhawan

Raisina Road

New Delhi – 110 001

 

2. The General Manager

Northern Railway

Baroda House

New Delhi – 110 001                                                                      …Opponents

 

 

Date of Institution: 06.11.2017

Judgement Reserved on: 12.02.2019

Judgement Passed on:28.02.2019

 

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Harpreet Kaur Charya (Member)

 

JUDGEMENT

            The present complaint has been filed by Ms. Nidhi Sharma against Ministry of Indian Railway (OP-1) and The General Manager, Northern Railway, Baroda House (OP-2), with allegations of unfair trade practice and deficiency in service.

 2.      The facts in brief are that the complainant boarded Train No. 12818 “Jharkhand Express” on 18.02.2016 from Anand Vihar Terminal, Delhi to Ranchi with her two luggage bags, which were properly locked with chain. On 19.02.2016, when the complainant woke up in the morning around 7 a.m., she found that one of her luggage (trolley bag) containing the following articles was missing by cutting of chain:

1. Certificates of 10^th, 12^th and Graduation

2. Diamond ring worth Rs. 67,850/-

3. Camera worth Rs. 14,999/-

4. Sarees worth Rs. 18,000/-

5. Denim Jeans worth Rs. 12,000/-

6. Trolley bag worth Rs. 5,000/-

7. Other cloths and valuable worth Rs. 8,000/-

          The total amount comes to Rs. 1,25,849/-

         

She tried to lodge complaint for the same with officials on duty, but neither of the officials including police personnel helped her nor took the responsibility.  Thereafter, the complainant called GRP and lodged a written FIR at Mughal Sarai Station on 19.02.2016.  It was stated that till date, no action was taken by the concerned officials of OPs.  

          The complainant sent a legal notice dated 02.04.2016 to all OPs, reply of which was not satisfactory.  Hence, the complainant prayed for award of claim/compensation of Rs. 5,25,849/- with 18% interest and litigation cost.

          The complainant has annexed copy of e-ticket (Annex. P1), list of articles (Annex. P-2), copy of FIR dated 19.02.2016 (Annex. P-3), copy of ID and photographs of officials on duty (Annex. P-4), copy of legal notice dated 02.04.2016 and its postal receipts (Annex. P-5 colly), copy of reply of notice dated 26.04.2016 and 31.05.2016.    

3.       Written Statement was filed on behalf of OP-1 and OP-2, where they have stated that this forum has no jurisdiction to entertain this complaint as the alleged incident had occurred at Mughal Sarai. 

As per Section 100 of Railway 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, 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 its servants”.  Hence, Indian Railways did not have liability for un-booked luggage.   

It was stated that neither the bag/luggage were booked with the railways nor declared/entrusted before railway or its staff.  The complainant was not a “Consumer” under the Consumer Protection Act, 1986.  She was a consumer of IRCTC Ltd. as per the complaint.  Rest of the contents of the complaint have been denied.

4.       The complainant has filed rejoinder to the WS of OPs, wherein she has controverted the pleas taken in the WS and reasserted her pleas. 

5.       In support of its case, the complainant have examined herself.  She has deposed on affidavit.  She has narrated the facts which have been stated in the complaint.    She has got exhibited documents such as photocopy of e-ticket (Annex.-1), photocopy of list of articles (Annex.-2), photocopy of FIR dated 19.02.2016 (Annex.-3), photocopy of identity proofs and photographs of the officials (Annex.-4) and photocopy of legal notice dated 06.04.2016 (Annex.-5).

          In defence, OP have examined Shri Ashish Roy, Divisional Commercial Manager, DRM Office, Northern Railway, who have deposed on oath and narrated the facts which have been stated in the written statement. 

6.       We have heard the arguments on behalf of Ld. Counsel for the parties and have perused the material placed on record.

 

          First and foremost the issue is, deciding on the preliminary objection taken by OP that the complainant was not a consumer qua OP:

As per Section 2(d) of the Consumer Protection Act, “Consumer” means any person who

1. -
2. ³[hires or avails of ] any services for a consideration which been paid or promised or partly paid [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ³[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person ⁴[but does not include a person who avails of such services for any commercial purpose];

And as per Section 2(b) – “Complainant” means –

1. A consumer; or
2. -

The complainant had booked the ticket from IRCTC (Indian Railway Catering and Tourism Corporation), which handles the catering, tourism and online ticketing operations of India Railways. Thus, the conjoined reading of Section 2(b) and 2(d)(ii), of the Consumer Protection Act, 1986, once, the complainant has availed the services of India Railways, she becomes the consumer qua OP.

Secondly, with respect to territorial jurisdiction, the complainant had boarded the train from Anand Vihar, thus, part of cause of action has arisen within the territorial jurisdiction of this Forum, therefore, this Forum is competent to adjudicate the present complaint.

Another defence taken by OP was that complainant had not booked her luggage with OP, thus they were not liable under Section 100 of the Railways Act.

Hon’ble National Commission in “Northern Railway V/s Neetu Gupta & Anr; in RP No. 3164 of 2017”, observed that:

The jurisdiction of court or an authority other than the Railway Claims Tribunal would be barred only in the matters in which the said tribunal would have jurisdiction in terms of the Railway Claim Tribunal Act. A perusal of Section 13 as extracted hereinabove would show that the said tribunal does not have jurisdiction to grant compensation to a passenger who has lost the luggage being carried by him or with him on account to the negligence of the Railway employee. The jurisdiction of the tribunal is restricted to the goods or animals entrusted to the Railway administration for carriage and compensation payable under Section 82 A and 124 A of the Railways Act. Though the tribunals would also have power to award compensation on account of an untoward incident in terms of Section 124 A of the India Railways Act, the compensation on account of loss of carriage being carried by passenger with him does not come under the jurisdiction of the Railways Claim Tribunal. Consequently the jurisdiction of Courts and Authorities would not be barred in respect of such a claim.

 

It was further observed in Northern Railway (Supra) that Indian Railways will not be responsible for the theft of loss of the luggage carried by the passengers with them unless it is shown that such loss of theft occurred due to negligence on the part of Railways or any of its employees.

The complainant had taken due care by keeping her luggage locked and chained even though she was travelling in reserved compartment, thus it was the duty of OP to make sure that no unauthorized entrants were allowed. The theft of the luggage of complainant show the lapse on the part in performance of their duty.

Complainant has successfully proved that there were officials/ guards on the train, as evident from the photographs annexed with the complaint. It was their duty not only to maintain the law and order, but also safe guard the passengers and their luggage. Therefore, OP is deficient in services.

Due to the omission on the part of the employees/ staff of OP, in discharging their duty, the complainant lost her class 10^th, 12^th and  Graduation certificates alongwith other valuable articles, which included Jewellery, clothes, camera, trolley etc. She has placed on record the photographs of the articles. During the course of argument, upon enquiry the complainant informed that bills were in the stolen luggage itself. At the same time, articles mentioned in the FIR registered with UP State Railways Police which of date 19.02.2016. the complainant has given the description of the stolen articles as “jewellery, camera, certificates and clothes”. The photographs placed by the complainant are of two pair of “diamond earrings” but in the complaint as well as in the legal notice dated 06.04.2016, it has been mentioned as “diamond ring” worth Rs. 67,850/-, which creates the doubt on the veracity of the complainant’s claim. The complainant could file duplicate bills for the alleged jewellery to support her contention, which she did not, but at the same time, the factum of theft is not disputed.   

However, in the absence of bills we award lump sum of                    Rs. 50,000/-, which will suffice in the interest of justice. Compensation on account of mental agony and harassment for Rs.10,000/- including litigation expenses is also awarded in favour of complainant as the staff/ employees of OP failed to discharge their duty. It is further directed that the amount awarded should be deducted from the salary of delinquent employees.

The order be complied within 30 days from the date of receipt of order.

Copy of the order be supplied to the parties as per rules.

          File be consigned to Record Room.

 

(DR. P.N. TIWARI)                                                     (HARPREET KAUR CHARYA)

       Member                                                                           Member    

 

            (SUKHDEV SINGH)

           President