BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 1071/2006 against C.D.  1213/2004, Dist. Forum-I, Visakapatnam

Between:

Smt. Sarita Jhawar

W/o. Ramesh Kumar Jhawar

R/o. 13-1-1/1, Anthony Nagar

Near St. Anthony High School

Visakapatnam.                                            ***                         Appellant/

                                                                                                Complainant

And

1. The General Manager

ECO Railway, Garden Reach

Calcutta.

2. The Divisional Manager

East Coast Railway

DRM Office, Visakapatnam.                        ***                         Respondent/

                                                                                                Opposite Parties.

Counsel for the Appellant:                          M/s.  V. Gourisankara Rao

Counsel for the Resp:                                 Mr.  V. Vinod Kumar.

                          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

                                            SMT. M. SHREESHA, MEMBER

&

                                           SRI  K. SATYANAND, MEMBER

FRIDAY, THIS  THE NINETEENTH  DAY OF  JUNE TWO THOUSAND NINE

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                 Appellant is unsuccessful complainant. 

2)                The case of the complainant in brief is that  she is a resident of  Visakapatnam, and  she visited  Calcutta  on 28.1.2004 in connection with  a function.  While returning  to Visakapatnam  on 28.1.2004  by train  No. 6003 occupying berth No. 15 in S7 a  reserved compartment, when she woke up she found 3 pieces of luggage which she secured  with steel chain and lock in the lower berth was cut.   Among them one red and black rexine box wherein she kept her jewellery  and cash worth Rs. 1.50 lakhs was missing.   She complained to TTE at Berhampur under prescribed format.   She furnished details  of  the  articles  lost  when  the  police  officials  asked  the information. 

Her baggage was lost despite it was a reserved compartment. This   was due to negligence  on the part of railways.   Repeated reminders to the railways did not evoke any response, therefore, she issued a legal notice  followed by  complaint claiming Rs. 1,50,000/- towards value of the articles besides Rs. 1,000/- towards correspondence, Rs. 1 lakh towards damages together with costs.

3)                The respondent railways resisted the case.   It alleged that  the complainant does not come under the definition of ‘consumer’ and therefore complaint was not maintainable.   She did not avail any of the services from the railways  on payment of charges for carrying her luggage.   By virtue of Section 100  of the Railways Act  the Railway Administration shall not be responsible for loss of luggage unless the luggage is booked and  unless negligence is proved.   The complainant herself was responsible for safety of her luggage.   The railways are providing  necessary security personnel  in the trains such as  RPF & GRP for the  general safety  of the passengers and their luggage.   Despite that if there is any theft the railway administration is not liable.   The complaint  was silent as to the items that were lost  from the baggage.   In the absence of particulars   it is not believable that she was carrying  items worth Rs. 1.50 lakhs.   The railway administration has provided iron  wire beneath the berths so as to secure the passenger luggage.   It was due to negligence of complainant, her luggage was lost,   and therefore it was not liable to pay any compensation.    It prayed for dismissal of the complaint with costs.

4)                The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A7 marked.  The respondent railways did not lead any evidence or the  documents.   

5)                The Dist. Forum after considering the evidence placed on record opined that the complainant did not let in any evidence  of co-passengers besides furnishing description of the items that were lost..  Holding that she did not substantiate the claim,  dismissed the complaint. 

6)                Aggrieved by the said decision, the complainant preferred this appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective.   It has failed to consider  Ex. A1 very first letter issued estimating the value of articles at Rs. 1.50 lakhs  mentioning the description as  golden, diamond, jewellery, silver articles, cloths, cash and wrist watch etc.  List was annexed to  Ex. A3 letter.   In the light of Exs.  A1 to A6 the Dist. Forum ought to have awarded total compensation.   

7)                The point that arises for consideration is whether the complainant is entitled to value of the items that were lost while travelling,  and if so, to what amount?

8)                It is an undisputed fact that  the complainant travelled  by train No. 6003 in  S7 coach at Berth No. 7   on  28.1.2004 after getting it reserved by paying necessary charges from Calcutta to Visakapatnam.  She alleges that after boarding the train along with 3 pieces of luggage she placed it under lower berth and secured with steel chain lock and key,  when she woke up at about 6.00 to 6.30 a.m. she found her luggage was missing.  Immediately, she observed that the steel chain with which she secured the luggage was cut.   She lodged a complaint  in the prescribed format  to TTE  at Berahmpur station of Orissa State, which was acknowledged by him  on 29.1.2004 vide Ex. A2.  For the report made  on 29 1..2004 under Ex. A2 the  Railway Police at Berhumper registered a case  on 10.3.2004  in FIR No. 6(1)/2004.  At  Coloum No. 7  Particulars of property looted or stolen  and estimated cost thereof,  it was  mentioned theft of   “Red 2 black checks boxes.   Sub-clause (a) prescribes  full description of identifiable property, if there is any, should be given with such description.   She had mentioned  chain-1, wrist watch-1,  Golden +  Diamond Jewellery, up to date ladies ornament with cash valued nearly  about   Rs. 1,50,000/-“     In  FIR at  Coloum No. 9  Particulars of properties  stolen/involved (attach separate sheet, if required) it was mentioned  “Theft of one Red Black checks rexine box containing golden and diamond jewellery, silver articles, cloths, wrist watch and cash etc. worth about Rs. 1,50,000/-.    There is a separate column to mention “Approximate value of properties stolen/involved”,   it was mentioned  Rs. 1,50,000/-.   Under the coloumn  FIR contents (attach separate sheet, if required)  the Officer-in-charge, GRPF, Berhampur mentioned ‘ Written report of the complainant  which is treated as FIR No. 278.  Photocopy is enclosed herewith).   

9)                Obviously, after the complainant reminded about the  loss of her articles by way of letter  Dt.  9. 2. 2004  the  Officer-in-charge,  GRPS  Police, Berhampur sought the details of list of stolen articles, viz.,  each item,  separately and put some queries  under Ex. A4,    she gave reply under Ex. A3 informing that “I would like to place on record that the detailed list showing item-wise approximate value was handed over to your goodself  personally on 17.3.2004 during your recent visit to Visakapatnam when you called on me for detailed discussion regarding clarification  of your queries  at Visakapatnam Railwaystation GRP’s Office.   Accordingly all your queries were clarified.” The list according to her was  Ex. A1 which was  enclosed while issuing registered letter on  9.2.2004.   Curiously,  the railway administration did not give reply to the notice issued under Ex. A1 disputing the fact that she did not enclose the list of items  that  were lost.   It was appended to Ex. A1 her registered notice.   Obviously, the railway police having satisfied with her version,  though belatedly,  got the FIR registered on 10.3.2004  for the complaint issued  by her on  29.1.2004.   They sought the details  by way of letter Dt. 11.3.2004 despite the fact that she lodged a complaint under Ex. A2  and followed by letter Dt.  9.2.2004 under Ex. A1.   

10)              At no point of time, the railway administration disputed the version of the complainant.   It is not the case of the  railway administration or the police,  who must have conducted the enquiry or investigation,  that the complainant has given a false complaint in order to gain illegally  by giving a false complaint.   It is not known as to what happened to the investigation made by the police.   The complainant is a business woman.  Admittedly she visited Calcutta  to attend a function.  Naturally it  is common for the ladies to carry gold ornaments, jewellery  and cash to attend to a function,  more so, when she was travelling in a reserved compartment.   She thought that she was secure and she need  not afraid of any theft.   At the earliest  viz., the moment she found that she lost the baggage with valuable ornaments etc.

 she gave report during her travel to the Railway Police at Berhampur.   She is a resident of Visakapatnam.  She visited Calcutta  since the theft was occurred in between she gave report to the Railway Police at Berhampur. 

11)               At the cost of repetition, we may state that  the affidavit of the complainant wherein she swore and reiterated the items that were lost and the value was put  at Rs. 1,50,000/-, the railway administration did not file any evidence contradicting  her affidavit evidence. 

12)              A peculiar contention was taken by the railways that the complainant ought to have filed the  affidavit evidence of  co-passengers or bills  or other material to show that she possessed those articles which she lost and therefore an adverse inference has to be drawn.   This is a peculiar way of looking at the things.   Co-passengers are not related to the complainant.   She was alone travelling.   Co-passengers had purchased the tickets from the railway administration who travelled along with her.   The railway administration would be having the list of passengers and their addresses.  They are having police officials where investigation could be made.  If they intend to deny the just claim made by the complainant they ought to have taken the affidavits of the co-passengers to prove that no theft had taken place.   They could have filed the affidavits of  TTE and other staff who were attached to the compartment.    It is for them to prove that the complainant was giving a false version.   The complainant has given a complaint immediately, basing on which the very police had registered a case.   She had no occasion or time to foist a false case against railway administration for claiming the amount the yardstick provided under the Evidence Act need not be applied,  while resolving the cases under the Consumer Protection Act and it is principles of natural justice that govern.   However, we may state that even  going by principles of  Evidence Act,  Section 134 of the Indian Evidence Act  lays down that  no particular number of witness shall  be necessary for  proof of any fact.

 It is quality of evidence and not quantity of evidence.   Evidence of solitary witness if reliable is sufficient.   When the complainant was travelling alone and  when she found that her baggage was lost  immediately  she gave a complaint  mentioning  the  description   of   items  lost   and   their   value.   There is no reason why the same should not be believed,   more so, when the  railway administration who is having wherewithal to prove otherwise by examining the railway officials, railway police etc.   The long  silence on the part of railway administration  despite the fact  that they have enquired,   evident from their own letters show that they having  satisfied  that the complainant  had lost those articles  and could not secure them  did not respond.   The contention  of the railways that  Section 100 of the Railways Act makes railways not liable  for the theft unless it is specifically booked.    Section 100 of the Railways Act reads as follows :

“100. Responsibility as carrier of luggage—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 given a receipt therefor, 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 servants.”

13)               The National Commission had an occasion to consider these provisions vis-à-vis  responsibility of the railways as carriers of the luggage  in  General Manager, Southern Railway Vs. Mrs. A. Shameem  reported in I (2004) CPJ 40 (NC).    It was observed that:

We have examined the  clause 100 , but find the immunity given is in a general sense. In reality, if the reserved compartment is not protected from intruders and if the railway chain when needed to be used to alert and to warn the Guard in emergency is itself deficiency. In the present case the respondent and co-passengers have pleaded that the TTE was present and yet ignored their pleas and did not offer any help or support, in our opinion is clear deficiency in service and negligence under Section 100 of the Railways Act, 1989. We would like to place reliance on our earlier decision in Union of India & Ors. v. K.K. Shukla & Ors., reported as III (2002) CPJ 191 (NC)=2002 CCC 82 (NC), where unauthorised persons boarded the train during Kissan Union Rally and  compensation was paid holding the Railways responsible for not protecting the reserved passenger. It is pertinent to re-produce the relevant extracts here :

“......Protection had been given to miscreants and law-breakers in performance to law-abiding citizens. We give no credence to the pleas of the Railways that the whole situation had created a law and order problem. Their stand is totally indefensible.

......... We are also unable to appreciate the reluctance of the Railway Police to act. It is not their duty to give protection to bona fide passengers ? Or is it their duty to give protection to rowdies and hooligans travelling without ticket ? If their duty is former it was certainly a case of dereliction of duty on their part.”

In the above decision the National Commission has considered the very same grounds that were raised by the railways in this case.   Referring to  decision of  Supreme Court   in   Sumati Devi  M. Dhanwatay Vs. Union of India reported in II ( 2004) CPJ 27 (SC)  and  the National Commission in  Union of India Vs. Sanjiv  Dilsuk Rai Dave reported in (I) 2003 CPJ 196 (NC) the State Commission in   Chief Commercial Manager, Eastern Railway Vs. Abhishankar Adhikary, reported in III (2005) CPJ 427  observed,   the contention  that the jurisdiction of  Consumer Fora ousted in view of Sections 13 & 15 of the  Railways Act not acceptable as loss of luggage not covered by Section 13  and as such Section 15  has no applicability.    Since these questions were already considered and covered by the above decisions, we do not intend to reiterate the same.   Suffice it to say  that evidence of  complainant was not contradicted by the railway administration  either by filing report of the investigation made by the railway police nor that of the TTE or other officials attached to the compartment on the day when the theft took place. 

14)              The learned counsel for the railway administration vehemently contended that without proving the articles that were lost, awarding amount as claimed by her would lead to disastrous results.  Exorbitant claims may be made under the guise of losing valuable articles  in the railway compartments. We may state that proving a fact depends on several circumstances.  Preponderance of probabilities  would be considered.   The facts need not be proved  like a criminal case viz., beyond all reasonable doubt  as to the value of the articles in order to claim compensation.   Awarding  amount towards loss of articles  depends upon various factors  such as  status of the parties, proximity of the claim made, reasonable time  during which the complaint was made and other circumstances.   Claiming  an amount of Rs. 1.50 lakhs cannot be said to be excessive or exorbitant  when she lost her jewellery, watch, cash etc., more so  when she had attended a function.   The railway police who have enquired into her status did not state that the claim was unreasonable, and  she could not have possessed those articles.  The moment she lost the articles,  without waiting even to think about the value of the articles  etc. she gave a complaint to the police mentioning the nature of the articles lost  and the value thereof.   She had no time  to foist a false case in order to claim compensation.  In fact, this is an uncharitable  allegation made against the complainant.   She had already lost her jewellery and other precious articles, and  to accuse of her with falsehood would be adding insult to the injury.   These contentions are  taken against  an innocent passenger  in order to deny  rightful claim without any moral compunction.   Proving a fact would not mean that she had to file  documents   in order to prove the value of articles.   It is impossible for anybody to keep the bills for everything purchased, more so, when she was travelling.   At any rate, nobody keeps the bills   when an article is purchased.  These contentions have no place in order to deny the  just claim of the complainant. 

15)              The Dist. Forum on specious reasoning, viz., considering that she could not have appended the list which she has filed with Ex. A1  at the time when she gave report to the police, altogether  denied her claim, forgetting the fact that  she had in fact mentioned the value at the earliest  in her FIR  issued to the railway police.   The Railways, we repeat, never complained that it was a false complaint.    The claim is spontaneous.  Denial of her claim was unjust. 

16)              In the result the appeal is allowed, consequently complaint is allowed directing  the respondents  to pay Rs. 1,50,000/- together with interest @ 6% p.a., from the date of theft  viz., 29.1.2004 till the date of payment.  Considering the fact that all through the railway administration without finding out as to what happened to her lost articles, made her to suffer and as such  we are awarding a compensation of Rs. 10,000/- towards mental agony which we feel reasonable and modest together with costs of Rs. 2,000/-.  Time for compliance four weeks.

1)       _______________________________

PRESIDENT                 

2)         _________________________________

 MEMBER

3)                _________________________________

 MEMBER

                                                          Dt.     19.  06.  2009.