The instant complaint has been filed by Smt. Kajal Pal, a house wife u/s.12 of C. P. Act with a prayer for issuing direction upon the O.Ps to pay Rs.50, 000/- as compensation, Rs.40, 000/- for mental agony and unnecessary harassment caused by the O.Ps and Rs.10, 000/- against the O.Ps as cost of the proceeding.
The fact of the case, in a nut shell, as per complaint is that the complainant in order to meet her husband at Alipurduar who is now posted as Additional District & Sessions Judge, boarded at Sealdah Railway Station with a view to proceed to New Cooch Behar Railway Station by Testa-Torsha Express where her husband was waiting for her. The Railway Ticket was booked and purchased at Alipurduar Junction Railway Station on 15/02/16 being PNR No.654-9428320 for travelling by Train No. 13141(UP) in the said Testa- Torsa Express.
On 08/03/16 the complainant boarded at Sealdah Railway Station to proceed towards New Cooch Behar Railway Station in 3A Compartment being Coach No.B1 A/C III tier(3A)/berth having seat No.20 under a valid journey cum Confirmed Reservation Ticket. On 09/03/16 when the said train left NJP Railway Station, the complainant found that her Vanity bag (green colour) containing some keys, one Cell Phone, PAN card, ATM card, Voter i/d-Card, Driving License, valuable sunglass, Spectacles, Original Railway Ticket (Annexure-A), Parcel challan for goods etc. along with a cash amounting to Rs.8,000/- was missing which the complainant kept under the pillow.
The complainant after detection, immediately informed the matter to the attending T.T.E and on duty police personnel at coach and she tried to submit a written complaint, but they declined to accept the same. The husband of the complainant who had been waiting at New Cooch Behar Railway Station heard the fact of incident from the complainant and lodged a complaint before the inspector-in-charge of G.R.P.S, New Jalpaiguri through New Cooch Behar G.R.P.S and also made a G.D.Entry to that effect being No.344 dated 09/03/16 (Annexure-B).
In this incident, the complainant faced great trouble and suffered monitory loss. Even the complainant could not ply her own vehicle due to the loss of D.L. The complainant also suffered mental agony and harassment. The present incident occurred purely on the basis of the negligence and deficiency in service of the employee of the railway. The complainant alleged that railway police had the duty to give protection to the passenger as well as consumer.
The O.Ps have contested the case by filing W/V jointly denying the case of complainant that the case is not maintainable in its present forum. According to O.Ps, the case is bad for want of jurisdiction u/s.13 and 15 of the Railway Claim Tribunal Act, 1987. Actually the claim of the complainant for loss, damage and deterioration of consignment rendered to Railways for carrying vests upon Chief Commercial Manager and it should be settled before the Railway Claim Tribunal. The O.P.No1 has no Office at Alipurduar Junction but his Office is situated at Maligaon, Guwahati, Assam.
The O.P has alleged that if any such incident happened at NJP Railway Station it would fall under the jurisdiction of Divisional Railway Manager, Katihar, Bihar. Actually, the claim of compensation should be settled before the Railway Claim Tribunal u/s. 13(1) of Railway Claim Tribunal Act. 1987. Missing of vanity bag had been made due to carelessness of passenger. There is no way to blame the Railway Authority because the luggage should be carried by the passenger at her own risk.
The complainant did not make any complaint in writing or verbally before T.T.E or R.P.F. Staff. One complaint had been lodged by the complainant before the I/C, G.R.P.S, NJP vide New Jalpaiguri GRPS case No.12/2016 dated09/03/16 u/s. 379 I.P.C but fact remains that after completion of investigation, the case has been ended by filing a final report being NJP GRPS FRT No. 41/16 dated 30/03/16.
According to the O.Ps, the complainant must prove her own case beyond reasonable doubt but she failed to adduce any cogent or acceptable evidence. As such, the O.Ps have prayed for dismissal of the case with cost.
The complainant and O.Ps have filed evidence on affidavit. On perusal, it appears that those are nothing but reiterated version of complaint and W/V.
In this context, the following points were necessarily come up for consideration to reach a just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(ii) of Consumer Protection Act ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and also perused the entire photocopy of the documents which are lying on record and heard arguments of the complainant and O.Ps in full.
The complainant has actually filed two documents viz. a photocopy of railway ticket dated 08/03/16 (Journey cum Reservation ticket) and a photocopy of complaint which filed before I/C, New Jalpaiguri G.R.P.S through I/C, New Cooch Behar GRPS Railway Station dated 09/03/16. The same have been referred as Annexure-A and B respectively.
Point No. 1 and 2-
It appears from the case record that the complainant purchased a Railway Ticket Journey Cum Reservation at Alipurduar Junction Railway Station N0. GHYG 44981429 dated 15/02/16 at 13.08 hrs. being PNR No. 654-9428320 for her journey from Sealdah Railway Station to New Cooch Behar Railway Station which departure time of Seraldah on 08/03/16 was at 13.40 hrs and it was scheduled to arrived at New Cooch Behar Railway Station on 09/03/16 at 06.35 hrs. The complainant’s ticket No. was B1 A/C- III tier having her berth No.20, Train No.1314, Testa-Torsha Express UP). The complainant’s ticket was valid Journey Cum Reservation ticket with her co-passenger which purchased amounting to Rs.1, 990/-
Ld. Agent for the complainant has referred a ruling of Hon’ble Appellate Court which published in 2003(2) CPJ 28 (SCDRC, Karnataka) and argued that if a person boarded in a train and found that a crime has been done in the train, he may lodge the complaint in writing before GRPS in any station of his journey.
In the instant case, the complainant detected that her vanity bag was missing while the train left NJP Station and accordingly, she lodged a complaint on her way at New Cooch Behar Railway Station before GRPS on the self same date.
The complainant stays with her husband at Judges Quarters, Alipurduar and the alleged ticket was purchased at Alipurduar Junction Railway Station.
So, we are in view that the complaint has been filed properly within the jurisdiction as the O.Ps who are officiating at District Alipurduar.
The valuation of the present case as it reflects from the case record that an amount of Rs. 1 Lakh has been claimed in this case which is less than the pecuniary limit of this Forum.
It is pertinent to mention here that the O.Ps raised objection on the point of jurisdiction at the first hearing of the case and this Forum on hearing both sides observed Vide Order No.12 dated 17/01/17 that the instant case did not show anything to dismiss the complaint.
Therefore, having heard and on considering the facts and circumstances, we are in view that the complainant is a consumer under the C. P. Act and the Forum has sufficient jurisdiction i.e pecuniary and territorial to entertain the complaint.
Hence, both the issues are decided infavour of the complainant.
Point No.3 and 4-
The case of complainant appears that she purchased a ticket Journey Cum Reservation on 15/02/16 and she accordingly boarded at Sealdah Railway Station on 08/03/16 for travelling by 1314(UP) Testa Torsa Express to proceed towards New Cooch Behar and her seat was booked in 3A (A/C-III tier) Compartment No.B1 having her berth No.20 under a valid journey cum reservation ticket having PNR No.654-9428320 along with a co-passenger (Annexure-A).
It is further case of the complainant that on the next day dawn i.e on 09/03/16 when the train left NJP Railway Station she discovered that her Vanity bag containing some keys, one Cell Phone, PAN Card, ATM Card, Voter- i/d-Card, Driving License, and cash amounting to Rs. 8, 000/- along with valuable sunglass, spectacles, original railway ticket and parcel challan for goods etc. was found missing which the complainant kept under the pillow. The complainant informed the matter to T.T.E and on duty police personnel at coach. But they declined to accept any written complaint. While the complainant got down at New Cooch Behar Railway Station, the complainant informed about the said incident to her husband and accordingly, her husband lodged a complaint before the Inspector-in-charge, GRPS, NJP through New Cooch Behar GRPS vide NCBRGRPS GD Entry No.344 dated 09/03/16.
The photocopy of said complaint has been filed being Annexure-B. As a result, due to said occurrence of theft, the complainant faced great troubles and suffered monitory loss as the complainant could not ply of her own vehicle due to lack of D/L and passed her days with mental agony.
According to the complainant, the Railway Police did not perform their proper duty to give protection, safety and security towards the complainant who was a bonafide passenger as well as consumer under the O.Ps. The theft of Vanity bag of the complainant happened due to the negligence and deficiency in service of the employees of the O.Ps.
It appears from Annexure-A that the complainant purchased the ticket from railway authority to book her seat in 3A compartment. Initially the seat in Testa-Torsa Express was not confirmed but subsequently as per averment of complaint, it was confirmed A/C III tier B-1 in coach No.3A having her berth No.20.
Ld. Agent for the complainant strenuously argued that O.Ps never stated anything in their W/V that the journey of complainant was not made as alleged by complainant. He further argued that ticket of the complainant was confirmed in compartment No. 3A, berth No.20 (A/C III tier). Ld. Agent for the complainant denied that the case as it relates to compensation, so, the case be filed before the Chief Commercial Manager Claim Office, and it would be settled at Railway Claim Tribunal u/s.13 of Railway Claim Tribunal Act, 1987. Ld. Agent for complainant also denied that if any theft was held, the same was done due to carelessness of complainant and railway authority is in no way be blamed because the luggage of the passenger is at owner’s risk. According to Ld. Agent for the complainant that immediately after the alleged occurrence, the complainant informed the matter to TTE and duty police personnel, but they declined to accept any written complaint. The complainant after getting down at New Cooch Behar Railway Station, the husband of complainant lodged an F.I.R/written complaint before Inspector-in-charge of GRPS, NJP through New Cooch Behar GRPS vide NCBR G.D.Entry No.944 dated09/03/16.
According to the Ld. Agent for the complainant, the theft in this case was occurred purely to the negligence and deficiency in service of the employees of O.Ps. The railway police are duty bound to give protection, safety and security towards the said Reserve Compartment. The complainant is a bonafide passenger, her security and safety be looked into by railway police. In this incident, the complainant sustained irreparable loss, harassment and suffered mental agony due to the deficiency in service of the O.Ps.
On the other hand, the Ld. Agent of O.Ps argued that the case is not maintainable for want of jurisdiction u/s. 13 and 15 of the Railways Claims Tribunal Act. The loss, damage and deterioration of consignment render to Railways for carrying, vests upon Chief Commercial Manager and compensation, if any, be settled before the Railway Claims Tribunal. According to the Ld. Agent for the O.Ps, the O.P No.1 has no Office at Alipurduar Junction, being General Manager of N. F. Railway, his Office is situated at Maligaon, Guwahati (Assam).
According to Ld. Agent for the O.Ps, if the place of incident is at NJP Railway Station, then it would fall within the jurisdiction of the Chief Divisional Railway Manager, Katihar, Bihar. If any vanity bag is missing the same was done due to carelessness of the complainant and railway authority is in no way be blamed for this. The luggage should be kept by the passenger at his own risk. The complaint of theft which was lodged before Inspector-in-charge, GRPS, NJP being NJP GRPS case No.12/16 dated 09/03/16 u/s.379 I.P.C has been ended in Final Report being FR No.41/16 dated 30/06/16. Ld. Agent for the O.Ps finally argued that the instant case is liable to be dismissed with cost.
Ld. Agent for the complainant in support of his contention cited some rulings of Hon’ble Court published in 2004(1) CPJ 40 (NC), 2003(3) CPJ 528 (SCDRC,A.P), 2005(4) CPJ 57 (NC), 2003(2) 28 (SCDRC, Karnataka) and 2005(IV) CPJ 79 (N.C).
On the contrary, the Ld Agent for the O.Ps did not file any case law in support of the case of O.Ps except a copy of Final Order passed by this Forum in C.C No.31/15 on 31/03/17.
We have already mentioned that the decision cited by the complainant i.e 2003(2) CPJ 28 (SCDRC,Karnataka) appeared to us that the complainant is entitled to file the complaint before the District Forum in whose jurisdiction any of the railway station from Mumbai to Bangalore are situated.
In the instant case, we find nothing that there is a jurisdictional error to file the instant case. Practically the said case laws support the case of the complainant.
The ruling of Hon’ble N.C as cited by the complainant i.e. 2005(4) CPJ 57 (N.C) reflects that the Hon’ble Court in connection with theft in Reserve Compartment did not accept that the railway is not responsible for any loss of personal luggage, unless it is handed over to railway. The passenger travelling by train entitled to carry luggage within permissible limit. No question of entrusting such luggage in railway and getting a receipt thereof. Railways responsible for any loss provided negligence on part of Railway or its servants proved
On perusal of Final Order passed in CC No.31/15 on 31./03/17 which referred by Ld. Agent of O.Ps, it appears to us that a Motor Cycle was booked by complainant for carriage who got the NOC from Maharastra, M. V. Department he paid Rs.1170/- for transporting it by Rail from Howrah to New Alipurduar Railway Station. A parcel way bill and purchase bill were generated. In the said case it was observed by us that as the same is not related within the purview of this C. P. Act and further observed that the same will come within purview of Sec. 13 and 15 of Railway Claim Tribunal Act, 1987 and it is barred the jurisdiction of this Forum. As such the complaint cannot been entertained due to bar of jurisdiction. The fact of the instant cased is otherwise/not similar with the above said case.
In the said case the Hon’ble Court oH expressly and specifically explained “Luggage”. The Railway Claim Tribunal has jurisdiction to try and entertain the claim for loss etc. only goods entrusted to Railway Administration for carriage by the railway. In the said case law Hon’ble N.C has been pleased to observe about the “luggage” and “goods by carriage”. “Luggage” means baggage carrying personal belongings of passengers and further luggage can be either carried by passenger himself or entrusted to the railway administration for carriage. ‘Goods’ means containers, pallets or some articles of transport used to consolidate goods and animals. “Goods” connotes materials in the nature of merchandise and does not include personal effects or provisions u/s.13 (1)(a) of Railway Claim Tribunal Act. Hon’ble Court has been further pleased to observe that the railways can be held responsible provided that there is negligence on the part of the railways or its servant, provided of course that the passengers himself has taken reasonable care for his personal luggage as expected to be prudent person. The above said case law completely supports the case of complainant.
In the other case cited by complainant viz. 2005(4) CPJ 79 (NC), it appears that the Hon’ble N.C has been pleased to observe that luggage stolen from AC III tier Coach while the TTE and Coach Attendant not vigilant about entry of unauthorized person in coach, it amounts to negligence and deficiency in service.
The other case laws cited by the complainant viz. 2004(1)CPJ 40 (N.C) it appears that the Hon’ble N.C has been pleased to award compensation as the reserve compartment was not protected from intruders. Theft occurred tantamount to deficiency in service. Those case laws have supported the case of complainant and the princles of the case laws are similar with the facts of the instant case.
The O.Ps have adduced evidence on affidavit by one Subimal Sen, who is a railway servant attached to the Office of D.R.M, Alipurduar. The said evidence is completely the reiterated version of W/V. Ld. Agent for the O.Ps strenuously argued that the present case is the same nature of case as Final Order passed in CC No.31/15 by this Forum on 31/03/17. We have already discussed the difference of “goods” and “luggage” as per rulings cited by the complainant. Sec. 13 and 15 relate to jurisdiction, power and authority of Claim Tribunal and bar of jurisdiction under Railway Claims Tribunal Act, 1987.The same are not applicable in the present case. There is no similarity of the facts of this case with the fact of the case in CC No.31/15 passed on 31/03/17 by this Forum.
Ld. Agent for the O.Ps raised several points at the time of hearing argument that the ticket, in question, was not confirmed and there is no document that the ticket of waiting list was confirmed for travelling and the complainant has been failed to file any document to that effect. In this perspective, it can be said that it is the documents of railway authority but no such documents have been filed. Rather the O.Ps have not challenged it. No such facts have been disclosed in W/V by the O.Ps. More so, it has been argued by the Ld. Agent for the O.Ps that though FIR was lodged but the same was not lodged by the complainant herself. Fact remains that the husband of the complainant who is a man of a responsible post like Additional District& Sessions Judge, Alipurduar Court lodged the instant complaint before GRPS, NJP. On perusal, it appears that a G.D was also lodged being No.344 dated 09/03/16 before New Cooch Behar, GRPS.
Ld. Agent for O.Ps referred that the husband was not a passenger of the train. The husband only used his name to influence the railway authority. Ld. Agent for complainant denied all above facts. According to him there is no bar that in such nature of the case, the husband’s F.I.R is barred. It is to be looked into how far truth is come out.
Having heard both sides and on considering all aspects we find no substance or justifiable reason to accept the argument advanced by O.Ps.
There is no allegation of influence in this case. In our view the case laws which have been cited by the complainant are attracted with this case. The F.R.T in criminal case cannot be sufficient to disbelieve this case. Accordingly, on considering all aspects, we are of opinion that the complainant has been able to prove her case. There is nothing to disbelieve it.
However, having heard the Ld. Agents of both sides and on considering the materials on record, we are in view, that the Railway Authority cannot deny their deficiency in service and negligence in this case. We are, constrained to hold than an amount of Rs.15, 000/- to be allowed to the complainant for compensation towards loss of articles and an amount of Rs.10,000 /- be allowed to the complainant for her mental agony and unnecessary harassment as well as an amount of Rs.3, 000/- be allowed for costs of the proceedings to the complainant.
Thus these points are decided infavour of the complainant.
In the result, the case succeeds in part.
Hence, it is,
ORDERED
That the C.C No.19 of 2016 be and the same is allowed on contest in part against the O.P. No. 1, 2 and 3 with cost of Rs.3000/-.
The Complainant do get an award of Rs.15,000/- as compensation for loss of articles.
The Complainant do get an award of Rs.10,000/- towards compensation for mental agony and unnecessary harassment.
The O.Ps are directed to pay Jointly and severally the aforesaid amount of award to the complainant within 45 days i.d. the same would be paid along with interest @ 10% per annum w.e.f. the filling of the case till its full and final payment.
If the said O.Ps. disobey the present Forum’s order, in that case the O.Ps shall have to pay the penalty of Rs. 100/- for each days delay which shall be deposited to the State Consumer Welfare Fund., West Bengal.
Let a plain copy of this Final Order be supplied to the concerned parties by hand/be sent under registered post with A/D forthwith for information and necessary action.
Dictated & Corrected by me.
