1.         The present Revision Petition (RP) has been filed by the Petitioner(s) against Respondent  as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 28.07.2017 of the State Consumer Disputes Redressal Commission, Kolkata, West Bengal (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 418/2016 in which order dated 19.04.2016 of District Consumer Disputes Redressal Forum, Kolkata, Unit II (hereinafter referred to as District Forum) in Consumer Complaint (CC) No.434 of 2015 was challenged, inter alia praying for setting aside the impugned order of the State Commission and consequently dismissing  the complaint of the complainant.

2.         While the Revision Petitioner (hereinafter also referred to as OPs) were Appellants before the State Commission and OPs before the District Forum, the Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA No.418/2016  before the State Commission and  Complainant before the District Forum in CC/434/2015.

3.         Notice was issued to the Respondent on 21.12.2017.  Petitioners have filed Written Arguments/Synopsis on 02.08.2023. On account of absence despite notice,  Respondent was proceeded ex-parte vide order dated 14.03.2024. No reply/written synopsis was filed by the Respondent.

4.         Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: - 

Complainant purchased tickets from Kolkata for himself and his family for travelling on  19.09.2014, in train No.13005 Ticket no.77881824, Coach No.S-4 by paying an amount of Rs.1235/-.  The complainant started his journey along with his family from Howrah Station on 19.09.2014 and the said train departed from Howrah station at 7.30 PM.  The complainant lost one of the three bags that he kept beneath the berth. In the mid-night about 1.00 a.m., when the train reached near Joshidi, the complainant found that one of his three bags was missing and complainant started searching here and there.  The bag contained golden ornaments amount to Rs.1,40,000/-, four mobile sets, cash of Rs.7,000/- and some other materials. However, the complainant did not find either any TTE or RPF in the compartment. He lodged a complaint with GRP, Buxar Station on 20.09.2015 in this regard.  As no positive result emerged out of it, a complaint was filed before the District Forum.

5.         Vide Order dated 19.04.2016 in CC No. 434/2015, the District Forum has allowed the complaint and ordered as under :

    (i)        OPs are hereby directed to pay Rs.2 lakh to the complainant within one month from the date of this order for causing mental pain, agony, harassment and for their negligent and deficient manner of service rendered to the complainant, a  bonafide passenger of Amritsar Mail in sleeper coach No.S-4 and also for loss of valuable jewelleries and other goods for laches of the OPs and their staff.

     (ii)       OP shall have to comply with this order by paying Rs.2,10,000/- within one month from the date of this order failing which for each day’s delay and for non-compliance of this order of the forum, Railway Authority shall have to pay punitive damages @ Rs.200/- per day till full implementation of this order, and if it is collected, it shall be deposited to this Forum by the Railway Authority.

Even if it is found that OP is reluctant to comply the order in that

case penal action u/s 25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.”

6.         Aggrieved by the said Order dated 19.04.2016 of District Forum, Petitioners appealed in State Commission and the State Commission vide order dated 28.07.2017 in  FA No. 418 of 2016 has partly allowed the appeal and passed the order as follows:

“(i)      that A/418/2016 be and the same is allowed in part.  The impugned order is modified as under :

(ii)       Appellants shall pay compensation to the tune of Rs.1,00,000/- within 45 days together with litigation cost of Rs.10,000/-.”

7.         Petitioners have challenged the said Order dated 28.07.2017 of the State Commission mainly/inter alia on following grounds:

1. The District Forum as well as the State Commission exceeded their territorial jurisdiction in as much as the place of incident is outside the territorial jurisdiction of both the Fora below. The District Forum failed to appreciate that the complaint was not maintainable as the occurrence if any, then the same was outside the jurisdiction of the District Forum.

    

2. The District Forum as well as the State Commission failed to appreciate that the allegation contained in the complaint were bald allegations as the complainant did not file any documentary evidence pertaining to the articles mentioned in the complaint. Hence, the allegations made in the complaint were not proved and as such the impugned order as well as the order of the District Forum is liable to be set aside.

Both the Fora below failed to appreciate that the allegations pertaining to the theft of luggage is a subject matter of criminal offence to be investigated by the State Government Railway Police. Hence, there is no deficiency of service as alleged by the complainant hence, the impugned order as well as the order of the District Forum are liable to be set aside.

8.         Heard counsel for Petitioner Railways.  On account of absence despite service of notice, Respondent was proceeded ex-parte. Contentions of petitioners, on various issues raised in the RP, written arguments and arguments advanced during the hearing, are summed up below.

8.1       It is contended by the petitioners that fora below have failed to appreciate that the entire facts of the case are cooked up and afterthought for illegal gain from Railways which is evident from the contrary version given to the GRP, Buxar on 20.09.2014, where the respondent did not attribute any negligence on the part of the Railway.  Hence, the fora below ought to have dismissed the complaint in limine. It is further contended that from the perusal of FIR, it is evident that the respondent had nowhere stated that (a) any unauthorized passenger  was travelling in the train (b) did not allege that the door of the Coach  was not closed; (c) did not allege that he raised any alarm when he did not find his bag (d) did not allege that he had requested the TTE for complaint book for lodging complaint and was not provided to him (e) did not allege that the TTE Coach Attendant was not present there in the said coach and also they did not cooperate him. It is also contended that it is also not disclosed by the complainant that at what time and near which station his bag was theft. He very casually alleged that during journey near Jasidih Station, he noticed that his bag was missing.

8.2       It is contended by the Petitioners that Section 100 of  the Railways Act, 1989 contemplates that Railways cannot be held responsible for theft of luggage of the passengers unless and until the same is booked with Railway authority.  According to Rule 146 of the Coaching Tariff No. 24 Part-1 Vol.1, the Railway cannot be held liable for the loss of any un-booked luggage.  According to Rule 506.2 of the Indian Railway Conference Association Coaching Tariff No. 25 (Part 1) (Vol.1) under Chapter V under the heading “Luggage”, it has been stated that the passenger may take into a carriage only such small articles of personally required for his own use on the journey and can be placed without inconveniencing other passengers or reduce accommodation in the carriage.  It has been further stated that, all articles taken into the carriage are carried at the entire risk of owners.  

8.3. It is also contended by the Petitioners that it  is observed in various judgments that the passenger should be more vigilant towards their belongings when the train arrives and starts from any station,  where many passengers board and de-board train till all the passengers settled down.  Thus, the impugned order is fit to be set aside and the revision petition deserves to be allowed in view of the above stated facts and circumstances.  In support of their contentions, the Petitioners have relied upon the following judgments:

(a)       In Station Superintendent & Anr. Versus Surender Bhola, Civil Appeal No. 7116/2017 decided on 15.06.2023.

(b)       In Union of India & Ors. V. Rama Shanker Misra & Anr. Reported in IV (2015) CPJ 653 (NC).

(c )      In Vivek Chhibba vesus South Central Railway, Bilaspur, Revision Petition No. 1939 of 2016, decided on 20.01.2017.

(d)       In Union of India versus Ramniwas, II (2020) CPJ 4 (NC)

(e )      The General Manager, SER & Ors. Versus Swapna Mukherjee (2019) CPJ 541 (NC).

8.4.      On the other hand, it was contended by the Respondent/complainant before the State Commission and the District Forum  that once he detected the loss, he frantically searched for the TTE or RPF personnel at the compartment for getting due assistance and nabbing the culprit.  However, none of them was present at the compartment.  The complainant was advised to get down at the Joshidi Station and lodge complaint. At that point of time complainant did not feel safe to leave his family and go to the Station Superintendent to lodge a complaint of the stolen bag because at Joshidi Station the train halted only for 5-6 minutes, so complainant lodged the complaint at Buaxar Station on 20.09.2015 and GRF of Bauxar forwarded the complaint to Joshidi. From the date of lodging the complaint no effective steps were taken either by Joshidi Station or Bauxar Station.  Complainant also contended that the OPs being the only largest means of government transportation ought to have sufficient infrastructure of protecting the travelers and their goods, since the travelers pay requisite money as asked by the OPs and reserve compartments are meant for the travelers who travel in the said compartment after paying requisite service charges for being protected and guarded by sufficient police force and not for strangers and/or outsiders to get in and out freely.  It was contended that throughout the journey specially during night time no RPF accompanies the reserve passenger to protect them and frequently outsider get in or out of the train and the same is reflection of the deficiency on the part of the OP and fro, the conduct of the OP. 

9.         We have carefully gone through the orders of State Commission, District Forum and other relevant records.  As regards deficiency in service on the part of the Petitioner Railways, there are concurrent findings of both the below although the State Commission in Appeal filed by the Petitioner-Railways,  has modified the orders of the District Forum with respect to the quantum of compensation.  It has been held by Hon’ble Supreme Court in catena of judgments^[1] that revisional jurisdiction of the National Commission is extremely limited, it should be exercised only in case as contemplated within the parameters specified in the provision i.e. when State Commission had exercised a jurisdiction not vested in it by law or had failed to exercise jurisdiction so vested or had acted in the exercise of its jurisdiction so vested or had acted in the exercise of its jurisdiction illegally or with material irregularity.  It is only when such findings are found to be against any provisions of law or against the pleadings or evidence or are found to be wholly perverse, a case for interference may call for at the second appellate (revisional) jurisdiction. In exercising of revisional jurisdiction, the National Commission has no jurisdiction to interfere with concurrent findings recorded by the District Forum and the State Commission, which are on appreciation of evidence on record.

10.       Before the State Commission also, the Railways denied the fact that TTE or RPF was not present in the compartment as alleged by the complainant.  However, the State Commission after considering the facts of the case and evidence before it, did not accept such contentions of the Petitioner Railways.  The State Commission also observes that police recovered one Samsung Galaxy Mobile belonging to the complainant from one Vikash Kumar Paswan  and there is nothing to show that said Vikash Kumar Paswan was a bonafide passenger holding a valid reserved ticket, it thus nullifies the contentions of the railway official  that no un-authorized person entered  the coaches manned by him while he was on duty. The State Commission has appropriately addressed various contentions of the Petitioner railways and we are in agreement with its observations/findings and find no reason to interfere with the same.  There is no illegality or material irregularity in the order of the State Commission, hence the same is upheld.  Accordingly, the Revision Petition is dismissed.

11.       The pending IAs in the case, if any, also stand disposed off.