Order No. 5 date: 28-07-2017

Sri Shyamal Gupta, Member

This Appeal arises out of the order dated 19-04-2016 passed by the Ld. District Forum, Kolkata II (Central) in C. C. No. 434/2015.

Facts of the complaint case, in brief, are that during his train journey on 19-09-2014, the Complainant lost one of the three bags that he kept beneath the berth.  As frantic search for the same proved futile, the Complainant looked around for the TTE or RPF personnel for due assistance.  However, he did not find either any TTE or any RPF in the compartment.  Afterwards, he lodged a complaint with GRP, Buaxar in this regard.  As no positive result emerged out of it, a complaint was filed before the Ld. District Forum.

Appearing to contest the case by filing WV, the OP Railways denied the fact that TTE or RPF was not present at the compartment as alleged by the Complainant.  It is further claimed by the OPs that in terms of Sec. 11 of the Railway Act, 1989, Railway administration cannot be held responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless it is booked as luggage on payment of due charge thereof. 

Decision with reasons

Heard the Ld. Advocates of both sides and perused the material on record carefully.

The dispute revolves over loss of one luggage containing valuables of the Respondent during train journey on 19-09-2014.  On one hand it is alleged by the Respondent 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.  On the other hand, the Appellants strongly disputed such fact and claimed that both were present all through at the compartment.

Question arise, if indeed TTE and RPF personnel were present at the compartment all through, how did the luggage of the Respondent got lost.  That the luggage of the Respondent indeed got stolen from the train can be ascertained from the copy of letter dated 30-12-2015 of the ASC/P/HQ on behalf of the IG-cum-Chief Security Commissioner, RPF, Eastern Railway wherefrom it transpires that apprehending one Vikash Kumar Paswan, the Police recovered one Samsung Galaxy Mobile belonged to the Respondent. 

There is nothing to show that said Vikash Kumar Paswan was a bona fide passenger holding valid reserved railway ticket.  It, thus, nullify the contention of Mr. Sasanka Kumar Sarkar, Hd. TE/Howrah that no unauthorized person entered the coaches manned by him while he was on duty.  Although Mr. Sarkar has claimed that no passenger reported to him about theft of his/her personal belongings or sought his assistance for lodging FIR, it is hardly believable that despite detecting theft of one’s personal belongings one would not report the matter to the TTE concerned.  The statement of Mr. Sarkar is not at all believable. 

Now that the matter of loss of baggage is not in dispute, let us discuss as to whether the Appellants can escape its liability taking shelter u/s 100 of the Railways Act. 

In the matter of  G.M., South Central Railway vs R.V. Kumar And Anr. reported in 2005 CTJ 862 (CP) (NCDRC), the Hon’ble National Commission while dealing with the identical issue has been pleased to observe as under:

“A passenger travelling by a train is entitled to carry certain baggage or luggage within permissible limits of weight, free of cost. There is no question of entrusting such baggage/luggage to the Railways and getting a receipt thereof. If a loss takes place of such a luggage, Railways can be held responsible provided that there is negligence on the part of Railways or any of its servants, provided, of course, that the passenger himself has taken reasonable care of his personal baggage as expected of a prudent person”.

In this regard, it may not be totally out of the place to mention the observation of Hon’ble Apex Court in Sumatidevi M. Dhanwatay v. Union of India Ors.,  reported in II (2004) CPJ 27 (SC) : 2004 (3) Supreme 291 wherein the Hon’ble Court has been pleased to observe as under:

"Railway Administration cannot escape its liability for negligence and deficiency in service in failing to prevent unauthorized persons assaulting passengers in railway compartment and taking away their luggage."

Further, with regard to the loss in a goods train, the Hon’ble Apex Court in Union of India v. Udho Ram & Sons, pertinently observed as under which is relevant for the facts of the present case:

"It may be true that any precautions taken may not always be successful against the loss in transit on account of theft, but even so evidence should be offered with respect to the extent of the precautions taken and with respect to what the Railway Protection Police itself did at the place, where the train had to stop. It must be taken to be the duty of the Railway Protection Police to get out of the Guard's van whenever the train stops, be it at the railway platform or at any other place. In fact, the necessity to get down and watch the train when it stops at a place other than a station is greater when the train stops at a station, where at least on the station side there would be some persons in whose presence the miscreants would not dare to tamper with any wagon and any tampering to be done at a station is likely to be on the offside."

In view of this, the notion of the Appellants that Sec. 100 of the Railways Act exonerates them of all liabilities unless the luggage is booked appears to be completely misplaced.  In my considered opinion, in case belongings of a passenger get misplaced, particularly from a reserved compartment, the Railways must own up full responsibility for the same because during train journey, the responsibility of ensuring safety and security of lives of passengers as also their personal belongings lie with the Railways. 

The Ld. District Forum has awarded a sum of Rs. 2,00,000/- as compensation on the basis of the contention of the Respondents that the luggage concerned contained gold ornaments worth Rs. 1,40,000/-, cash Rs. 7,000/- and four numbers mobile phones worth Rs. 70,000/-.  Although the Respondent filed one cash memo to show purchase of gold ornaments for an amount of Rs. 1,40,000/-, without any tangible proof, it cannot be stated with certainty that the stolen luggage indeed contained those goods as claimed by the Respondent. 

Considering all these aspects, I feel that ends of justice would be met if the compensation amount is refixed at Rs. 1,00,000/- keeping in mind the harassment, mental stress and agony suffered by the Respondent.

The Appeal, accordingly, allowed in part.

Hence,

O R D E R E D

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

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