DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.524 of 2009
Smt. Priyanka Jaiswal,
W/o Major Sri Abhishek Bacchan,
D/o Col. R. K. Jaiswal,
R/o H.No. 515, Indian Institute of Management,
Lucknow.
……Complainant
Versus
- Northern Railway,
Baroda House, New Delhi,
Through its General Manager.
- The Divisional Rail Manager,
Northern Raiway,
Hazratganj, Lucknow.
- Senior Divisional Commercial Manager,
Northern Railway, Moradabad
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
JUDGMENT
This complaint is filed by the Complainant against the OPs for payment of amount of stolen cash and valuables of Rs.1.00 lakh and Rs.1.00 lakh as compensation for harassment, mental agony and negligence.
The case in brief of the Complainant is that she travelled from New Delhi to Lucknow by Lucknow mail on 19.10.2008 with her minor son in the AC-2 tier compartment and also carrying cash, clothes and jewellery. The PNR No. of the Complainant’s ticket was 235-2683557, ticket No. was 24941538 and coach No. was A-4 (6060 C). Since the Complainant was to travel alone with her two year old son, she had ensured a lower berth ticket. A perusal of the ticket would show that the Complainant was given seat/berth No.46 which
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was clearly mentioned on the ticket to be side lower berth. When the Complainant boarded the train at New Delhi, the TC did not allow her to occupy the side lower berth and insisted that she take the side upper berth and all her requests that she had a minor son bore no result as he said that he would allot the lower berth to RAC passengers who were expected to board the train sometime in the night and it was better that she took the upper berth. She adjusted her two travel bags and a s-trolley below the lower berth. Before reaching Lucknow the Complainant found that her strolley which was secured with a thick iron chain and a big Chinese lock was stolen. The matter was immediately reported to the police who took prompt cordon and search action on arrival of the train and thereafter lodged the FIR. In the night someone occupied the berth below that of the Complainant and after pulling the curtains together he worked most leisurely at the Complainant’s luggage after lifting the half seat and most selectively choose her suitcase which was not even accessible otherwise. On account of negligence on the part of the OPs and the ticket collector who was the agent/servant of the OPs, the Complainant was made to occupy an upper berth. It was only the conductor and the TC who knew of the Complainant’s precarious condition. Such selective theft of a suitcase which was not even visible from outside is a clear pointer towards the connivance of the railway staff in the crime. Despite being allotted a side lower berth, the Complainant was made to occupy the upper berth by TC gives rise to the suspicion that the entire act was pre-planned and thus the railway authorities have acted negligently. The Complainant sent a legal notice to the OP No.1 and 2 on 14.11.2008. A reply dated 16.12.2008 was sent on behalf of the OP No.2 stating that the matter was being forwarded to OP No.3. A reminder dated 27.11.2009 was sent to the OPs which also remained unreplied. Since the OPs have failed to reply to the notice or reminder, hence this complaint.
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The OPs have filed the WS wherein it is admitted that the Complainant was travelling on 19.10.2008 by train No.2230 Lucknow Mail from New Delhi to Lucknow. It is further submitted that as per available coach accommodation the Complainant’s berth was side upper and the Complainant had no objection while the TTE of the coach informed that as per available coach there was no lower berth available and allotted number fallen on the upper side berth as per available coach. The Complainant agreed to travel on side upper berth. The concerned TTE of the coach disclosed the entire position and informed the Complainant that as per reservation chart, the position of berth as per available and attached coach berth No.46 was allotted on upper side berth. On the request of the Complainant the TTE wanted to adjust on any lower berth but unfortunately no lower berth was available, which was admitted by the Complainant herself. The Complainant chose to travel on her own will on the allotted berth which had fallen on the side upper. The alleged luggage was not booked with the railway. The instant complaint relates to the loss of luggage which is not booked with railway is fully covered under Section 100 of Railways Act 1989 and unless negligence or misconduct either on the part of railway administration or its servants is proved in respect of loss, destruction, damage, etc. of the luggage carried on by the passenger in his charge the responsibility cannot be fastened on the railway administration. No declaration of luggage/goods were made by Complainant before railway, prior to the commencement of journey. There was no negligence and deficiency in service on the part of railway or its employee in discharging his duty during course of journey on train, date and coach in question. The Complainant was required to be vigilant and take all care and precaution about her luggage during journey and in this case it was not done so for which railway cannot be held responsible. The present
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matter is barred under the law before the Forum in view of provision contained under Section 13 and 15 of Railway Claims Tribunal Act 1987 as the same is to be adjudicated in Railway Claims Tribunal exclusively. The Complainant lodged FIR at Lucknow station stating the probability that the passenger at berth No.45 had stolen one suit case and got down at Shahjahanpur but Complainant did not lodge complaint by name whereas it was lodged against unknown and on the other side even in notice and complaint she did not disclose the place of occurrence. In her notice and complaint she wrote that the incident took place between New Delhi and Lucknow and alleged railway to be responsible. The variation in the statement of Complainant in FIR, notice and complaint does not make it credible and authentic and shows that the Complainant was prejudiced with the railway in connection of allotment of her berth and plotted a fabricated and false case against railway to get compensation from public money of railways with ulterior motive. The railway administration will endeavor to provide reserved accommodation but does not guarantee the same and will admit no claim for compensation for inconvenience, loss or extra expense due to such accommodation including carriage, not being provided or reserved carriage not been attached to a particular train. The supply of any particular type of carriage or the provision of a particular berth and seat is also not guaranteed. The authenticity of the complaint created doubt when the Complainant has narrated the alleged incidence to the TTE namely Mr. Shukla or another coach and not to Mr. H.L. Meena the concerned TTE of the coach in question, who was present in the coach which shows the falsity of the case. The Complainant has travelled from New Delhi to Lucknow on her allotted berth and coach in question safely and the change of position of berth of Complainant on account of available newly constructed coach, it cannot be termed as negligence
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and deficiency in service on the part of railways. The present case is false and fabricated and is liable to be dismissed with special costs.
The Complainant has filed her affidavit with 4 annexures.
Heard Counsel for the Complainant but none appeared to argue the case from the side of the OPs. Perused the entire record.
Now, it is to be seen as to whether the Complainant was unjustifiably asked by the TC concerned to take up the upper berth when she was allotted a lower berth and whether the luggage was stolen because of the negligence by the OPs or not and whether the OPs have committed deficiency in service in this regard or not? It is also to be seen as to whether this case is not maintainable in this Forum as it is adjudicable in Railway Claims Tribunal only as is the contention of the OPs. It is also to be seen as to whether this is a fabricated and false case lodged by the Complainant against the OPs as the Complainant was prejudiced in connection with the allotment of berth.
All the above issues are related to each other, hence they are taken up together. The contention of the OPs is that as the case is to be adjudicated in Railway Claims Tribunal as per Section 13-15 of the Railway Claims Tribunal Act 1987, therefore this case cannot be decided in this Forum but the Complainant has cited the case decided by the Hon’ble NCDRC of GM South Central Railway Vs R.B. Kumar and another decided on 04.01.2005 wherein the Hon’ble NCDRC has held that where there has been negligence on the part of the staff of the Railways this Forum has the jurisdiction to decide the case. In the instant case, the Complainant has taken the stand that she was given an upper berth though she was allotted a lower berth. In this regard, first of all, all the OPs have taken the stand that she was given the berth which was allotted to her but the Complainant has filed a photocopy of
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the ticket which shows that the position of berth is shown as side lower and in this regard the contention of the OPs in para 24 of the WS is that the change of position of berth of the Complainant on account of available newly constructed coach cannot be termed as negligence and deficiency in service but this statement does show that there was change in the position of berth done by the OPs, therefore there is merit and substance in the contention of the Complainant that her berth was changed from lower to upper. The OPs come out with the justification that the change of position of berth of the Complainant was on account of it being newly constructed coach but this justification is not sufficient enough to change the position of berth and if the Complainant was allotted a lower berth then she should not have been allotted an upper berth especially as she was a lady with a minor child with her. Besides it is also clear that the luggage of the Complainant was stolen during the night of the travel undertaken by the Complainant as is evident from the photocopy of the FIR filed by her. In the FIR it is mentioned that when she did not find luggage in her coach then she contacted the coach attendant and the TTE but to no avail. The OPs have taken the stand that the Complainant’s case is a false and fabricated one as she was prejudiced against the OPs because of the allotment of the upper berth to her and there is doubt regarding the authenticity of the complaint as the Complainant has narrated the incident to the TTE Mr. Shukla of another coach and not to Mr. H.L. Meena who was the TTE of coach concerned but this objection appears to be absolutely devoid of any merit as the Complainant has not only filed the FIR but also contacted with the coach attendant and TTE Mr. Shukla whoever she could contact. Her case is not falsified just because she did not contact Mr. H. L. Meena the TTE concerned, therefore it is absolutely wrong on the part of the OPs to say that the case was fabricated and false one just because she was not given a berth of her choice. This speaks volumes of the apathy of the
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OPs in dubbing the case of a woman as false one who according to her, was not only given a wrong berth but her luggage was stolen also during the journey. From the entire gamut of the circumstances of the case, it is clear that the staff of the OPs were negligent in the discharge of their duties. Therefore, as per the decision given by the Hon’ble NCDRC mentioned above this case is certainly maintainable in this Forum because of the negligent attitude of the staff of the OPs. Consequently the OPs have also committed deficiency in service because of the allotment of upper berth to the Complainant and the negligence of the staff has resulted in the luggage of the Complainant being stolen. The Complainant, therefore, is entitled to get compensation for the loss of the luggage and also cost of the litigation.
Now, the question arises as to what compensation she is entitled to get. The Complainant has claimed Rs.1.00 lakh as according to her she had cash and valuables to the tune of Rs.1.00 lakh in the bag but in the FIR there is no mention of the cash in the bag and it only makes mention of the clothes and jewellery to the tune of Rs.50,000.00. Considering the facts of the case, we find that a sum of Rs.10,000.00 shall suffice to be awarded as compensation and Rs.3,000.00 as cost of the litigation.
ORDER
The complaint is partly allowed. The OPs are jointly and severally directed to pay Rs.10,000.00 (Rupees Ten Thousand Only) as compensation and Rs.3,000.00 (Rupees Three Thousand Only) as cost of the litigation.
The compliance of the order is to be made within a month.
(Anju Awasthy) (Vijai Varma)
Member President
Dated: 28 January, 2016
