Northern Railways V/S Swati Kapur - Consumer Court Case

Haryana

Ambala

CC/202/2015

Swati Kapur - Complainant(s)

Versus

Northern Railways - Opp.Party(s)

Munish Kashyup

28 Nov 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No. : 202 of 2015

Date of Institution : 27.07.2015

Date of Decision : 29.11.2017.

Swati Kapur aged about 39 years wife of Sh.Kapil Kapur resident of house No.1712, Sector 4, Panchkula.

……Complainant.

Versus

1.Northern Railways through General Manager, Railway Station, Delhi.

2.Divisional Railway Manager, Northern Railway Ambala Cantt.

……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

BEFORE: SH.D.N.ARORA,PRESIDENT.

MS. ANAMIKA GUPTA,MEMBER.

SH.PUSHPENDER KUMAR, MEMBER.

Present: Sh.Manish Kashyap, Advocate for complainant.

Sh.R.S.Saini, counsel for the OPs.

ORDER

Brief facts of the present complaint are that on 25.11.2014 the complainant had booked three berths in Malwa Express Train No.12919 through online booking in order to go to Ambala from Bhopal and at about 5.15 p.m. boarded the same from Bhopal Railway station and many persons without reservations were freely entering and exiting the compartment. At about 8 a.m. the train stopped at railway station, New Delhi as per schedule and the complainant in order to inform the status to her family made a phone call from her mobile. Thereafter, she kept the mobile in her hand bag and kept the bag aside and rested for a while. As soon as the train started moving she noticed some disturbance as various passengers boarded from Delhi and many vendors entered the compartment in order to sell their things. The commotion in the reserved compartment alarmed her and after taking care of the luggage she noticed that her hand bag was missing. She immediately raised an alarm and made a call on her mobile from the co-passenger but she could not find the thief due to rush in the compartment. She intimated this matter to the TTE in the coach but instead of helping her he stated that it is a routine affair in the train. On the persistent demand of the complainant some police officials came and on the complaint of the complainant FIR was registered at GRP, Ambala Cantt. but after registration of the FIR the police did not take any action. The Ops were deficient in providing service to the complainants and due to their negligence the complainant has suffered financial loss and mental agony, therefore, the Ops are liable to make the loss good on account of their negligence. The complainant had booked berths from Bhopal to Ambala and the theft had taken place during the course of journey and the FIR is also registered at GRP Ambala Cantt. The act and conduct of the OPs clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C3.

2. On notice OPs appeared and filed their joint reply wherein it has been submitted that the complainant has not produced any ticket showing that she had travelled in the train of OPs when the alleged theft of her articles had committed. There is no deficiency in service on their part and the present complaint is not maintainable before this Forum as she has not suffered any loss due to OPs. She is not the consumer of the OPs as no railway reservation ticket has been supplied by her to the OPs despite repeated requests and the present complaint has been filed just to extract money from the OPs. It is wrong that many persons without reservation freely entered and exit the concerned department. The luggage as alleged by the complainant was un-booked and it was the duty of the complainant to got the luggage booked with the railway authorities by paying necessary charges and only in that event the railway can be held liable for theft or loss in any other manner. Since the complainant did not pay anything to the OPs, therefore, no deficiency in service can be attributed to the OPs. There was no negligent attitude an absolute none-adherence to the safety measures and the complainant has not suffered any loss due to any negligence of the Ops. The complainant has got lodged false FIR. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavit Annexure RX.

4. We have heard learned counsel for the parties and gone through the record very carefully.

5. The counsel for the OPs while opening the arguments has argued that this Forum has no jurisdiction to entertain and decide the present complaint because the alleged theft has taken place at Railway Station, New Delhi. This plea of the counsel for the OPs is not tenable in the eyes of law because the FIR qua theft of the belongings of the complainants has been registered at Ambala Cantt. and part cause of action has arisen to the complainant at Ambala and even at New Delhi, therefore, the complainant as per her choice has file the present complaint with the jurisdiction of this Forum.

6. As per allegations of the complainant she had boarded Malwa Express Train No.12919 from Bhopal to Ambala on 25.11.2014 and many persons without reservations were freely entering and exiting the compartment. At about 8 a.m. the train stopped at railway station, New Delhi as per schedule and as soon as the train started moving she noticed some disturbance and on checking her hand bag was missing. She immediately raised an alarm and intimated this matter to the TTE in the coach but to no avail and on her complaint FIR was registered at GRP, Ambala Cantt. but after registration of the FIR the police did not take any action. The Ops were deficient in providing service to the complainants and due to their negligence the complainant has suffered financial loss and mental agony, therefore, the Ops are liable to make the loss good on account of their negligence.

7. On the other hand, learned counsel for the Ops has argued that as per Railways shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless a railway servant has booked the luggage against a receipt. In view of the complainant is not entitled to any claim for the alleged theft which has occurred in the railway compartment because at the time of journey it was the liability of the complainants to keep the luggage safely and as per Constitution of India the responsibility for the safety and security lies with the Police Department of the State concerned, therefore, the Railways cannot be held liable for this mishap.

8. After hearing learned counsels for the parties and going through the material available on the case it is clear that firstly the question require to be answered in the present case is, whether the opposite parties can deny their liability to compensate the complainant by relying upon ; and whether there is negligence on the part of the Railway Administration in providing measures whereby removal of luggage /purse by an intruder became possible? , 1989, reads as under:- Responsibility as carrier of luggage-A railway administration shall not be responsible for the loss, destruction, damage, deterioration of non-delivery of any luggage unless a railway servant has booked the luggage and given a receipt therefore, 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.

9. This plea taken by the Ops is not sustainable because it is not disputed that the luggage which was stolen during journey was not booked with them but it is mandatory to mention here that normally no one files complaint unless there is a loss and it is also not uncommon that theft place while travelling in the train by unauthorized person. In the present case there was specific allegations that unauthorized persons were there which were not checked by the railway staff, therefore, loss was caused on account of negligence on the part of OPs. Learned counsel for the complainant has rightly relied upon the case law titled as Union of India Vs. Virender Kaur FA No.340 of 2017 decided on 01.09.2017 by Hon’ble State Commission, Chandigarh wherein Hon’ble Commission by relied upon case law titled as Vijay Kumar Jain Vs. Union of India & Anr. III (2012) CPJ 55 (NC) has held that theft was committed during journey and the railway will be responsible towards carrier of luggage, in case loss was caused due to negligence of its servants. Jewellary articles which have been allegedly stolen from the possession of the passenger are not such articles those were required to be booked with the Ops. Those can be carried by the passenger while travelling in the train, therefore, we do not agree with the plea raised by the Op that goods were not booked with Op, therefore, the OP was not liable to pay the loss, if any, to the complainant.

10. Learned counsel for the complainant has rightly pointed out that the Railways Department cannot take the shelter of Section 100 of Railway Act and in order to strengthen his version he has placed reliance upon case law titled as South East Central Railway Vs. Ashwani Ritwal decided on 11.03.2015 by Hon’ble State Commission of Chhattishgarh State Consumer Disputes Redressal Commission. Hon’ble State Commission while disposing of FA No.14/252 in para No.12 of has relied upon case law titled as General Manager, South Eastern Central Railway, Bilaspur (C.G) Vs. Smt.Pratima Tripathi Appeal No.159/2010 decided on 30.10.2010 wherein it has been held as under :

“8. Counsel for the appellant has also drawn our towards the provision of Section 100 of the Railway Act, 1989 s well as Rule 506.2 of Indian Railway Conference Association (IRCA) Tariff No.26 Part II. We have gone through both these provisions and found that none of these provisions has any relation with any reserve compartment. It is true that normally passengers are expected to take care of their personal luggage but when one travels in a reserved, then naturally a duty is imposed upon servants of Railway to take care of such passengers and their personal luggage, because unauthroised entry in such reserved compartments are restricted and no-one can enter in such reserved compartment, unless permitted by TTE or conductor in-charge of that compartment, therefore, the appellant cannot get any benefit of Section 100 of the Railway Act, 1989 and Section 506.2 of Indian Railway Conference Association (IRCA) Tariff No.26 part II.

Hon’ble National Commission in case titled as G.M.South Central Railway Vs. R.V.Kumar & Anr. 2005 STPL 168 (NC) has held that Theft if reserved compartment- Complaint allowed by District Forum and State Commission- Revision- Railway pleaded that it was no responsible for any loss of personal luggage, unless it is handedover to Railways- Not accepted- Held passenger travelling by train entitled to carry luggage within permissible limits and there was no question of entrusting such luggage to Railway and getting a receipt thereof- Railway held to be liable.

11. The Ops are ceased to take a plea the railway staff always perform their duties vigilantly in order avoid any untoward incident. In the present the complaint has specifically pleaded that she had intimated the incident to the TTE but no action was taken. This mishap also doubted the work and conduct of TTE/Incharge in the compartment which the complainants had boarded after reservation, which shows gross negligence on the part of the Railway Department. On this point learned counsel for the complainant has rightly relied upon case law titled as Union of India & Ors. Vs. Sanjiv Dilsukhrai Dave & Anr. decided on 20.08.2002 by Hon’ble National Commission in Revision Petition No.1590 of 2000 wherein it has been held that Primary responsibility of TTE, as name itself indicates was of examining tickets of travelers, allotting births to them, etc. and that large number of duties have been cast on him- However, it was equally true that prima and basic responsibility cast on him in addition to examining tickets was that of ensuring that no intruders enter reserved compartments.

Reliance on this point can also be taken from case law titled as General Manager, South Central Railway & Co. Vs. Jgannath Mohan Shinde decided on 11.04.2012 in Revision Petitoin No.3574 pf 2007 by Hon’ble National Commission.

12. Keeping in view the above facts and circumstances and discussion made above we have no hitch to reach at a conclusion that the Railway Department is responsible for the alleged loss suffered by the complainants on account of theft of their luggage.

13. The complainants in her complaint has mentioned that in the stolen luggage there was one mobile set Samsung Glaxy Note II, Driving licence No.HR033201 20051860, Cash of Rs.30,000/-, Two debit cards of SBI and Uco bank and Jewellary worth Rs.40,000/- and this fact also has been mentioned in FIR No.20140140 dated 26.11.2014 (Annexure C1).

14. As regards to compensation, the complainant in the complaint has prayed for making the loss good but we took a slightly conservative view while holding that the complainant has not produced any independent evidence for the purpose of assessing the damages and compensation. In this regard one has to take note that the common men do not preserve the bills of each and every item to pile up unnecessary papers expecting that someday a theft may take place and he would be required to produce those documents. In ordinary course the affidavits should be accepted and acted upon keeping some margin of exaggeration of claims. In such a situation one has also keep in mind probable depreciated value of the articles lost.

15. Keeping in view of the circumstances explained above as well as the fact that the complainant has suffered financial loss besides loss of agony, mental harassment, therefore, in order to meet the end of justice, we assess the loss which occurred to the complainants due to deficiency in service on the part of the Ops to the tune of Rs.20,000/- in lump sum. Accordingly, we partly allow the present complaint with costs which is assessed at Rs.3,000/- and further direct the OPs to pay compensation to the tune of Rs.20,000/- within a period of two months jointly and severally after receiving the copy of this order, failing which the awarded amount would carry interest @ 9 % per annum from the date of filing of complaint till its realization. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.