STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. First Appeal No.453 of 2010

1.            Alok Kumar son of Late K.B. Saxena r/o H.No.97/4, ‘N’ Area, Air Port Road, Chandigarh.

2.            Poonam Saxena wife of Alok Kumar r/o H.No.97/4, ‘N’ Area, Air Port Road, Chandigarh.

                                                                   … Appellants

V E R S U S

1.       Union of India, Ministry of Railway through its Secretary, New Delhi.

2.       Headquarter Northern Railway, New Delhi through Chief Commercial Manager.

3.       Northern Railway, Baroda House, New Delhi through Chief Vigilance Officer.

4.       Director, Public Grievance Cell through Railway Board, New Delhi.

5.       Northern Railway, Moradabad Division, Moradabad through Senior Divisional Commercial Manager.

6.       Station Superintendent, Northern Railway, Chandigarh.

7.       Sh. Adil Ali Khan, Dy. C.I.T. posted at Bareilly Junction, U.P.

8.       Officer-in-Charge, GRP Post, Bareilly Junction, U.P.

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Sandeep Bhardwaj, Adv. for the appellants

                   Ms. Veena B. Sethi, Adv. for respondents No.1 to 7

                   None for respondent No.8

2. First Appeal No.472 of 2010

Northern Railway, Moradabad Division, Moradabad through Senior Divisional Commercial Manager.

… Appellant.

V E R S U S

1.            Alok Kumar son of Late Shri K.B. Saxena r/o H.No.97/4, ‘N’ Area, Air Post Road, Chandigarh.

2.            Poonam Saxena wife of Shri Alok Kumar r/o H.No.97/4, ‘N’ Area, Air Post Road, Chandigarh.

                                                                   … Respondents

3.            Union of India, Ministry of Railway through its Secretary, New Delhi.

4.            Headquarter Northern Railway, New Delhi through its Chief Commercial Manager.

5.            Northern Railway Grievance Cell, through Railway Board, New Delhi.

6.            Station Superintendent, Northern Railway, Chandigarh.

7.            Shri Adil Ali Khan, Dy. C.I.T. posted at Bareilly Junction, U.P.

8.            Officer-in-Charge, GRP Post, Bareilly Junction, U.P.

              .... Proforma Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Ms. Veena B. Sethi, Adv. for the appellant

                   Sh. Sandeep Bhardwaj, Adv. for respondents No.1 & 2

                   None for proforma respondents No.3 to 8

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This order will dispose of the aforesaid two appeals, first bearing F.A. No.453 of 2010 filed by the complainants and the second bearing F.A. No.472 of 2010 filed by the OP-5 against the order dated 10.11.2010, rendered by the ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainants and directed the OPs to pay a sum of Rs.50,000/- as compensation and Rs.10,000/- as costs of litigation.

2.                      The facts, in brief, are that on 02.06.2007 the complainants along with their children went from Chandigarh to Bareilly to attend the engagement of their close relative. Complainant No.2 took all her gold jewellery for the said function. The complainants booked four tickets for their journey from Chandigarh to Bareilly for 02.06.2007 and return journey from Bareilly to Chandigarh for 17.06.2007.  It was averred that on 17.06.2007, while they were returning from Bareilly to Chandigarh, by Train No.2231, the complainant No.2 went to attend the call of nature and the purse containing the jewellery items worth Rs.1.50 lac and Rs.45,000/- in cash fell in the commode of the toilet. Complainant No.1 immediately requested the TTE of AC Coach to stop the train because they could not locate the chain whereupon TTE took out his mobile and after dialing the number, started making questions to the complainant about the size and colour of the purse etc. and items contained in the purse etc.  According to the complainants, as per the statement of TTE, he alongwith attendant of the train pulled the chain but the chain system was not functioning and therefore, the train did not stop. Thereafter, the TTE went in the next AC Coach leaving them as helpless passengers. When the train reached Rampur, the complainant No.1 alighted alone and made return journey to Bareilly by bus and reached Bareilly Junction at 0500 hours and tried his level best to locate the purse but could not.  The complainant No.2 also made many complaints to the Officers of OPs but to no avail. The complainants, attended the enquiry/proceedings on various dates and as and when directed by the OPs, but the OPs failed to compensate them.  The complainants finally received letter dated 29.08.2007 whereby they were informed that TTE of the coach was held responsible for not providing proper guidance and assistance to the complainants and he was debarred from the train working duty to avoid recurrence of such incident.  The complainants wrote letters dated 02.11.2007 and 05.12.2007 regarding compensation but to no effect. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                      The OPs in their written reply admitted that the complainants along with their children went from Chandigarh to Bareilly and came back. It was pleaded that the complainants hatched a conspiracy to get undue benefits from OPs.  It was alleged that instead of keeping the jewellery in safe custody, the complainant No.2 preferred to take the purse to the toilet and this story itself proved that the same was concocted by the complainants to get undue benefits from OPs. It was admitted that the complainant No.1 contacted the TTE and the AC Coach attendant.  It was denied that the train was at that time leaving the platform at Bareilly whereas the train had already left the platform and was passing through the tracks of the Bareilly junction. It was pleaded that every passenger knows that chain pulling systems are available in each and every compartment and the complainants being well educated, one could not believe that the system of chain pulling was not to their knowledge. It was pleaded that when the TTE Mr. A.A.Khan could not stop the train by pulling the chain, then the first effort on the part of TTE was made to approach the Commercial Control Office by contacting from his own mobile number for getting the train stopped to provide help to the complainants to search out their lost purse, which allegedly had fallen in the toilet, when used by the complainant No.2. It was denied that the chain system was defective or that the complainant No.2 during her journey ever made any complaint to the Escorting Police Party of the train in question or ever lodged a formal complaint with the Guards of the Train except the one made at Chandigarh Railway Station.  It was stated that the complainant never got registered any F.I.R. with the Bareilly Police Station regarding non-tracing of the alleged purse even after reaching Bareilly Junction on 17.06.2007. Remaining averments were denied, being wrong. Pleading that there was no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint was made.

4.                      Parties led evidence in support of their case.

5.                      After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint as mentioned in the opening para of this order.

6.                      Feeling aggrieved, the instant appeals have been filed,  one by the complainants for enhancement and the other by the OP-5 for setting aside the impugned order.

7.                      We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully. 

8.                      The contention of the ld. Counsel for the OPs is that there was no negligence on their part and rather the negligence was on the part of the complainant who claims to have taken her purse, containing gold ornaments and cash, inside the toilet instead of handing it over to her husband Alok Kumar, complainant No.1.  It is argued that there is no proof if the ornaments and cash, mentioned in the complaint, existed or were in the bag.  He has also referred to the affidavits of the witnesses produced by the OPs to show that there was no function at the residence of the relative of the complainants in which they could participate or bring ornaments.  It is contended that the complaint is liable to be dismissed.  We do not find any merit in these arguments because there was deficiency in service on the part of the OPs as the chain provided in the AC coach did not work when pulled to stop the train.

9.                      The case of the complainant is that they had gone from Chandigarh to Bareilly on 2.6.2007 to attend the engagement of their close relative.  They started back from Bareilly to Chandigarh on 17.6.2007.  In order to deny the function at Bareilly, the OPs submitted three affidavits, Annexure OP-4 of Rajender Kumar Saxena, Annexure OP-5 of Anil Kumar and Annexure OP-6 of Zahid Khan.  However, a perusal of these affidavits show that they nowhere denied the function which took place in June 2007.  In fact, they have mentioned that the function did not take place in the month of June 2006, but it was nobody’s case if the said function took place in June 2006 and not in June 2007.  The ld. Counsel for the complainant argued that it was a device coined by the OPs to confuse the matter by giving a wrong year in the affidavits.  As against it, the ld. Counsel for the OPs has argued that it was a typographical mistake and June 2006 should be read as June 2007.  We do not find any merit in this argument.  The assertion that it was a typographical mistake could be said only by the deponents and not by a third party.  It is the affidavit of the deponents who have mentioned a specific month and year in their affidavits.  If there was any clerical or typographical mistake therein, there was ample time at the disposal of the deponents as well as the OPs to correct the same by following the procedure prescribed under the law, which they did not.  These affidavits are, therefore, to be read as they exist and it cannot be said on their basis if there was no function at the house of Parmod Kumar in June 2007.   

                   There is also affidavit of Ram Kumar (Ex.RY) and a certificate (Ex.RX) issued by Javed Khan, Ex-Councilor, Mankameshwar Mandir Ward, M.C. Lucknow to show that there was no function at the house of relative of the complainants.  However, the certificate (Ex.RX) cannot be read into evidence as no affidavit in support thereof has been filed.  As against it, there are affidavits of Alok Kumar (replication to the preliminary objection by way of affidavit, para 4), Poonam Saxena and Ramji Sahai Saxena to prove that there was a function in June 2007 at the house of Ramji Sahai Saxena.  It is, therefore, proved that the complainants had gone to Bareilly to attend the said function.  Even if there was no function that makes no difference because it has been admitted by the OPs that the complainants travelled to Bareilly on 2.6.2007 and were coming back by the said train on 17.6.2007 when this incident took place. Whether there was a function, or not is, therefore, not of much significance. 

10.                   Annexure C-1A is the reservation slip showing that the complainants were to come back from Bareilly to Chandigarh on 17.6.2007 when, according to complainant No.2, her purse fell in the toilet. She reported the matter to the TTE and AC coach attendant pulled the chain but the train did not stop.  The TTE also rang up the Station Master.  When the train stopped at the next station Rampur Alok Kumar, husband of complainant No.2 got down and went back to Bareilly by bus but did not find the purse at the spot.  He then came back from Bareilly to Ambala Cantt. Vide Annexure C-2.  After the complainants reached Chandigarh, Alok Kumar again went back from Chandigarh to Bareilly vide Annexure C-6 and a complaint Annexure C-7 was lodged.  Thereafter Alok Kumar came to Moradabad vide Annexure C-8 and gave a complaint (Annexure C-9) at Moradabad.   From Moradabad, he came to New Delhi vide Annexure C-10 and from New Delhi to Ambala Cantt. vide Annexure C-11. The OPs conducted an enquiry for which also both the complainants went to Moradabad vide Annexure C-17. Annexure C-20 is the intimation given by the OPs to Alok Kumar, complainant telling him that the concerned TTE of the coach was held responsible for not providing proper guidance and assisting him in lodging the FIR; that suitable departmental action has been taken against him and he has been debarred from train working duty so as to avoid reoccurrence of such complaints in future.  These documents, therefore, sufficiently prove that such an incident had taken place in the said train.

11.                   It is also argued by the ld. Counsel for the OPs that there was no negligence on their part and the loss, if any, did not take place due to the negligence or misconduct on the part of the Railway Administration or any of its officials.  In order to appreciate this argument, a brief recapitulation of the facts would again be necessary.  When the purse fell down in the toilet, Poonam Saxena, complainant No.2 informed the Railway attendant/TTE upon which the chain was pulled not only by Poonam Saxena, but by the said attendant/TTE also.  The purpose of pulling the chain was to stop the train but it did not stop.  Annexure C-4 is the writing given by Railway attendant showing that chain was pulled but the train did not stop.  It was admitted by the OPs in preliminary objection No.4 (at page 9) of their written reply that the said TTE from his mobile number had given a call to the Commercial Control Office of the Divisional Railway Manager, Moradabad to approach the said Commercial Control official to manage the stopping of the train as the chain, which he has pulled with the assistance of his assistant/ attendant, was not proved to be fruitful in stopping the train.  Again in para 5 (at page 17) of their reply on merits, it was admitted that “when the TTE Mr. A.A. Khan could not pull the chain and could not stop the train, by puling the chain, then the first effort on the part of the TTE……………….”  Again it was admitted that there can be a possibility that pulling the chain by less using of force may not be even sufficient for getting the speeding train, like Express trains, and the train in question to stop.    In para 13 (at page 21) of their reply, the OPs mentioned that merely non stopping of the train, after pulling the chain, does not, per se, establish any guilt or negligence on the part of the Railway Authorities because it depends upon the person who is pulling the chain as to how much force he has used and secondly it also depends upon the speed of the train.  Mr. Adil Ali Khan was attending the compartment AC of the said train on the fateful day and has submitted his affidavit, in para 5 of which he has admitted that he was informed by the complainant regarding falling of the alleged purse by complainant No.2, while using the toilet and in order to get the train stop, which had already picked up the speed after leaving the platform, the complainant and the coach attendant made an effort to pull up the chain, but were not successful.  During enquiry by the Railway Authorities, proceedings of which are Annexure C-19, it was alleged by the officials of the Railway (as mentioned at page 719 of the District Forum file) that the train could be stopped by pulling the chain only if the chain is pulled by 6 or 7 persons from different coaches.  However, there is no such requirement mentioned in the inspection manual of the Railway Board, a copy of which has been placed on file.   This contention, therefore, has been introduced simply to justify their deficiency in keeping the proper maintenance of the chains fitted in the coaches to stop the train, in case of emergency.  When the TTE was informed, he tried to contact the Station Master, but nothing happened. Had the staff been careful, the Station Master would have picked up/got picked up the purse from the spot, but they did not.  It was, therefore, deficiency/negligence on the part of the Railway Administration in not keeping the chain in the train in working condition and not taking any action to recover the purse from the spot, when they had been duly informed.  The OPs, therefore, cannot escape the liability when they do not keep the chain in the train in working condition, which could be utilized to stop the train in case of emergency. The OP-Railways is, therefore, not protected under Section 100 of the Railways Act.

12.                   As regards the ornaments and cash, the complainants submitted an application (Annexure C-23) mentioning therein the various ornaments. They also attached with it the cash memos vide which the said ornaments were purchased.  In the absence of affidavits to prove the same, mere production of these receipts, however, cannot be considered to be a sufficient proof that the said ornaments and cash were in the purse which fell down in the toilet.  There was contributory negligence on the part of the complainant that she took the ornaments and cash in the purse alongwith her in the toilet and did not hand it over to her husband, who was travelling with her nor hung it in the toilet. 

13.                   The ld. District Forum has granted a compensation of Rs.50,000/- for physical harassment, mental agony and pain as well as financial loss to the complainant and Rs.10,000/- as costs of litigation.  We have given our careful consideration to the facts of the case and are of the opinion that the compensation allowed is just and proper and there is no scope for enhancing the same or reducing it, as claimed by the parties respectively.  We are, therefore, of the opinion that there is no merit in any of the appeals filed by the parties and the same are accordingly dismissed.  Parties are left to bear their own costs.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

18^th July, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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