Karnataka

Bangalore 4th Additional

CC/15/370

Dipika Bafna W/o Pranay Bafna - Complainant(s)

Versus

Office of the Divisional Railway Manager - Opp.Party(s)

04 Sep 2018

ORDER

Complaint filed on: 23.02.2015

                                                      Disposed on: 04.09.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027        

 

CC.No.370/2015

DATED THIS THE 4^th SEPTEMBER OF 2018

 

PRESENT

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

	Complainant/s	V/s	Opposite party/s
	Dipika Bafna, W/o Pranay Bafna, B409, GK Jewel City, Prappana Agrahara Main Road, Near Kudlu Govt. School, Bangalore-560 068.   M.B.Ravikumar		Office of the Divisional Railway Manager, Bangalore Railway Division, South Western Railway,  Kodhay Circle, Gubbi Thotadappa Road, Next to Bangalore City Station, Bangalore-560 023.   By.Adv. S.R.Khamroz Khan

 

PRESIDENT: SRI.S.L.PATIL

 

1.       The Complainant has filed this complaint as against the Opposite Party directing to pay value of jewelry lost worth of Rs.4.75 lakhs, to pay compensation of Rs.20,000/- towards deficiency of service, to pay cost of legal expenses Rs.5,000/-

 

2.       The brief facts of the case of the complainant are that the Complainant packed her luggage (3 Nos) in the night of 15.11.2014 and kept in the room where she was sleeping. Out of three luggages she kept her ornaments in one of the suitcase in a box. Next morning 16.11.2014, she along with her mother-in-law left for railway station. They boarded the train (Wainganga Express, 12252, Coach No.B2, Berth No.53 & 54 on 16.11.2014 around 11.30 a.m. from Raipur (PNR 06335571742, reservation from Bilaspur to Yesvantpur, but boarding only from Raipur) and placed their luggage under seats. In the night she slept with her mother-in-law in lower berth and she is in the middle berth. The said suitcase was placed on the opposite side of their seat and was in their site whole time. They were sleeping lightly and they did not observe any visitor in their berth during the whole journey. The complainant submits that next morning of 17.11.2014 after Yelahanka Station crossed, she and her mother-in-law shifted the luggages near the gate with her mother-in-law standing near the luggage whole time. After sometime of crossing of Yelahanka Station, 4 persons arrived near the gate asking to help us with their luggage to get down. They refused to take their help, but they insisted and told them that they too have lots of luggage and will help them first, then take down their luggage. They told them that platform would arrive on the other side of where they were standing. This made them go other side and the said suitcase was behind all luggage. They stayed there in such a fashion that the suitcase went behind 3 persons standing side by side and making suitcase invisible for them with one of the 4 persons behind the suitcase. After some 15-20 mins, those persons left and went to the other coach before arrival of Yeshvantpura station. They were in hurray of getting down since the call taxi was waiting and their train was late by one hour. They got down and went to the taxi stand. They got down at Yeshvantapura station 2.45 pm of 17.11.2014 and boarded the taxi with suitcase and other luggage tied on top of the taxi. They reached home at 5.15 p.m. and cleaned up their house, ran other errant’s and did not unpacked the said suitcase that day. Next day 18.11.2014 too, being busy with arranging the house and other luggages, she did not open the suitcase. The day after on 19.11.2014 at around 11.00 am, she opened the suitcase to find all the jewelry inside the box missing with box being present. Between the whole time of getting the suitcase inside her house until she opened it, non one other than she, her husband and mother-in-law came to house not even any servant. Under such circumstances, she suspect the 4 persons mentioned in her description of incident who came to help them between Yelahanka and Yeshvantapura station have made the theft of the valuables. Also there were no TTE, attenders or RPF personnel present at the time of incident to ensure safety of passenger. Even the CCTV camera of the location was missing.

 

3.       Details of items lost are: 1) 8 numbers of golden multicolor bangles 2) 1 number of diamond ruby studded ring 3) 1 number of golden pendant set 4) 1 pair of golden earrings, 5) 1 number of designer peacock shaped golden ring 6) 1 number of golden stone studded ring 7) 2 number of fancy golden ring. The complainant further submits that she lodged FIR at GRP/Yeshvantpur on 19.11.2014 and lodged complaint at public grievances portal on 24.11.2014, sent multiple reminders notices via public grievances portal, responded to the letter from IG  cum chief Security Commissioner RPF regarding status of the FIR and complaint on 27.1.2015, sent e-mail to all related officials regarding the case on 25.1.2015 and visited multiple times to Yeshvantpur & Bangalore GRP stations to inquire about the case progress. With all these efforts, she has not got any positive outcome from the OP. she has also requested the OP to pay for worth of the lost items as it is their responsibility to maintain security of passengers and their belongings. But she has not got any response other than that case is under investigation. Hence, the complainant submits to allow the complaint.    

 

4.       After issuance of the notice, the OP did appear and filed the version. The sum and substance of the version filed by the OP is that this Forum has no jurisdiction to entertain the complaint filed by the complainant as the Union of India has not made as a necessary party. Further submits that the complaint is also not maintainable for want of jurisdiction. The OP further submits that the reading of the complaint averments, it reveals that no luggage was booked by the complainant nor any luggage was entrusted to the custody of the railways for transferring or carrying the same. Therefore, the liability of railway if any for any loss of luggage would only be when the luggage is booked or entrusted to the railways. Section 100 A of Railway Act, 1989, the same is reproduced hereunder:

“ A Railway administration shall not be responsible for the loss, destruction, damage, deterioration or 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”

Makes its abundantly clear that in case of loss of luggage only when the luggage is entrusted. In the instant case, the complainant has not entrusted any luggage or any value by paying any charges to the railways. Therefore, the above complaint is liable to be dismissed for want of jurisdiction.

 

5.       Further submits that the jurisdiction of this Forum is also barred in view of sec 13 and 14 of Railway Claims Tribunal Act, 1987. Since the remedies provided under the Railway Tribunal Act, the complainant cannot invoke the jurisdiction of this Forum. The OP further submits that it has specifically denied the claim of the complainant stating that 4 unknown persons had approached near Yelahanka while the complainant and her mother-in-law were standing near the luggage and they extended their help to move the luggage and they were standing near the luggage in such a manner that the luggage was behind them and the luggage remained invisible and 15-20 minutes thereafter they left before arrival of YPR station. Further OP denied that the complainant was in hurry to alight from Yesvantapur station and they boarded the call taxi with suitcases and other luggage’s tied on the top of the taxi and they reached home at 5.15 pm with luggage and the complainant did not unpack the suitcases same day and the next day also the complainant being too busy did not open the suitcases and only on 19.11.14 at 11 am when the complainant opened the luggage or suitcases and she found the jewelry box inside the suitcase were missing and during this period till the complainant opened the suitcase other than husband and mother in law nobody had come to the house and therefore given the circumstances, the complainant strongly suspects the 4 persons who were standing near the luggage in the train responsible for theft, are nothing but tissue of lies and this is well crafted fabricated story created by the complainant to have an unlawful gain at the cost of railways. The other averments made to effect that there were no TTE, attender, RPF personnel present to ensure the safety of the passenger and there were no CCTV camera at the time of the incident and on PF No.3 at YPR station are denied as false and baseless. The OP submits that the complainant had not lost nay valuable much less the valuable mentioned the complaint. As the complainant with a malafide intention to have unlawful gain has filed this false complaint making false allegation against railways and there is no cause of action for the complaint as there was no deficiency of service on part of the OP and the complaint is liable to be dismissed for want of cause of action. The complaint is liable to be dismissed at the threshold from the contents of the FIR and also the averments made in the complaint make it abundantly clear that there was no deficiency in service on the part of railways.    There is nothing in the complaint to suggest to the fact that it was on account of the lapses on account of railways the complainant had lost the alleged valuables. Except stating in the complaint there were no TTE and there were not CCTV cameras which the OP emphatically denies the complainant has not made out any case as against the OP. It is submitted that the contents of the complaint FIR and the alleged correspondence made with the railways by the complainant disclose that it was only on account the callous and negligent act on the part of the complainant in taking care of her own valuables the incident as alleged has occurred. It is quite clear from the complaint that the complainant was not at all diligent or alert while handling the luggage which contained the alleged valuables. Though the complainant has stated that she was alert throughout her journey till she reached home. However, the very same complaint discloses that her conduct was not that of a prudent man who exercise prudence while handling carrying and taking care of the valuables. The OP submits that the contents of the complaint and the FIR on the face of it and prima facie show that the complainant has only fabricated a story of having lost the valuables worth Rs.4.5 lakhs. The complainant herself is not clear how, when and where and at what time the alleged valuables were lost. This is because in the complaint the complainant herself is not definite and clear and moreover the complainant in her complaint has stated that she has only suspected the 4 persons who were standing near the luggage when the complainant and her mother in law came near the door. Interestingly though the complainant had suspicion and doubts regarding the conduct of the alleged 4 persons who were standing near the luggage the complainant did not bother or secure the luggage from those 4 persons. Infact, the complainant had filed the complaint before the jurisdictional police only after 3 days. It is not known how the four persons were standing near their luggage picked one of the suitcases out of the three and removed only the alleged valuables, unless it was within the knowledge of those persons and the same was revealed.  Therefore, it is quite clear that the complainant as an afterthought has concocted the story and has filed the complaint. The OP submits that on reading the complaint filed by complainant after alighting from the train the complainant did not check her luggage. As aforesaid any man of prudence who carries luggage containing Rs.4.5 lakh normally would lock the suitcases. If for some reasons, the suitcase was not locked, the person would take or would extra vigilant to secure the luggage. In the instant case, when the 4 persons accordingly, to the complainant could open the suitcase and take away the box containing the alleged valuables would only show that the complainant was not at all alert and vigilant. This is simply because the complainant had not at all carried any luggage or valuables along with her while travelling from Bilaspur to Yesvantapur. The OP submits that the complainant was in hurry after alighting from the train to board the taxi and the said luggage suitcases were tied on the top of the car. From the averments made it is quite clear that the luggage carried by the complainant was not properly locked or secured and the complainant having not locked the luggage ought to have kept the said valuables with her or next to her while travelling in a public transport. In the instant case, the very fact that she had allowed the said luggage to be tied on the top of the car and later unpacked it after 3 days, only shows that no such valuables were carried by the complainant and it was only as afterthought had filed and lodged the complaint. The complainant has not produced even any iota of document or evidence to show that she owned the valuables worth Rs.4.5 lakhs. Even according to the complainant, the GRP is investigating the matter. The investigation also includes the veracity of the complaint. Now considering the fact the complaint itself is vague and not clear about the occurrence of theft, the complainant cannot invoke the jurisdiction of this Forum as the complaint is premature. Further, the railway has made provision and for the security of the passengers who carry valuables or gold articles the passengers can book the gold articles by paying requisite charges under sec.1101, Chapter 11, Indian Railway Commercial Manual, Vol. 1. In the instant case, the complainant has not booked any alleged valuables with the railways and no charges were paid nor the said valuables were entrusted to the railways when no such booking was made nor any valuables entrusted to the railways, the question of holding railways responsible for the luggage allegedly lost by the complainant will not arise. Therefore, the averments made to the effect that she carried any alleged valuables along with her while travelling is without any basis and further no such valuables were carried by the complainant. On these grounds and other grounds prays for dismissal of the complaint. 

 

6.       After filing the version, the complainant has filed rejoinder which is nothing but the contents of the complaint filed by her.

   

7. The Complainant to substantiate her case, filed her affidavits evidence and got marked as Ex-A1 to A12. The Opposite Party has also filed their affidavit evidence. The Complainant as well as Opposite Party has filed their written arguments. Heard both sides.                                                                                                                                                                                                                                                                                                                                                                                              

           

8. The points that arise for our consideration are:

1) Whether the complaint filed by the complainant is

     maintainable?

2) Whether the Complainant proves the deficiency in service

     on the part of the OP, if so, whether she is entitled for the

     relief sought for?

          3) What Order?

                  

 

9.  Our answers to the above points are as under:

 

Point No.1: Affirmative

Point No.2: Negative 

Point No.3: As per the final order for the following

REASONS

 

10. POINT NO.1 : We have briefly stated the contents of the complaint as well as the version of the Opposite Party so also the rejoinder filed by the complainant.

 

11.     The Ops by way of filing the version has specifically taken up the contention stating that the complaint filed by the complainant before this Forum is not maintainable. The jurisdiction of this Forum is also barred in view of sec 13 and 15 of Railway Claims Tribunal Act, 1987. Since the remedies provided under the Railway Tribunal Act, the complainant cannot invoke the jurisdiction of this Forum. To falsify the said contention, the complainant has placed reliance on the decisions reported in I (2003) CPJ 72 (NC) in the case of Union of India & Ors., V/s Sanjiv Dilsukhrai Dave & Anr., wherein it is held as under:

(ii) Railway Claims Tribunal Act, 1987-Section 13, 15-Jurisdiction-Absence of entrustment of luggage, Railway Claims Tribunal has no jurisdiction to entertain dispute-Loss of luggage not covered under Section 13-Jurisdiction of general Courts not barred. 

(iii) Words and Phrases-‘Goods’ and ‘luggage’-Defined.

8.       Under the Railways Act, 1989, “goods” and “luggage” are two different things defined separately under Clauses (19) and (23) respectively of Section 2 of the said Act. A plain reading of these clauses show that the word “luggage” means baggage carrying personal belongings of passengers. Further “luggage” can be either carried by passenger himself or entrust to the Railway Administration for carriage. “Goods” means container, pallets or some articles of transport used to consolidate goods and animals. It appears that “goods” connotes material in the nature of merchandise and does not include personal effects or provisions under section 13 (1) (a) of the Railway Claims Tribunal Act. The Tribunal has jurisdiction to try disputes relating to the responsibility of Railway Administration as carrier in respect of claims of compensation for loss, destruction, damage or non-delivery of animals or goods entrusted to the Railway Administration carried by Railways. The words used by the Legislature in Section 13 91) (a) (i) are “goods” and has expressly and specifically included “luggage”. Thus, under the above section, the Railway Claims Tribunal has jurisdiction to try and entertain the claim for loss etc., only of “goods entrusted” to Railway Administration for carriage by the Railways. In the present case, luggage was carried by the respondents themselves and was not entrusted to the Railway Administration for carriage by the Railways. Hence, in the absence of entrustment of luggage, the Railway Claims Tribunal has no jurisdiction to try and entertain the dispute involved in the present case.

9.       Section 15 of the above Act bars the jurisdiction of the other Courts, as regards claims falling under Section 13 of the Act. The language of Section 13 dealing with the jurisdiction of the Claims Tribunal is explained and unambiguous and since the present case of loss of luggage is not covered by Section 13, the question of any barring of jurisdiction of general Courts under section 15 of the RCT Act does not arise.

 

In the light of the decisions cited supra, this Forum has got jurisdiction to try and dispose-off this complaint. Further submits that the complaint filed by the complainant is also maintainable by virtue of Section 3 of the CP Act, which states that the provisions of the CP Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.

 

          12.     We find there is a considerable force in the arguments advanced by the learned counsel for the complainant. Hence in the light of decisions cited supra, we come to the conclusion that the complaint filed by the complainant is very well maintainable. Accordingly, this point is answered in the affirmative.

 

          13.     POINT NO.2:        It is the specific case of the complainant that herself and mother-in-law were travelling from Raipur to Yesvantpur in the train (Wainganga Express, 12252 hereinafter referred to as said train) in Coach No.B2, Berth No.53 & 54 on 16.11.2014. This fact is not denied by the OP. It is also the case of the complainant that herself and mother-in-law placed their luggage under the seats and slept. On 17.11.2014 morning after Yelahanka Station crossed, herself and her mother-in-law standing near the luggage whole time. After sometime of crossing of Yelahanka Station, 4 persons arrived near the gate extending to their help to the complainant and her mother-in-law. The complainant refused to take  their help, but they insisted and told them that they too have lots of luggage and they will help them first, then take down their luggage. They told to the complainant that platform would arrive on the other side of where they were standing. This made the complainant and her mother-in-law go other side and the said suitcase was behind all luggage. The said 4 persons stayed there in such a fashion that the suitcase went behind 3 persons standing side by side and making suitcase invisible for the complainant with one of the 4 persons behind the suitcase. After 15-20 mins, those persons left and went to the other coach before arrival of Yeshvantpura station. As the complainant and her mother-in-law were in hurray of getting down since the call taxi was waiting and the said train was late by one hour. The complainant and her mother-in-law got down and went to the taxi stand and boarded the taxi with suitcase and other luggage tied on top of the taxi and reached home at 5.15 p.m. Next day that was on 18.11.2014, the complainant was busy with arranging the house and other luggages, she did not open the suitcase. Then on 19.11.2014 at around 11.00 am, she opened the suitcase to find all the jewelry inside the box missing. Between the whole time of getting the suitcase inside in their house until she opened it, no one other than herself, her husband and her mother-in-law came to house not even any servant. Under such circumstances, she strongly suspected the 4 persons who came to help them in the said train. Further, there were no TTE, attenders or RPF personnel present at the time of incident to ensure safety of passenger. The details of the stolen property which we have already mentioned in Para-2 of this order. Hence, she is entitled for a sum of Rs.4,75,000/- being the cost of the stolen property.

 

14.         We have meticulously gone through the contents of the complaint and also version filed by the OP. As rightly pointed out by the Ops, the complainant nowhere mentioned in the complaint stating that there is negligence/deficiency of service on the part of the railway authorities. According to the contention taken by the OP, when she has noticed that her suitcase was kept behind the 4 persons, making not visible to her, under such circumstances, what prevented her to pick up her suitcase? In this context, there is no explanation offered by the complainant. Further according to the case of the complainant, the suitcase was with her at the time of getting down from the said train, till boarding the taxi and also till entering into her house and kept it inside the house. The fact of theft was noticed when she was opened the suitcase on 18.11.2014.  According to the complainant, she suspected on 4 persons.

 

15.         To cull out the truth, we placed reliance on the contents on Ex-A3 and A4. Ex-A3 is the invoice bill issued by one Sumeet Gems and Jewellers Pvt. Ltd., in respect of DMS/15R Dia.Pendent, R/D, C/K, M/C for about Rs.59,210/-. This invoice bill number is E-3726 dt.19.4.2013. With regard to the 3 rings, the invoice bill is found at Ex-A4 issued by the same Sumeet Gems and Jewellers Pvt. Ltd., under invoice bill No.E-714 dt.5.5.2013 for an amount of Rs.31,226/-. If these two bills Sl.No are strictly construed which appears to be manipulated.  The bill number as mentioned under Ex-A3 ought to have been issued after the bill number as shown under Ex-A4. But in the instant case, the invoice bill as shown in Ex-A3 has been issued dt.19.4.2013 before the issuance of the Ex-A4. Hence, we are declined to place reliance on the contents of these documents.

 

16.         Further, we noticed that there is delay in filing the complaint before concerned police. Further, we noticed that when exactly the said alleged golden ornaments were taken out from the suitcase is not specifically proved by the complainant. If the complainant would have been diligent, she ought to have taken proper care at the time of getting down from the said train to till reach her destiny.  Further, the railway has made provisions for the security of the passengers who carry valuables or gold articles, the passengers can book the golden articles by paying requisite charges u/s 1101, chapter 11 of Indian Railway Commercial Manual Vol.I. This facility is not obtained by the complainant. Hence, we come to the conclusion that the receipts produced by the complainant are got up documents. Further, the complainant has not made any serious allegations as against the OP in respect of the deficiency of service much less their negligence. Hence, the complaint filed by the complainant is devoid of any merits and liable to be dismissed, hence, the decisions cited by the OP reproduced in

1. II (2004) CPJ 27 SC in the case of Sumatidevi M.Dhanwatay V/s Union of India (UOI) and Ors.
2. AIR 1963 SC 422 in the case of Union of India V/s M/s Udho Ram & Sons 
3. I (2004) CPJ 114 (NC) in the case of Southern Eastern Railway V/s Ku.Bharati Arora
4. (2008) CPJ 370 (NC) in the case of Bala Chandrakant V/s Northern Railway
5. III (2013) CPJ 469 (NC) in the case of Union of India V/s Dr.Shobha Agarwal
6. IV (2005) CPJ 57 (NC) in the case of G.M., South Central Railway V/s R.V.Kumar & Anr
7. IV (2014) CPJ 198 (NC) in the case of Union of India & Anr., V/s Anjana Singh Chauhan
8. I (2003) CPJ 72 (NC) in the case of Union of India & Ors., V/s Sanjiv Dilsukhrai Dave & Anr., are not come to the aid of the complainant.

Accordingly, this point No.2 is answered in the negative.

 

 

17.     POINT NO.3: In the result, we pass the following:

 

ORDER

 

The complaint filed by the Complainant is dismissed devoid of any merits.

Looking to the circumstances of the case, we direct both the parties to bear their own cost.

Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 4^th September 2018).

(ROOPA.N.R)     MEMBER

(S.L.PATIL)     PRESIDENT

 

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Smt.Dipika Bafna.,who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	FIR and complaint
Ex-A2	Electronic Reservation slip
Ex-A3 to A5	Jewellary bill dt.19.4.2013, 5.5.2013, 5.7.2013,
Ex-A6-A8	Marriage photos
Ex-A9	Grievance status
Ex-A1 0	Letter from Railways
Ex-A1 1	E-mail to Chief Security Commissioner
Ex-A12	Letter dt.27.1.2014

 

 

 

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sridharmurthy N.S, Senior Divisional Commercial Manager, who being OP was examined.

 

 

 

(ROOPA.N.R)       MEMBER

(S.L.PATIL)    PRESIDENT

  

 

14.         According to the case of the complainant, the lost items which were kept in the said suitcase as shown in Para-3 of this order who intends placed reliance on Ex-A3 and A4. Ex-A3 is the invoice bill No.E-3726 dt.19.4.2013 Dia.Pendent, R/D, C/K, M/C for an amount of Rs.59,210/-. With regard to the 3 rings, the invoice bill number is at Ex-A4 bearing bill No.714 dt.5.5.2013. Looking to the date of Ex-A3 is 19.4.2013. With reference to the invoice bill number 714 marked at Ex-A4 dt.5.5.2013 are taken into consideration. The dates shown in the Ex-A3 i.e. 19.4.2013 ought to have been issued before the invoice bill passed under Ex-A4 bearing bill No.714 dt.5.5.2013. Hence, these bills are appears to be got up bills just to facilitate the complainant to get redress her remedy by dubious methods.