Delhi

North

CC/196/2017

AJOY KUMAR - Complainant(s)

Versus

OLD DELHI RAILWAY STATION - Opp.Party(s)

16 Apr 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.:196/2017

 

In the matter of

 

Sh. Ajoy Kumar

S/o Sh. Ganouri Paswan,

WZ-906, Ground floor,

Gali No.15, Guru Nanak Nagar,

Tilak Nagar, New Delhi-110018.                            …                          Complainant

 

                                                          Vs

 

Station Master,

Old Delhi Railway Station,

Delhi

Through Sr. Deputy General Manager,

Northern Railway,

1^st floor, Baroda House,

New Delhi.                                                  …                           Opposite Party

 

 

ORDER

16/04/2024

 

Ashwani Kumar Mehta, Member:

 

(1)      The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-      

 

a.       on 07.06.2014 at 6.30 a.m., the complainant was traveling by the train from Delhi To Patna, Train No 15484, Mahananda Express and during the journey, his  Trolley bag was stolen which was containing the Sarees 4, Gold Chain-1, Gold ring-1, ear tops -1 pairs, Neckless-1, Child Pajoro-1 Pairs, Ladies pajoro -1, Frock Suit -2 Pairs, boys clothes -6 Pairs, Girls Frock cloths -5 Pairs, Churi -3 Set, Paticot -4 Pairs, Dabba Tea-1, Important documents, etc.

b.       the Value of said stolen articles was of Rs.1,20,000/- (Rupees one Lakh twenty thousand only).

c.       the complainant lodged  FIR NO 283/2015, U/s 380 IPC on 23/04/2015 at P.S. Rly, Stn. Delhi Main.

(2).    It has been alleged that the articles were stolen due to the carelessness of OP and therefore, the OP is required to pay value of the stolen items i.e. Rs.1,20,000/- (Rupees one lakh twenty thousand only) with the compensation of Rs.50,000/- also. The Complainant has also enclosed copies of electronic reservation slip (ticket), FIR dated 23.04.2015, bills dated 10.10.2013 of M/s Hiralal Babulal Jewellers, 03.03.2007 of Avisek Jewellers, and 06.06.2014 of Laxmi Jewellers, 30.05.2014 of Laxmi Jewellers, credit card statements and  communications of the OP/Northern railway received under RTI Act, 2005.

(3)      The Complainant has filed affidavit declaring the value of the item as under:-

Sl. No.	Items description	Price	Date of purchase
1.	Two pair of silver bala wrist ring	Rs.1830/-	10/10/2013
2.	Super Disco Gold Chain	Rs.13,091/-	03/03/2007
3.	one golden ring	Rs.8,754.68P/-	06/06/2014
4.	one pair gold tops	Rs.6,753.35P/-	30/05/2014
5.	one sari	Rs.3,050/-	24/05/2014
6.	two suits	Rs.3250/-	24/05/2014
7.	one pair of shoes	Rs.580/-	29/05/2014
8.	one  frock	Rs.499.74P/-	01/06/2014
9.	one pair shoes	Rs. 1137/-	05/06/2014
10.	one paid sandal	Rs.440/-	06/06/2014
11.	three sari	Rs.1790/-	06/06/2014
Total price of all articles		Rs.52,727.74P/-

 

(4)      After considering the background of the case, the complaint was admitted as consumer dispute and notice was issued to the OP to contest the allegations before the commission. The OP has filed reply stating that:-

1. The Complainant has not approached the Commission with clean hands and has suppressed material facts. The Complainant is misleading this forum on facts as well on settled law. The complainant is unable to show as to whether he was carrying any goods/article with him or not and also that the complainant himself failed in informing the railway staff that he needs special attention or protection. It is not out of the place to mention here that there is an option for every passenger of getting his luggage booked with the railways.
2. No evidence of carrying any items by the complainant in his personal custody has been adduced and if there is any personal belonging etc. was in personal custody of Complainant, it was the responsibility of passenger to safeguard his personal belongings. This proves that if any alleged incident has happened, it was purely due to negligence of complainant.
3. the railway is not responsible for the luggage carried in the personal custody and for un-booked items also as neither any article was booked nor declared before Railways by the complainant & no amount was paid to Railway for said luggage/articles/contents in question.
4. As per Sec. 100 of Indian Railway Act, Railway is not liable for un-booked luggage, so complaint needs to be dismissed on this ground only.
5. The Hon'ble Supreme Court in the matter of Vijay Kumar Jain and as per Rule 506 of coaching Tariff no -24 has categorically held that "No liability can be fastened for loss particularly in case of un-booked items carried in the personal custody".
6. The Station Master of Old Delhi Railway Station or the Old Delhi Railway Station cannot be made the party to the present complaint case as he is not a concerned party to the case and no allegation has been made against the OP. Since no official is impleaded as OP so case needs to dismissed on account of impeding improper OP.
7. The cause of action did not arise in territorial jurisdiction of this Forum, so case needs dismissal ab-initio.
8. The incident as per Plaint held on 07.06.2014 & the present complaint case is filed in 2017. Hence, it is a time-barred case & must not be entertained as per provisions of law. It is also most respectfully submitted that even no application for condonation of delay has been filed by the complainant. As per the own complaint of the complainant, the matter pertains to date 07.06.2014 and thereafter, one FIR has been lodged after more than 10 months i.e. on 23.04.2015 and thereafter, the present case before Hon'ble Court is filed before this forum in the month of September 2017 or 1st week of October of year 2017 while case is to be filed within two years only as per law. The above noted facts it is clear that the Complainant has not filed the present Complaint within the prescribed period of limitation as provided by Section 24 A of the Consumer Protection Act, 1986, wherein it has been clearly stated that the District Forum, The State Commission or the National Commission shall not admit a Complaint unless it is filed within 2 years from the date on which the cause of action arisen.
9. In State Bank of India V. BS Agriculture Industries (2009 5 SCC 121), it has been held that: as a matter of law, the consumer forum must deal with the Complaint on merits only if the Complaint has been filled within 2 years from the date of approval of cause of action and if beyond the said period, sufficient cause has been shown and delay condoned for the reason recorded in writing, in other words it is the duty of the consumer forum to take notice of section 24A and give effect to it if the Complainant is barred by law and yet the consumer forum decides the Complainant on merit the forum would be committing and illegality and, therefore, the agreed party would be entitled to have such order set aside.
10. The entire affair pertains to law & order issue which as per Constitutional Division of Power pertains to State Police Depts., whereas in present case Railway is made as OP wrongly. Hence, case needs dismissal on account of impeding wrong parties. it has been alleged by the Complainant in his Complaint that he had suffered loss of Rs.1,20,000/- while travelling in Mahananda Exp. Train No. 15484 on 07.06.2014 from Delhi to Patna. In this regard the railway staff is not responsible for the loss of goods (without admitting) as alleged because neither the goods were handed over to the railway for its safe custody nor the staff was aware about goods of the complainant. Further, the goods as allegedly lost by the complainant were not in clock room of railway when lost as such there is no deficiency on the part of railway. The allegation is totally denied. According to complaint it may be gathered that the place of incident, if any, is not known to complainant where he came to know about the alleged theft of belongings.
11.  the train passes Delhi in approx. 15 minutes and enters in Uttar Pradesh, hence, this Forum does not no territorial jurisdiction to entertain this complaint, as per the Consumer Protection Act itself and as decided by the Supreme Court of India in the case of "Sonic Surgical case".
12. As admitted in complaint by the complainant that one case pertaining to present issue has been lodged under section 379 of IPC against unknown person. In that FIR also UNTRACE REPORT has been filed before the Ld. Court of Miss Ruby /MM, Tis Hazari Court, Delhi on 31.05.2017. This is not a case of complainant that there is any lapse in investigation of Delhi Railway police, Hence, this Forum don't have jurisdiction to entertain this complaint being the Criminal Matter and there is no ground to file this case before this Hon'ble Forum.
13. the present complaint is not maintainable before this Forum as the issue being the theft matter issue falling under Criminal procedure code as allegations like theft needs to be established by evidence etc. so case don't falls under the CPA as such this Forum is requested to dismiss the complaint.
14. The present complaint is nothing but a gross abuse of process of law as the complainant did not able to succeed in criminal complainant allegedly filed by him.
15. Complainant has not disclosed the fact that E-ticket has not been purchased from railways and purchased from IRCTC Ltd. The railway has duly provided the travelling facility.

(5).    The OP has also filed parawise reply to the complaint further stating that it is matter of record that one FIR is logged by the complainant on 23.04.2015 with P.S. Railway and Metro, Rly Station Delhi Main U/s 280 IPC having FIR no. 283/15 and it is very important to mention that the said FIR was lodged after more than 10 months from the date of journey which itself proves much delay in lodging the FIR also. Therefore, the complaint be dismissed and there is no deficiency of service on the part of OP.

(6).    The complainant has filed affidavit of evidence. The complainant has also filed written arguments on a handwritten page. The OP has also filed evidence and written arguments.

(7)      During the arguments, the Complainant has filed a copies of judgment passed by Hon’ble NCDRC in the matter of Bankey Bihari Social Welfare Society V. Delhi Development Authority & Anr., [CC No.1381/2018 decided on 13.03.2023] and also in the matter of Northern Railway Vs Neetu Gupta & Anr [RP No.3164 of 2017 decided on 14-05-2018] in support of the case. The OP has also filed a copy of judgment of Hon’ble Supreme court in SLP (c) No.34738-34739/2012 dated 02-07-2013 passed in the matter of Vijay Kumar Jain Vs Union of India & Anr.

(8)      Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that the OP has mainly contested its case on the following points:-

1. The railway is not responsible for the luggage carried in the personal custody and for un-booked items also. The  complainant neither booked nor declared any article  before Railways. No amount was paid to Railway for said luggage/articles/contents in question.
2. As per Sec. 100 of Indian Railway Act, Railway is not liable for un-booked luggage.
3. The Station Master of Old Delhi Railway Station or the Old Delhi Railway Station cannot be made the party to the present complaint case as he is not a concerned party to the case and no allegation has been made against the OP. The cause of action did not arise in territorial jurisdiction of this Forum.

(9)      We have examined these objections of the OP and found that these issues raised in para (8) a to c above, have been addressed in the judgment of Hon’ble NCDRC in Revision Petition No.1099 of 2020 passed on 25-07-2023 in the matter of Indian Railways & 2 Ors Versus Uma Aggarwal which is relevant in this case and the relevant observations/findings of Hon’ble NCDRC have been reproduced below:-

“12. Relying on above, the respondent contended that the railway personnel who were supposed to be in the coach have violated several of their duties which have been prescribed by the Railway Board by not closing the gates at night, not being present in the coach, allowing intruders in the coach, not aiding the respondent in filing the FIR among others. Hence, as they have failed in their duty, they were negligent in providing the requisite service to their consumers and the respondent herein. Thus, the Railways is liable for deficiency of service on account of negligence of its employees.

13. In Union of India Vs. Ajay Kumar Agarwalla ( supra ), this Commission held that “TTE of coach was negligent in performance of his duties by not keeping the doors of the coach latched when the train was on the move and by not keeping the vestibules doors of coach locked from 10 p.m. to 6 p.m.” Relying on this case, respondent contends that present case also warrants of the same circumstances where the doors of the coach were left open. Hence, it was a negligent act on the part of the TTE and the revisionists are liable to pay the compensation. In General Manager, South Central Railways Vs. Jagannath Mohan Shinde ( supra ), this Commission held that “If any unauthorized person is permitted to be present on the reserved compartment of a train, then Section 100 of the Indian Railways Act would not be of any help to the Railways in absolving them from any liability since anyways the Railways is responsible as a carrier of luggage if it is proved that there was negligence on its part.” Relying on this judgment, the respondent argued that the contention of the revisionists that the ld. Consumer Commissions do not have jurisdiction in matters covered Section 100 of the Act, stands invalidated. In G.M. South Central Railway Vs. R.V. Kumar 2005 SCC Online NCDRC222, this Commission observed that “A passenger travelling by a train is entitled to carry certain baggage or luggage within permissible limits of weights, free of cost. There is no question of entrusting such baggage / luggage to the Railways and getting a receipt thereof. If aloes take place of such a luggage, Railways can be held responsible provided that there is negligence on the part of the Railways or any of its servants, provided, of course, that the passenger himself has taken responsible care of his personal baggage as expected of a prudent person.” The respondent argued that in the present case, the respondent has taken more than reasonable care by keeping the purse beneath her pillow while sleeping. Moreover she tried her best to stop the snatching of her belongings and despite being a female bravely tried to catch hold of the intruder herself but was stopped by person who was supposedly railway staff as appeared from his uniform/appearance. Railway officials by keeping the doors of the coach open and by allowing an unauthorized person to enter the coach have failed to perform their duty which point towards their negligence thus causing a deficiency in service. In Station Master, Indian Railways V s. Sunil Kumar (supra), this Commission observed that “We further note that the complainant was travelling with ladies (mother and wife) and children on reserved berths in a reserved coach after paying the fares and purchasing the tickets. He was right in agitating that the railways was responsible for safety and security of person and hand-held baggage, including from unknown persons who gained entry unauthorizedly and committed theft ( the railways was undoubtedly responsible for theft of hand-held baggage from running train). Respondent argued that in the present case, theft occurred under similar circumstances as the respondent’s belongings were stolen by unauthorized persons in a reserved coach, therefore, the Railways are liable to pay compensation to the respondents.

14. Petitioner argued that jurisdiction of Consumer Fora is barred because matters pertaining to the theft is specifically barred by Section 97 and 100 of the Railways Act, extract of which is reproduced below:

“Section 97 : Goods carried at owner’s risk rate – Notwithstanding anything contained in Section 93, a railway administration shall not be responsible for any loss, destruction, damages, deterioration or non-delivery in transit, of any consignment carried at owner’s risk rate, from whatever cause arising except upon proof, that such loss, destruction, damage, deterioration or non-delivery was due to negligence or misconduct on its part or on the part of any of it servants.”

Section 100. Responsibility as carrier of luggage.—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 servant.”

A bare perusal of above provisions show that under section 100, if it is proved that loss, destruction, damage or deterioration was due to negligence or misconduct on the part of railways or on the part of any of its servant, the railways administration will be held responsible. In this case both the fora below have given concurrent findings regarding negligence / deficiency of service on the part of petitioner railways / its officials. Hence, agreeing with the contentions of the respondent, we do not find any infirmity or illegality or material irregularity or jurisdictional error in the order of the State Commission, hence the same is upheld.

15. As regards contention of the Petitioner regarding territorial jurisdiction of the District Forum, Section 11 of the Consumer Protection Act, 1986, states as follows:

“11. Jurisdiction of the District Forum.—

(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed [does not exceed rupees twenty lakhs].

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or [carries on business or has a branch office], or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or [carry on business or have a branch office], or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.”

As Railways have a Pan India presence, and the boarding point / starting point of journey by the respondent was Bikaner, District Forum Bikaner was right in entertaining the Consumer Complaint.

16. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised and case laws by the learned Counsel for the Parties, we find no merit in the Revision Petition, hence the same is dismissed.”

(10)    The judgment of the  Hon’ble Supreme Court in Imperia Structures Ltd Vs Anil Patni and Anr (2020)10 SCC 783 is also relevant wherein it has been held that "Remedies under the Consumer Protection Act are in addition to the remedies under special statutes”. This finding also counters the OP’s contention that the matter of theft is to be investigated as per the provisions of CPC.

(11)    Besides three issues raised in para (8) a to c above, the OP has also contested the complaint on the following grounds:-

a.       As per the own complaint of the complainant, the theft took place on 07.06.2014 and FIR has been lodged after more than 10 months i.e. on 23.04.2015 and thereafter, the present case has been filed in the month of September 2017 while case is to be filed within two years only as per law.

b.       As admitted in complaint by the complainant that  case pertaining to present issue has been lodged under section 379 of IPC against unknown person and in that FIR also, UNTRACE REPORT has been filed before the Ld. Court of Miss Ruby /MM, Tis Hazari Court, Delhi on 31.05.2017.

 

(12)    These contentions of the OP have also been examined and it has also been observed that the complainant has filed copies of the communications procured from the OP through RTI which corroborates that after the incident of theft on 07-06-2014, the complainant has given complaint to the TTE of S-6 for lodging FIR as a normal passenger will do in such circumstances but nothing was conveyed to him about the status of lodging of FIR. Thereafter, on making correspondence with the OP, the complainant received a reply vide letter dated 07-09-2014 from Railway Police Force, HQ, Baroda House, New Delhi  affirming the theft only.  This letter did not speak anything about lodging the FIR. However, vide letter dated 22/01/2015, it was informed to the complainant that the status was conveyed through mobile phone but the complainant has stated that the phone number written in the letter was wrong. It was further advised to the complainant to lodge FIR with Railway Police Delhi Main and accordingly, the complainant lodged FIR on 23/04/2015 wherein all details of theft was explained with details of stolen articles.  Thereafter, on persuasion of the matter by the  complainant with Railway Police, the Complainant came to know vide letter dated 21-05-2017 from SHO, PS-ODRS, Railway, Delhi  that the case has been sent as UNTRACED on 15-05-2017 which has prompted the complainant to file the complaint before this commission. Since the cause of action was continuing till 15-05-2017, the complaint has been considered within the period of limitation and cannot be said time barred. Further, it is also stated in the reply of the OP that UNTRACE REPORT has been filed before the Ld. Court of Miss Ruby /MM, Tis Hazari Court, Delhi on 31.05.2017.

(13)    In view of the above discussion, we are of the considered view that the complainant has suffered directly due to deficient service of the OP in terms of the deficiency defined in the Act which includes any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer.

(14)    Therefore, we feel appropriate to direct the OP (Northern Railway) to pay Rs.120000/-(Rupees One Lakh Twenty Thousand only) within thirty (30) days from the date of this order, with interest at the rate of 9% p.a. from 07-09-2017 (date of filing of complaint before this commission) till the date of the payment. Besides, the OP is also directed to pay Rs.25000/-(Rupees Twenty Five Thousand only) as compensation to the Complainant, for the mental pain, agony and harassment. It is clarified that if the above said amount is not paid by the OP to the Complainant within the period as directed above, the OP shall be liable to pay interest @12% per annum on the entire awarded amount from the date of expiry of 30 days period.

(15)    Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

                        ASHWANI KUMAR MEHTA                                                   DIVYA JYOTI JAIPURIAR

                                       Member                                                                                        President

                               DCDRC-1 (North)                                                                            DCDRC-1 (North)