Date: 19-02-2015
Sri Debasis Bhattacharya
This appeal is directed against the Order dated 07-02-2014 in Case No. 341/2012, passed by the Ld. District Forum, Kolkata, Unit II, whereby the complaint has been allowed on contest against the OPs. Being aggrieved by and dissatisfied with the same, the OPs thereof have preferred this appeal.
Case of the Complainant, in short, is that he took a pleasure trip to North India along with other family members during the period from 26-10-2012 to 11-11-2012. While boarding the scheduled S-4 coach of the Jammu-Tawai-Varanasi Begampura Express (Train No. 12238) on 09-11-2012 at Ambala Cantonment, he found that the door of said compartment together with some other coaches, i.e., S-1, S-2 and S-3 were completely locked from inside the said slated coach and was full of unreserved passengers. Finding no other alternative, he boarded S-5 coach which was also in a chock-a-block condition and while rushing, he lost 3 bags. Next day, he lodged an FIR with Varanasi GRP and after some refreshment, he boarded the reserved S-I coach of Vibhuti Express from Varanasi at 6.25 p.m. At 2 a.m., his son-in-law woke up due to some noise inside the compartment, but found the luggage were intact at that time. However, next morning at about 6 a.m., he woke up to discover that his trolley bag and two VIP bags under the seats containing dresses, woolen garments, identify proof, credit cards, ATM cards and cash Rs. 11,500/- went missing. Therefore, another FIR was lodged with Howrah GRP and after returning home, locked the Credit Cards and Debit Cards except the debit card of his daughter. Next day, when his daughter went to the bank to obtain duplicate card, she was horrified to find that before the card was locked on that eventful day, i.e., 11-11-2012, a sum of Rs. 25,000/- was stolen from the ATM outlet. The Manager, UBI, Tobin Road Branch vide his letters dated 21-11-2012 and 22-11-2012 confirmed withdrawal of money from Patna Railway station ATM counter of Indian Overseas Bank. Although he wrote to Jasidih GRP requesting their intervention in the issue, the letter remained unanswered. All the three incidents of theft took place between 09-11-2012 to 11-11-2012 within the administrative jurisdiction of the Railways. Hence, he filed the instant case for relief(s) as per prayer of the petition of complaint.
It is the case of the OP Nos. 1&2 that the addresses of the OP Nos. 1 to 4 are beyond the territorial jurisdiction of the Ld. District Forum. Moreover, the alleged cause of action did not arise within the territorial jurisdiction of the Ld. District Forum. The case is bad for multifariousness of different cause of actions which are said to have occurred on two different dates at two different places and time in two separate trains in different States under two different railway administrations. So, the said cause of actions cannot and should not be clubbed together in a single case. The instant case is also bad for non-joinder of necessary parties. The GRP, Haryana and WB are necessary parties to the case. In terms of the Railways Act, 1989, railway administration shall not be responsible for 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 baggage which is carried by the passenger in his charges, 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. In the instant case, the Complainant did not book his baggage. Ambala Station is a junction station where ticket checking staff manning the reserved coaches of the train in question replaces. On that date also new crew members of ticket checking staff boarded the train and took over the charges of the train (including the coaches in question). As per complaint, doors of Coach Nos. S-1 to S-4 were closed/jammed from inside and the same were full of unreserved passengers. But, if it was indeed so, it would not have been possible for the ticket checking staff or other passengers to board/leave the said compartments. As per GRP complaint at Varanasi police station, in respect of the first incident at Ambala Cantt. Station, the Complainant lost his luggage and theft was not reported. The said matter pertains to GRP, Haryana, who works under the State Government and not under the railway administration. It appears that if they lost any of their belongings, they lost it due to their own negligence. It is clear, therefore, that this is not a case of deficiency in service by Railways, hence no compensation is due to the Complainant on account of alleged deficiency in service. The occurrence of theft is a criminal offence which is cognizable, triable and punishable by a 1st class Judicial Magistrate and it is not a consumer dispute. So, the Ld. District Forum has no jurisdiction to adjudicate the same.
The moot point for consideration under this appeal is whether the impugned order is in order as to fact and in law, or not.
Decision with reasons
Ld. Advocate for the Appellants, who only filed BNA for the Appellant Nos. 1 and 2, has submitted that this complaint case is not maintainable against the OP Nos. 1 and 2 as their offices are situated beyond the territorial jurisdiction of the Ld. District Forum. The alleged cause of action which arose at the Ambala Cantt. Station is also beyond the territorial jurisdiction of the Ld. District Forum. The instant case is also bad for non-joinder of parties. The incident of alleged withdrawal of money using stolen debit card occurred at Patna railway station. This was also beyond the territorial jurisdiction of the Ld. District Forum. The Respondent has failed to give cogent evidence in support of his claim. He did not even give evidence of his accompanying persons, like his wife, daughter and son-in-law to corroborate his testimony. He also did not give evidence of any other passenger who might have seen the alleged incident. It is claimed by the Respondent that no ticket checking staff or guard was present at the Ambala Cantt., but Mr. Sanjeev Kumar, train ticket examiner deposed before the Ld. District Forum stating that the train halted at UMB for 18 minutes and many ticket checking staff were present there and some passengers boarded and some passengers detrained the train at Ambala Cantt. Station and that no other complaint in that regard was lodged with the on-board ticket checking staff or RPF nor did the Complainant approach him for any inconvenience caused to him at Ambala Cantt. Station and denied that the doors of coach nos. S-1 to S-4 were locked from inside. The three luggage were misplaced due to negligence of the son-in-law of the Respondent, for which the Railways cannot be held responsible in any manner. Moreover, it is admitted by the Complainant that he did not book the luggage with the Railways on payment of necessary charges as per Railway Rules. The Complainant cannot evade his responsibility for not tying the trolley bag and the VIP bags with shackles fixed beneath the seats. The Complainant also failed to give any description of his said three luggage and their contents. The impugned order is misconceived, erroneous and bad in law and as such, the same be set aside. The Ld. Advocate has filed a copy of order of the Hon’ble Supreme Court in SLP (C) No. (S) 34738-39 of 2012 and another decision of this Commission in FA No. 653/2010.
Representative of the Respondent, on the other hand, has submitted that it is an undisputed fact that he had valid reserved tickets in the sleeper coach of Jammu Tawai Varanasi Begampura Express. It is admitted by the OPs that after the said train reached Varanasi, he boarded the S-1 coach of Vibhuti Express and when the said train reached Howrah station, they detected the theft of baggage. The whole defence of the Railways is that the railway authority has no responsibility as carrier of the luggage of passengers as per provisions of Sec. 100 of the Railways Act, 1989 unless such luggage are booked with the railway authority. The railway authority cannot in any way claim that they have no responsibility in case the luggage is not booked. The issue of not tying the luggage with shackles beneath the seats was not raised by the Appellants in course of hearing before the Ld. District Forum. In any case, fact remains that the three luggage were tied with shackles fixed beneath the seat. All the three luggage lost were of VIP make and the keys are with him. In both the trains the concerned railway ticket checking staff allowed unauthorized persons to enter inside the reserved compartments, which is the primary reason for which he suffered losses. That fact of withdrawal of money by a tech savvy hardcore criminal has been confirmed by the authority of Indian Overseas Bank. Had the railway personnel discharged their authority sincerely, he would not have suffered such ignominy. The order of the Ld. Order is a justified one and therefore, the same be affirmed and the instant appeal be rejected with costs.
Appellants have strongly challenged the maintainability of the instant case, both on account of territorial jurisdiction of the Ld. District Forum as well as on account of non-joinder of parties. On perusal of the impugned order, we find that the Ld. District Forum has made a comprehensive discussion in this regard to dispel any sort of misgivings in the mind of the Appellants.
Undisputedly, the Respondent, along with his other family members were travelling in reserved compartments in both the trains, i.e., Jammu Tawai Varanasi Begampura Express and Vibhuti Express. Coming to the issue of loss of three luggage while boarding the Jammu Tawai Varanasi Begampura Express, the Appellants have disputed the contention of the Respondent that doors of four coaches, namely, S-1 to S4 were locked from inside which compelled him to board another compartment, i.e., S-5. The strong denial of the Appellants in this regard notwithstanding, Mr. Sanjeev Kumar, Train Ticket Examiner, who deposed on behalf of the Appellants, wittingly or otherwise, supported the contention of the Respondent. In his deposition, Mr. Kumar has stated that, ‘That no other complaint in that regard was lodged by on board ticket checking staff or RPF staff….’, implying that a complaint was indeed lodged which supports the version of the Respondent that when he drew the attention of one of the RPF personnel, he replied, ‘Diwali hai hum keya karega’.
Mr. Kumar has not clarified in his deposition before the Ld. District Forum as to whether he manned the S-4 coach or S-5 coach as ticket examiner. If he attended the S-4 coach, there was no question the Respondent approaching him as the Respondent, along with other family members, claimed to have boarded S-5 coach.
Although Mr. Kumar claimed that ticket checking staff were present there and some passengers boarded and some others detrained the train at Ambala Cantt. Station, there is no reason, other than what has been asserted by the Respondent, as to why a passenger would unnecessarily board a different compartment. Whenever a passenger enters a reserved compartment, it is the duty of the concerned ticket checking staff to verify the ticket and mark his presence in the reservation chart. If the Respondent indeed travelled in Coach No. S-4, then it must have been noted by the concerned ticket examiner; but surprisingly, the Appellants have not placed on record the concerned reservation chart or copy thereof containing the noting of concerned TTE to prove the Respondent wrong, i.e., he did not board S-5 coach, but S-4. Similarly, though it is claimed by Mr. Kumar that the train halted at UMB for 18 minutes, but surprisingly, the Appellants have not placed on record the copy of Log book of the said train to corroborate such claim.
The Appellants cannot deny that it is the bounden duty of the concerned railway officials to ensure hassle free entry of bona fide passengers inside a train compartment and for any lapses thereof, the authority must own up the responsibility. Had the Respondent been able to enter the concerned coach without difficulty, he/his family members could put all luggage inside the train compartment easily. That being the position, the Appellants cannot escape their liability for the missing of three nos. luggage of the Respondent. An FIR has also been lodged by the Complainant in this regard with Varanasi GRP and there is nothing on record to show that the investigation, if at all carried out, led to any mala fide intention on the part of the Respondent behind filing of such FIR.
As regards the alleged loss of trolley and VIP bags, though the Appellants sought to pass the buck on the Respondent holding him responsible for the loss of the same, fact remains that presence of unauthorized people inside reserved compartments of any long distance train is a pan-India phenomenon for decades. Truth cannot be wrapped under the carpet by mere denial. A major responsibility rests on the ticket checking staff, in addition to examining the tickets, that of preventing intruders entering the reserved compartments. Having brought the state of affairs to this sorry pass, the Authority perhaps resigned to the fact that nothing much can change. It is the collective collapse of faith that makes the reality so grim. No wonder, today Indian Railways has tottered to its fall and there it lies.
There is no reason to believe that the Respondent was returning from excursion with his other family members empty handed. At the same time, no one in his right frame of mind would believe that a passenger, more so, a senior citizen would take so much trouble, including fighting pricey legal battle, for the sake of making a quick buck. That apart, the documentary evidence of loss of ATM card also corroborates the claim of the Respondent as made out in the petition of complaint. It was certainly a gross dereliction of duty which resulted in deficiency in service to the Respondent. No doubt, it is expected of passengers that they would take reasonable care of their belongings while travelling in a train. But, they cannot be expected to take measures against intruders getting access inside the reserved compartments and absconding with goods, when the railway administration is under obligation to prevent such unauthorized entry. The Respondent and his family members had to pay dearly for the laches on the part of the Appellants. The documents on record sufficiently prove that the alleged loss of debit/credit card(s) resulted in a loss of Rs. 25,000/- which was withdrawn from the ATM counter of Indian Overseas Bank at Patna railway station. Since the Respondent got wind of such misplace of credit/debit card while entering the Howrah railway station, there was no scope for him to lodge a complaint at the Patna station itself.
Although the Appellants sought to take refuge under Section 100 of the Indian Railways Act, 1989, we find that the Ld. District Forum has travelled a long distance spelling out the rationales as to why the Railways cannot evade its responsibility in respect of baggage of passengers irrespective of the same being not booked under proper receipt as contended by the Appellants. The instant complaint case has not been initiated by the Respondent against the Appellants for any criminal breach of law, but it is the outcome of his frustration over gross deficiency in service/apathy of the railway administration towards the plight of a commoner like him. That being so, the instant case has rightly been adjudicated by the Ld. District Forum. In the decision of the Hon’ble Supreme Court (Supra), the Complainant placed his attaché case on berth no. 43 instead of his designated berth no. 41. While in FA/653/2010 (Supra), the Appellant/Complainant failed to substantiate his allegations. But, in this case, the matter is different. By lodging complaints to the GRPs concerned instantaneously, he showed his bona fide. Further, part cause of action did arise within the jurisdiction of the concerned Ld. District Forum.
There being no infirmity with the said findings of the Ld. District Forum, we find no reason whatsoever to interfere with the same.
In the result, the appeal fails.
Hence,
ORDERED
that the appeal be and the same is dismissed on contest against the Respondent, but without any order as to costs. The impugned order is hereby affirmed.
