1.    This appeal under section 19 of The Consumer Protection Act, 1986 (the ‘Act 1986’) is in challenge to the Order dated 15.05.2019 of the State Commission in complaint no. 35 of 2012.

2.      We have heard the learned counsel for the appellant (the ‘railways’) and for the respondent (the ‘complainant’). We have also perused the record, including inter alia the State Commission’s impugned Order dated 15.05.2019 and the memorandum of appeal.

3.    Briefly, as evinces from the material on record and the appraisal made by the State Commission, when on 15.02.2011 the complainant and his family members were travelling on reserved berths in an AC second class coach from Delhi to Udaipur via Kota, his briefcase containing jewellery, cash, etc. went missing. He initially gave first information to the police in Udaipur and subsequently got a first information report of theft registered in Kota. The police submitted its report in the court of the concerned judicial magistrate inter alia stating therein that nothing could be recovered.

4.    The State Commission vide its Order dated 15.05.2019 allowed the complaint and directed the railways to pay Rs. 15,55,300/- being the assessed value of the jewellery, cash, etc. which was stolen and Rs. 1,00,000/- as compensation and Rs. 50,000/- as cost of litigation with interest at the rate of 9% per annum from the date of filing the complaint till realisation.

5.    Learned counsel for the railways submits that in accordance with section 100 of The Railways Act, 1989 (the ‘Act 1989’) the railways was not responsible for the loss. He however further submits that the plea claiming protection of section 100 in such cases when raised earlier in another matter had not found favour with this Commission in revision petition no. 23 of 2018 Station Master, Indian Railway & Anr. vs. Sunil Kumar decided on 22.10.2018 against which special leave petition no. 19405 of 2019 was also dismissed by Hon’ble Supreme Court vide its Order dated 15-07-2019 and therefore he will not press his contention regarding protection of section 100.   

Learned counsel for the complainant submits that there is hardly any worth in such plea and the same has rightly met its nemesis. Section 100 of the Act 1989 does not provide blanket immunity to the railways. Specifically, no immunity is provided in respect of luggage which is carried by the passenger in his charge if the loss is due to the negligence or misconduct of the railways or its servants.

Section 100 of the Act 1989 is being reproduced below for reference:

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 therefor 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.

Learned counsel also draws attention to paras 11 to 14 of this Commission’s Order dated 22.10.2018 in revision petition no. 23 of 2018, which are also being reproduced below for reference:

11.       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).

12.       We furthermore note that in the facts of this case Chapter 9 and Section 100 of The Railways Act, 1989 have been correctly critiqued and appreciated by the two fora below. And also that the fora below have correctly relied on 2005(2) CPR 37(NC) G.M. South Central Railways vs. Dr. R.V. Kumar & Anr., judgement dated 04.01.2005 and 2015 (3) CPR 478 (NC) Union of India vs. Ajay Kumar Agarwalla, judgement dated 26.05.2015. 

13.       We fail to understand that, when this was an open and shut case of railways’ responsibility in an admitted case of theft in running train by unknown persons who gained entry unauthorizedly, and when such matters have already been adjudicated and settled by the National Commission, as to why the railways first agitated in the District Forum, then, on the case being decided against it by a well – appraised and well – reasoned order, agitated in the State Commission, and, then, on the appeal being dismissed in limine, further agitated in revision before this Commission. We also fail to understand that if, in such cases, in such facts, railways wishes to place reliance on Chapter 9 or Section 100 of The Railways Act, 1989, or on any other law, rule, regulation or executive order, etc., what prevents it from explicitly firming-up its terms and conditions in respect of safety and security of person and hand–held baggage in running train (as part of its salient terms and conditions) and informing the general public / passengers – consumers upfront, clearly and categorically. It would undoubtedly be self–evident (to one and all) that safety and security of person and hand–held baggage in running train is a fundamental concern of each and every passenger – consumer. 

A reasonable man would (rightly) assume that his person and hand–held baggage were safe and secure in running train (and especially in a reserved berth in a reserved coach). If the railways, with a plethora of such incidents, and with a plethora of judgments thereon, wishes to agitate or argue to the contrary, then it is reasonable and apt to require and expect it to explicitly and unequivocally state its policy apropos safety and security of person and hand-held baggage in running train. The passenger – consumer should be made aware thereof ab initio, and not be put to harassment and difficulty, uncertainty and helplessness, (only) after such incident of loss or injury.

14.       We would, here, like to draw attention to the wide meaning of ‘unfair trade practice’ as defined in section 2 (1) (r) of the Act 1986. We are consciously refraining, at this stage, in this instant case, to enter explicitly into the domain of unfair trade practice, as we feel, in the present context, that advice for systemic improvements for future would albeit meet the desired ends. Accordingly, we find it necessary and appropriate to request the chief executive of the railways to look into its laws, rules and policy in respect of safety and security of person and hand–held baggage in running train and be forthright and explicit ab initio with the ordinary passengers – consumers. We also find it necessary and appropriate to request that its officers down–the–line be instructed on its policy in respect of agitating such cases in consumer fora (here, in this case, we find that the railways agitated, unsuccessfully, in one, two, three, consumer fora, unnecessarily wasting public time and monies). A report-in-compliance to this Commission within three months will be appreciated.

Learned counsel submits that in the present case also the complainant was travelling with ladies (mother and wife) and children on reserved berths. The loss was due to negligence on the part of the railways and its servants. He further submits that vide para 14 of the aforesaid Order a direction had been made to the railways to look into its laws, rules and policy in respect of safety and security of person and hand-held baggage in running train and to be forthright and explicit ab initio with the ordinary passengers–consumers and also instruct its officers on its policy in respect of agitating such cases in consumer fora as well as to also file a report-in-compliance with this Commission. Submission is that had the direction been complied with in the spirit in which it was made there would perhaps have been no need for such frivolous appeal by the railways in an open-and-shut case of theft in running train due to negligence of the railways and its servants.

We find that the submissions of the learned counsel for the complainant are not entirely without substance. A mere reading of section 100 shows that it itself specifically excludes protection in cases of loss of luggage carried by the passenger in his charge occasioned due to the railways’ or its servants’ negligence or misconduct. Further the railways has not been forthright and explicit in respect of its policy apropos safety and security of person and hand-held baggage in running train. Additionally it would be too much to take recourse to any protection under any provision as may be theoretically existing obtusely or translucently if the same is not informed upfront ab initio to the passenger-consumer when he purchases his ticket.

6.    Learned counsel for the railways then submits that in accordance with section 103 of the Act 1989 the liability of the railways is limited. Section 103 is being reproduced below for reference:

103. Extent of monetary liability in respect of any consignment.— (1) Where any consignment is entrusted to a railway administration for carriage by railway and the value of such consignment has not been declared as required under sub-section (2) by the consignor, the amount of liability of the railway administration for the loss, destruction, damage, deterioration or non-delivery of the consignment shall in no case exceed such amount calculated with reference to the weight of the consignment as may be prescribed, and where such consignment consists of an animal, the liability shall not exceed such amount as may be prescribed.

(2) Notwithstanding anything contained in sub-section (1), where the consignor declares the value of any consignment at the time of its entrustment to a railway administration for carriage by railway, and pays such percentage charge as may be prescribed on so much of the value of such consignment as is in excess of the liability of the railway administration as calculated or specified, as the case may be, under sub-section (1), the liability of the railway administration for the loss, destruction, damage, deterioration or non-delivery of such consignment shall not exceed the value so declared.

(3) The Central Government may, from time to time, by notification, direct that such goods as may be specified in the notification shall not be accepted for carriage by railway unless the value of such goods is declared and percentage charge is paid as required under sub-section (2).

Learned counsel for the complainant submits that this section deals with ‘consignments’ and not ‘passengers’ or hand-held baggage which they carry along with them and as such is not relevant in the present facts and context.

We again agree with the learned counsel for the complainant. Section 103 deals with Extent of monetary liability in respect of any consignment, it has nothing to do with loss due to negligence of the railways in respect of hand-held baggage by a passenger on a reserved berth in running train.

7.    Learned counsel for the railways then takes the defence of para 506.1 in chapter V luggage of coaching tariff no. 26 part I (volume I) of Indian Railway Conference Association. The same is being reproduced below for reference.

506.1. Luggage in charge of Air-conditioned and First class passengers.-Passengers are requested to take into a carriage only such small articles of personal luggage as are required for their own use on the journey and can be placed in the carriage without inconveniencing other passengers or reducing the available accommodation in the carriage for sitting/sleeping or free movement.

Trunks, suitcases and boxes which in outside measurement exceed any one of the following dimensions should be carried in the brakevan and not in passenger’s compartment.

            Length                         100 cms.

            Breadth                        60 cms.

            Height                           25 cms.

If such trunks, suitcases and boxes are carried along with passenger in the compartment, they will be charged separately as luggage on their full chargeably weight without any free allowance being granted. On detection en route, such packages may be transferred to the brakevan for onward carriage. Free allowance will, however, be allowed only for the distance the packages are carried in the brake-vans. For the distance the packages are carried in the passenger compartment, no free allowance is admissible and freight due for the full chargeable weight should be recovered.

The above rules do not, however, apply where such luggage is carried in an entire compartment reserved in favour of one party.

The articles mentioned under Clauses (1) to (7) of Rule 505 should, under no circumstance, be carried with passengers as luggage. Any person who commits a breach of this rule, will render himself liable to prosecution.

All articles taken into the carriage are carried at the entire risk of the owners.

Learned counsel submits that this was made under the Rule-making power given in section 198 of the Act 1989 and was also laid before Parliament as required under section 199. The said sections are being reproduced below for reference:

198. General power to make rules.- Without prejudice to any power to make rules contained elsewhere in this Act, the Central Government may make rules generally to carry out the purposes of this Act.

199. Rules to be laid before Parliament.- Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Learned counsel for the complainant in rebuttal submits that these are not Rules framed under the Act but administrative and financial decisions taken from time to time. He further submits that the Rule-making power under Chapter XI Responsibility of Railway Administrations as Carriers is given in section 112 and these tariff can in no manner be said to have been framed under section 112. The said section 112 is being reproduced below for reference:

112. Power to make rules in respect of matters in this Chapter.-(1) The Central Government may, by notification, make rules to carry out the purposes of this Chapter.

         (2) In particular, and without prejudice to the generality of the following power, such rules may, provide, for all or any of the following matters, namely:-

         (a) the manner of packing of goods entrusted to a railway administration under clause (b) of sub-section (1) of section 98;

         (b) the goods for the purposes of sub-section (3) of section 99; and

         (c) the maximum amount payable by the railway administration for the loss, destruction, damage, deterioration or non-delivery of any consignment under sub-section (1) of section 103.

We agree with the learned counsel for the complainant. Power to make Rules in respect of matters relating to Responsibilities of Railway Administrations as Carriers is given in section 112. A mere reading of Indian Railway Conference Association coaching tariff no. 26 shows that these are administrative and financial decisions and beacons and do not by any stretch of imagination qualify as Rules framed under the Act 1989. Even otherwise these do not in any way exclude the responsibility of the railways for loss of hand-held baggage in running train due to negligence or misconduct on its part.

Learned counsel for the railways then fairly submits that he is unsure whether the coaching tariff no. 26 was framed in the form of Rules under the Act 1989 or was ever laid before the Parliament.

8.    Learned counsel for the railways then argues that the claim ought to have been made before the railway claims tribunal established under The Railways Claims Tribunal Act, 1987 (the ‘Act 1987’) and could not have been made before the consumer protection forum.  

On the other hand learned counsel for the complainant submits in this regard that this has been settled repeatedly by this Commission and lately this Commission in revision petition no. 1955 of 2015 decided on 15.07.2022 has again reiterated that establishment of claims tribunals under the Act 1987 does not in any way infringe upon or fetter the additional alternative remedy available to consumer to seek remedy by instituting a complaint apropos deficiency or unfair trade practice before the consumer protection fora established under the Act 1986. He draws attention to para 9 of the said Order which is being reproduced below for reference:

9.   The issue of maintainability of ‘complaint’ in respect of ‘deficiency’ within the meaning of section 2(1)(g) of The Consumer Protection Act, 1986 or ‘unfair trade practice’ within the meaning of section 2(1)(r) (or for that matter ‘restrictive trade practice’ within the meaning of section 2(1)(nnn)) despite other specific legislative enactments relating to different operational areas of service or trade is now no longer res integra and it is not required to unnecessarily dilate on this aspect all over again. It is well-settled that the additional alternative remedy provided to the ‘consumer’ vide section 3 of The Consumer Protection Act, 1986 in order to seek remedy for the loss and injury suffered due to ‘deficiency’ or ‘unfair trade practice’ as defined under the Act is in addition to and not in derogation of the provisions of any other law for the time being in force. It is relevant that the provision aiming to redress the scourge of ‘unfair trade practice’ i.e. a trade practice for the promotion of any service wherein any unfair method or unfair & deceptive practice is adopted is unique to The Consumer Protection Act, 1986, and that section 14(1)(f) of the said Act even confers the power to make ‘direction’ to discontinue the ‘unfair trade practice’ or not to repeat it. The wide-reaching ambit and scope of the provisions relating to the malady of ‘deficiency’ and ‘unfair trade practice’ and the enabling provisions which provide for their remedy are distinctively within the exclusive domain of The Consumer Protection Act, 1986. The provisions are especial and unique. Establishment of claims tribunals under The Railway Claims Tribunal Act, 1987 does not in any way infringe upon or fetter the additional alternative remedy available to ‘consumer’ to seek remedy by instituting a ‘complaint’ apropos ‘deficiency’ or ‘unfair trade practice’ before the consumer protection fora established under The Consumer Protection Act, 1986. No doubt the ‘doctrine of election’ or in simpler words the right of the ‘consumer’ to elect the forum to seek remedy against the wrong done is of material significance. It concomitantly goes without saying that the general principle obtains that the same remedy for the same wrong cannot be sought all over again in parallels or subsequently in another forum of concurrent jurisdiction. Also, as far as the provision of section 106 of The Railways Act, 1989 and the aspect of adherence thereto is concerned, it could only be a relevant and material facet to be considered while adjudging ‘deficiency’ or ‘unfair trade practice’ but the same can by no stretch of imagination be construed to imply that the jurisdiction of the consumer protection fora itself stands ousted. It may be one of the moot points before the consumer protection fora to see whether there has been any unjustified infringement of the provisions of section 106 on the part of the complainant and if so what shall be its consequential effect on the merits in his complaint or the evidentiary value of the same, but some alleged breach of this section can in no way be taken to imply that the jurisdiction of the consumer protection fora stands ousted.

Learned counsel for the railways submits that he is unaware whether the Commission’s said Order of 15.07.2022 was ever agitated or set aside by a superior court.

9.    Learned counsel for the railways now raises an argument that the complainant had purchased ticket only for his person and not his hand-held baggage which was being carried free. Since he did not pay for transportation of his hand-held baggage, he was not ‘consumer’ in relation to the same. He also submits that the railways has three types of protections, from the Railway Protection Force, the Government Railway Police and the Civil Police. Alternative submission is that in any case the responsibility also ought be of the State Government in addition.

Learned counsel for the complainant argues that these are preposterous propositions. Hand-held baggage is carried by passengers in the routine and if such proposition is made in respect of hand-held baggage the same can then also be irrationally and ridiculously extended to even items of personal clothing,  etc. He further submits that the complainant was the railways’ consumer. He was not concerned with the details of steps taken by the railways for safety and security or with its inter se arrangements as any with the various concerned security or protection agencies including those of the State Governments.

We see reason to agree with the learned counsel for the complainant. The complainant had paid for his ticket. He was the railways’ consumer. The service provider–consumer relationship cannot be segregated or vivisected as to exclude hand-held baggage and be limited to the human body per se alone. And the consumer is not concerned with the steps taken by the railways for safety and protection or its arrangements with the various concerned agencies including of the State Governments. Here we do not feel the need for a detailed exposition on the responsibilities of the Railway Protection Force, the Government Railway Police and Civil Police. The same would be totally misplaced in the present context.

10.    Learned counsel for the railways has no further arguments.

Learned counsel for the complainant submits that he has been unnecessarily put to the trouble of this frivolous appeal. He reiterates that the railways has not complied with the direction made by this Commission vide its Order dated 22.10.2018 in revision petition no. 23 of 2018. Submission is that the railways ought to comply with the said direction so that consumers at large are not unduly and mechanically put to travails of protracted litigation in such matters.

11.    We find that a simple case of theft in running train, when the complainant was travelling with his family including ladies and children on reserved berths, in which the negligence of the railways and its servants is writ large, has been irrationally argued with mostly irrelevant and inapplicable provisions being illogically raised. And disconcertingly enough, this Commission’s earlier advice, to be upfront ab initio on its policy regarding safety and security of person and hand-held baggage, does not seem to have been complied with.

12.    We deem it necessary and appropriate to reiterate our advice as contained in paras 13 and 14 of this Commission’s Order dated 22.10.2018 in revision petition no. 23 of 2018 (quoted in para 5 above) with the request that a report-in-compliance may be furnished by the chief executive of the railways to the State Commission within three months. The State Commission is requested to ensure compliance.

13. The appeal is totally frivolous if not vexatious and wholly bereft of worth. It stands dismissed with advice as contained in para 12 above.

The awarded amount shall be made good by the railways within eight weeks from today, failing which the State Commission shall undertake execution, for ‘enforcement’ and for ‘penalty’, as per the law.

14.  The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is requested to upload this Order on the website of this Commission immediately.  

‘Dasti’, in addition, to facilitate timely compliance.