FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the complainant in a capsulated form is that, the complainant was travelling by train being No.22642 Shalimar TVC Express from Shalimar to Cuttack on 24.07.2018 in Coach No.A-1  Class II A.C. , Birth No. 37 (Lower Birth) , PNR No. 6416773460 . The complainant boarded the train from Shalimar Station and at about 10.30.pm the complainant felt asleep after departure of Santragachi Junction. Suddenly the complainant woke up at about 12.45 am to 1.00 am on 25.07.2018 and noticed that his Leather Bag which kept by the side of his bed containing valuable articles along with credit and debit cards , papers and documents was stolen. After noticing the said incident the applicant drew the attention of co-passenger namely Sri Amit Kumar Sengupta. The Attendant of the said train was missing at the material point of time and late the person was found sleeping on the upper berth of the said coach. Thereafter the complainant lodged a written complainant before the Train Manager of the said Trainand the format was supplied by the said manager. Said written complaint was treated as F.I.R. by the said Manager. The complainant made his earnest request to the RPF and GRP at Kharagpur to find out his stolen articles. But they did not pay any heed. After returning to Kolkata on 27.07.2018 the complainant received an alert mail from SBI that someone had illegally tried to withdraw RS.10,000/- from Balasore ATM of SBI but did not succeed as the PIN No. of the said SBT credit was unknown to culprit. The same incident was conveyed to D.G. police Railway Cuttack, Odisha by e-mail dated 09.08.2018 and 19.08.2018, but no action was taken from his office . Having no other alternatives the complainant has compelled to seek relief /reliefs before this Ld. Commission.

OPs contested the case by filing written version assailing the maintainability of the case. OP denying all allegations against them states that the case of the complainants is vexatiou, speculative , harassing , malafide and misconceived and barred by principles of waiver , estoppel and acquiescence and is also barred by the principle pronunciated by the Constitution of India and as such the case as framed is not tenable and sustainable in accordance with the provisions of the Constitution of India . The instant case is filed against an individual. It is further stated in relation to whom, there was/is no service was purchased and/or expected to be purchased and there was/is no relationship of buyer / consumer and service provider. The OP stated that the bonafide passenger-ship of the Claimant is also disputed and the Claimant is hereby called upon to produce the appropriate and valid documents. The articles /properties as mentioned in the complaint petition are vague, indefinite , insufficient , unidentifiable and as such no effective adjudication is possible therein and thereon. Moreover it is bounded duty of the Claimant , if he were at all a bonafide passenger , to take appropriate minimum measures of protection by locking as also chaining the so-call bag / luggage had there been at all. It is also doubtful and suspicious while there were many other passengers in the said coach and the Berth No.37 is situated in the middle of the coach none is affected excepting the Claimant , if at all had there been any such incident . It is also fact that the berth No.37 of the Claimant and Berth No.30 of the said co-passenger Mr. Amit Sengupta was not at all adjacent to drew attention of the incident. The OP denied that there could be any relation of buyer and consumer relationship between the Complainant and S. N. Agarwal impleading him in his personal capacity by name, as such on the face of it instant application should be dismissed.

We have travelled over the complaint petition as well as the documents filed by the complainants in support of their contention together with the written version submitted by the OP in their support. Both the parties filed evidences supported by an affidavit and they have replied to their questionnaire vice versa.

On perusal of the documents on record it is found that the complainant furnished a photocopy of FIR , lodged in case of theft, from which it appears that the complainant was boarded on 24.07.2018  Shalimar TVC Express being No. 22642  in  2 AC Class (Bogie No. A1, Berth No.37 , PNR No. 6416773469 ) and the said occurrence of theft took place between Santragachi and Kharagpur Station at 11.30 pm to 1.00 am and particulars of property lost with  approx. cost are 1) credit cards , 2) driving License 3) Micromax Mobile , 4) official documents, 5)spectacles, 6) Rs.6000/- cash, 7) Pure leather bag , 8) Aadhar Card , 9) GI Roadways L/R of Rajasthan plastic stores etc .The said FIR was lodged on 25.07.2018 at 1.00am in Kharagpur to Mr.S.Nayak CTI/KUR .  Therefore submission of the Ld. Advocate for the OP ‘the bonafide passenger-ship of the Claimant is also dispute’ has no leg to stand.  In WV the main concern expressed on the part of the OP regarding the filing of the case against individual namely S.N. Agarwal, General Manager, South Eastern Railway . But there is no whisper in the four corner of the WV about the FIR lodged by the complainant on 25.07.2018 before CTI/KUR Mr. S. Nayak. In this context the complainant while replying the question No.1 crossed by the Ld. Advocate for the OP stated that:

“There is no intention of the complainant and the complainant did not file the instant case against Mr. S.N. Agarwal personally in a case of simplicitar against the Railway Body for compensation in latches and negligence on the part of Railway Body and he was and is part and parcel of Railway body so this question made by the opposite party cannot and does not arise at all.”

This submission of the complainant has no logic as any individual is not the service provider here. Therefore, the submission of the Ld. Advocate for the OP that , there is no relation of buyer and consumer relationship in between the complainant and S.N. Agarwal sounds legitimate .

It is true that the complainant did not adduce the ticket of the said journey with the complaint petition. But that does not prove that the complainant was not travelling by train No.22642(Shalimar-TVC Express) from Shalimar to Cuttack on 24.07.2018 in coach n..A-1 Class-II A.C. Berth No.37. The photocopy of the FIR in which the complainant furnished the details of the said journey along with PNR No. 6416773460 shows that the complainant is a bonafide passenger of the OP. Ld. Advocate for the complainant alleged that after the said incident the complainant and his co-passenger namely Sri Amit Kumar Sengupta who was going on the same train in the said coach having Berth No.30,PNR No.4317414956 , jointly had been trying to find out the Attendant of the said coach and found missing material point of time , but later on he was found to be sleeping in the Upper Berth without performing his duty to look after the safety and security of the passenger of the train. In the Revision Petition No. 1590of 2000passed by the Hon’ble National Commission in Union of India & Ors VS Saripur Dilsukheri Dave & Anr I (2003) CPJ 72 (NC) cited by the Ld. Advocate for the complainant wherein Hon’ble National Commissin reiterated a list of  duties of T.T.E. attached to the Sleeper Coaches prescribed by the Railway Administration . As per rules, the duties are as under:

“4.He shall check the tickets of the passengers in coach, guide them to their berths/seats and prevent unauthorized persons from the coach . He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers , do not enter the coach.

14. He shall ensure that the doors of the coach are kept latched when the trains is on the move and open them up for passengers as and when required.

16. He shall ensure that the end doors of vestibule trains are kept locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach.

17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorized persons do not enter the coach.”

The above duties clearly show that there is a responsibility on the part of the TTE and the TTE particularly required to take special care in the night. In this instant case the incident happened when the train was on move in the night. Therefore, we find that the TTE of the said train has failed to perform his duties.

Ld. Advocate for the OP argued that it was expected that the passenger should be cautious and vigilant for his or his properties minimum safety and security in his own interest. He should not be callous and negligent to invite any mischief in his own interest. In this matter we may refer an observation of Hon’ble National Commission while dealing with the identical issue inG.M. South Central railway VS R.V. Kumar & Anr reported in 2005 CTJ 862 (CP) (NCDRC) :

“A passenger travelling by a train is entitled to carry certain baggage or luggage within permissible limits of weight , freeof cost . There is no question of entrusting such baggage / luggage to the Railway and getting a receipt thereof. If a loss takes 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 reasonable care of his personal baggage as expected of a prudent person.”

In the FIR Form it is clearly mentioned that:

Form to lodge first information Reporting / complaint to police are now available with Coach attendants , Guards , Railway protection force (RPF) and train escorts in running train and with rpf Assistance post , RPF Post / Outpost in in important railway station . The affected passenger are requested to fill in the forms with relevant information and hand over to the abovementioned Railway officials / RPF Personnel the same shall be promptly forwarded to the Government Railway Police (GRP) concerned for registration and further action . Passengers are not required to break their journey for lodging their report with the police.

From the abovementioned declaration a conclusion can be drawn that it was the duty of the CTI/KUR to put forward the said FIR to the concerned authority for taking the necessary action. A letter dated 10.02.2020 reveals that the Sr. Divl. Comml. Manager of Kharagpur asked The Addl DG of Police Railways of Odisha and The OC-GRP&RPF of Kharagpur Railway Station ‘to enquire into the matter whether any FIR has been lodged or not’ before the aforesaid authorities . The Occurrence took place on 24.07.2018 and the railway authority took initiative in 2020 in reference of Consumer case 506 of 2019 before the Hon’ble District Redressal Forum/Kolkata-II(Central) in the matter of Joydeb Banerjee VS – S.N. Agarwal, G.M. , S.E.Rly. The OP did not come up clearly about the FIR lodged by the complainant before the CTI/KUR rather tried to project the whole incident as fake one and failed to give any valid reason or to furnish any documents in this regard.

In view of the above fact we are of the opinion that there is a gross negligence and deficiency on the part of the OP authority .i. e. General Manager, South Eastern Railway. In our observation Mr.S.N. Agarwalas an individual is not responsible / liable for the dispute stated in the complaint petition. The entire responsibility/liability lies upon the General Manager, South Eastern Railway.

The complainant has failed to furnish the reservation ticket of the said train and the valuation of articles which were inside the stolen leather bag as assessed by the complainant is not totally acceptable by us without any material document. Therefore we are of the opinion that prayer of the complainant may be allowed in part as mentioned in the FIR form .

Based on the discussion above, we disposed of the consumer case in the following terms:-

1.         OP is directed to make payment of Rs.6,600/-to the complainant

2.         OP is further directed to make payment of Rs.10,000/- to the complainant as compensation for harassment and mental agony .

3.         OP is also directed to pay Rs.10,000/- as litigation cost to the complainant.

4.         Above payments shall be made within 06 weeks from the date of this order failing which the amount shall carry interest @8% per annum from the date of the order till its realization. 

Consumer case is thus allowed in part on contest against the OP as per above observation.

Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.