ORAL ORDER

JUSTICE J.M. MALIK

1.      Counsel  for the parties present.  Arguments heard.

2.      Sh. Ashok Kumar Gangaram Ranglani, the complainant,  got booked/reserved  three  berths  for  going  to  Ahmedabad  from  Jalgaon, to attend  a  marriage  function.  They  were  allotted  berth  Nos. 2, 4 & 5, in II A/c Coach  on  train ‘Ahmedabad-Bangalore’.  It  is not  out  of  place  to mention here  that  he  was  not  allotted  berth No.3.  It  has also come to our  notice  that  berth Nos. 2 & 4  were  the  upper berths and berth No.5 was side lower berth.  The case of the complainant  is that he kept  his luggage under Berth No.3,  he locked it and chained it.  After some time, all of them slept, as they were to wake up at 3.45 AM.

3.      They  woke  up at  the  said time, but found that one suit case and one  air  bag were missing.  The complainant  had  four  bags,  out  of which only  two  were missing.  The complainant alleges that both the doors of the A/c coach were open and both C.B.Patel (Ticket Examiner) and attendant of the coach  were found sleeping.  The complainant wakened them up  and  informed  them  about the said theft.  A search  was made  but  nothing could be traced out.  The  contention  raised  by  the  complainant  is that air bag contained golden  and  diamond ornaments, besides ladies clothes  and  cash in the sum of Rs.17,500/-, total, worth Rs.5,55,500/-.   It  is  alleged  that  they sustained the loss in the sum of Rs.5,72,750/-.  A report  was  lodged with  the police.  The  claim  filed  by  the  complainant  was repudiated by the petitioners/Ops, the employees of Railway Department.

4.      Both the fora below have decided the case in favour of the complainant and  granted  him  a claim  in the sum of Rs.5,20,000/-.

5.      We  have  heard  the  counsel for the parties.  The learned counsel for the respondent/complainant, vehemently argued that both the fora below  have  decided  the case in their favour.  The District Forum and State Commission have  evaluated  the  evidence and orders passed by them are  quite  legally  tenable.  He  also submitted that complainant’s stand establishes that  both  the  railway  employees  were  sleeping and they being  negligent,   are  liable  to reimburse  the complainant.  He has cited a number  of  authorities  in support  of his case.

6.      He also pointed out that one of the judgments of this Commission, titled Union of India Vs. Dr. (Smt.) Shobha Agarwal,  which  has  the  identical  facts, is in favour of the  complainant,  decided  on  22.07.2013 in Revision Petition No.602/2013.  Aggrieved  by  that  order,  the Union  of  India, Railways, filed Special  Leave to  Appeal (Civil)  CC No.761/2014, before the Hon’ble Apex Court, which,  vide its order dated 31.01.2014, was dismissed.  Besides this, he has cited the following authorities.   (1) Southern Eastern Railway Vs. Kum. Bharati Arora, (2) G.M. South Central Railway  Vs. R.V. Kumar  &  Anr.,  (3) General  Manager, Southern Railway  Vs. A. Shamim, (4) South  Central  Railway &  Ors., Vs. Jagannath  Mohan Shinde,  (5)  Mrs. Kanthimathi Vs. The Government of India, (6)  Union of India & Ors., Vs. Sanjiv  Dilsukhrai  Dave & Anr., (7) Divisional  Railway  Manager & Anr. Vs. Abhishankar Adhikari,  (8) Union of India Vs. Vikasdeep Sharma, (9) Union of India Vs. Smt. Kavita Madan.

7.      He  further  mentioned  that  the  complainant  has  given  the  list      of the  stolen articles at the very first available opportunity before the Police.

8.      All  these  arguments  have  left  no impression upon us.  This case  is supported by the Hon’ble Apex Court’s authority,   reported in Special Leave  to  Appeal (Civil) Nos. 34738-34739 of 2012, titled  Vijay Kumar Jain Vs. Union of India & Anr.,  wherein  the  Hon’ble  Apex Court, passed a detailed order, holding, as under :-

“The petitioner Shri Vijay Kumar Jain made strenous efforts to convince us that the three consumer forums committed serious error by not entertaining his claim for compensation.  He also attacked the order of the National Commission on several grounds, but we have not felt impressed.  As per the petitioner’s own case, he had been allotted berth  No.41, in sleeper coach, S-2, and he had voluntarily placed attache case on berth No.43.  Therefore, the railways cannot be held responsible for the alleged loss of attache case by way of theft or otherwise and we do not find any valid ground to entertain his challenge to the orders passed by the District Forum, State Commission and the National Commission.

The special leave petitions are accordingly dismissed”.

9.      We  are  of  considered view  that  the case  referred above neatly dovetails with  the facts of this case.  The other authorities have got different  type  of  facts.  In  this case too, it is difficult to fathom, why did the  complainant  keep  the  bags  under  berth No.3.   Although,  we admit that  berth Nos. 2 & 4 were the upper berths, but berth No.5 (which was also allotted to him) was a side lower berth,  which was a safe place to keep the luggage.  No  explanation  is  forthcoming.   Keeping  the luggage under  Berth  No.3  shows  negligence,  inaction and passivity on the part of  the  complainant, when  such  like valuable things were involved.   He should have  taken   extra care and should have  kept the air bag containing  the  valuables  with him at berth No.4.  Even at berth Nos. 2 & 4, there  is  enough  space  to  accommodate  one or two bags.  Most of the people use it as pillow.

10.    It is alleged that both C.B. Patel and attendant were sleeping.  The evidence  of  the complainant is rebutted by the evidence of C.B. Patel, who has filed  an  affidavit  on record, denying all these allegations. Moreover,  when  the  train stopped at a particular station, it cannot be assumed that at that time, C.B. Patel and the attendant must be sleeping.

11.    The counsel  for  the  complainant  was  asked  to  show the proof that  these goods were stolen.  He submits that photographs of the complainant   showing   jewellery  have  been  placed on  record.   Such like evidence  can  be  manipulated  at  any  time.  It  has also no guarantee  whether  these are artifical jewellery or the real jewellery.  Those  jewellery  cannot be  identified  with the alleged  stolen  property.  No purchase receipts saw the light of the day.

12.    It  is also  difficult  to  understand, why  he was  carrying so much cash in the air bag.  The story propounded by the complainant  is improbable and untrustworthy.   Nobody keeps cash in the air bag.  Extra precaution  should  have  been  taken  for keeping the valuable bags safely.  These  should  have been booked with the Railway Department.   In  the  result,  we set aside the orders passed by the fora below, accept the revision  petition  and  dismiss  the  complaint.