(Delivered on 06/09/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed by the original opposite party (for short O.P.) Nos. 1 to 3  feeling aggrieved by an  order dated 29/03/2017 passed by the District Consumer Forum,  Nagpur,   in   consumer complaint  No. 503/2014, by which  the complaint   has been partly allowed.   

2.         The case of the original  complainant /respondent  herein  as set out in the consumer complaint in brief is as under:

a.         The respondent  purchased ticket of reserved  coach of  Rajdhani Express  from Railway Station of Nagpur for going  along with his wife from Nagpur to  Delhi and then for returning from Delhi to Nagpur. He  along with his wife went  from Nagpur  to Delhi by that reserved coach as per ticket.

b.         Then , the respondent  and his wife under took return journey. They  boarded the said train  on 24/10/2013 at 20.50 hours. However,  when the train  proceeded and reached  in between Jhansi  and Bhopal station  on 24/10/2013, the respondent  noticed that his leather bag containing  Gold and Silver ornaments namely marriage locket consisting  of diamond, chain  of gold consisting  of three diamonds,  gold ring  & cash of Rs. 25,000/-,  mobile handset   total amounting  to Rs. 2,71,000/- was stolen  away. He therefore,  brought  it to the notice  of the T.C.(Ticket chequer). The said T.C. recorded  the report  about that incident  of  theft  at Bhopal Railway Station.

c.         The respondent  then  reached  by the said train  to Nagpur.  He then lodged  report about  incident  of theft at Railway Police  Station, at Nagpur. Police registered  crime  for the offence of theft.

d.         It was the responsibility  of the Railway Department  to  provide safety  to luggage  of the respondent  travelling  by the train  but  appellant  failed  to provide  the safety  measures  to protect the same   and hence, bag containing  the ornaments, cash and mobile handset  was stolen away  and thus appellants rendered deficient  service to the  respondent. The respondent  therefore,  filed consumer complaint  under section 12 of the  Consumer Protection Act, 1986, before the District Consumer Forum, Nagpur claiming from the O.Ps./appellants Rs. 2,71,000/- towards loss sustained  by him   as above  and further  claiming  compensation of Rs. 1,00,000/- for physical and mental harassment and  litigation cost of Rs. 10,000/- from the appellant.

3.         The appellants resisted that  complaint  by filing their  common reply before the Forum below. They raised  preliminary  objection that  the complaint is not maintainable as it is bad for non joinder of Chief Manager of  Railway  Department  and as the luggage  of the respondent  was  not registered  with the  appellants.  Moreover,  the  articles of the respondent  were stolen away due to his own  negligence. Vide section 100 of the Railway Act, the respondent  cannot be held  responsible  for loss of the same.  It is denied that the bag containing  gold and silver ornaments, cash and mobile hand set  was stolen  away from the railway reserved coach. It is denied that the appellant rendered deficient service or adopted unfair trade practice. It was the responsibility of the respondent himself to take care of his own articles and the ornaments when same were not booked with the appellants.  It is denied that the bag containing gold and silver ornaments, diamond and mobile hand set and cash were  stolen away due to negligence  on the part of the  respondent. Hence,  it was  thus requested  by the appellants that  the complaint  may be  dismissed.

4.         The District Consumer  Forum , Nagpur after hearing both parties  and considering evidence brought  on record  passed the impugned order  and thereby partly allowed the complaint  holding that  it is the responsibility  of the Railway Department  to prevent  unauthorised  persons entering into reserved coach and as the appellants  neglected  to prevent  them entering into reserved coach, they  failed to perform their  said  responsibility  and thus  provided deficient  service  to the respondent.  Therefore, the Forum below  directed the appellants  to pay  the respondent /original complainant  compensation of Rs. 2,70,000/- with further compensation of Rs. 10,000/- for physical and mental harassment  and litigation cost of Rs. 5000/-.

5.         Thus, feeling aggrieved by the said order, the  original  O.P.Nos. 1 to 3  have  filed this appeal against that order.  We have heard Advocate Mr. Nitin Lambat  appearing for the appellants and Advocate Mr. K.J. Khanorkar  appearing for the respondent. We have also  perused  the  record and  proceedings of the appeal.

6.         The learned advocate of the appellants submitted  in brief that  it is not the case of the respondent  that  he had  seen some unauthorised  persons entering into  reserved coach by which  he was travelling. Moreover, there is no evidence to prove that  any unauthorised  or unknown  person had entered  into the  said  reserved coach due to any negligence  on the part of the officials of the Railway Department.  Hence, he submitted that  no liability can be fastened on the appellants in respect of the loss, if any, suffered by the respondent  due to  stealing of  his alleged bag containing  articles, ornaments, cash, and mobile hand set . He also submitted that  otherwise also when the said  articles  and ornaments and cash  of the respondent  were not booked  with the appellants, there was no question of fastening  of liability  on the appellants if they are stolen away. In support of  his aforesaid submission  he relied on decisions   in the following  cases.

i           Vijay Kumar Jain Vs. Union of India  & another,  in Petition  for Special  Leave to Appeal (Civil) Nos. 34738-34739 of 2012, decided by the Hon’ble Supreme Court on 17/05/2012.  In that case attachi  which was belonging to the complainant was   negligently kept  on berth  No. 43. It was then stolen away. Therefore, it was held by the  District Consumer Forum, that  the railway cannot be held responsible. The State Commission in appeal  agreed with the said finding  of the District Consumer Forum. The Hon’ble National Commission dismissed the revision petition.  The Hon’ble Supreme Court held that  the railway cannot be held  responsible  for the  loss of attachi case and thus  dismissed   the special leave petition.  

ii.          Chief Station  Manager, South  East  Central  Railway & other Vs. Mamta Agrawal, decided by the Hon’ble National Commission in revision  petition  No. 590/2015 as per order dated 12/09/2017. In that case  it is held that  it should be proved that  loss/damage  was caused due to negligence or misconduct on the part of the  servants of the Railway Administration and  that  as  no negligence can be  attributed to any employee of the  Railway Administration,  then vide  provision of section 100 of the Railways’ Act,  no deficiency  in service  on the part of the Railway Officials  can be proved. Therefore,  the Hon’ble National Commission dismissed the complaint.

iii.         Sau. Shefali W/o. Sanjay Niranje Vs. Uniton  of India  & other,  in appeal No. A/223/2010, decided by the learned  Circuit Bench, Nagpur  vide order dated 19/12/2017.  In that case  also it was found by this Commission  that vide section100 of  Railway Act, 1989,  Railway Administration  can be held responsible  for the loss of any  luggage of the  railway passenger  only when  the said luggage is booked by the railway servant and receipt of the same is issued or when the said  loss of  luggage has been caused  due to negligence or misconduct  of Railway Administration or on the part of  any of its servant. As ornaments  of the complainant  were not booked  with Railway  Administration  and as it was not proved   that  the ornaments  were stolen  away  due to  negligence  or  misconduct on the part of Railway Administration or on the part of  its  any servant , no deficiency  in service can be  attributed  to the  servant of the Railway Administration.

 iv.       Chief Commercial Manager, Central Railway  and others  Vs. Omprakash Saraf , in appeal No. A/582/2015, decided by the State Commission, Circuit Bench, Nagpur   vide order dated 20/06/2018.  In that case  also  the aforesaid provision  of section 100 of the Railways’ Act ,1989 were considered  and decisions of the Hon’ble National Commission  and Hon’ble Supreme Court were considered  and it is held that  when it is not proved  that  the  suit case of the respondent  was stolen away due to negligence  on the part of the Railway Administration or its servant , then they cannot be responsible  for the same.

            The learned advocate of the appellants therefore, requested that  applying  the aforesaid decisions  to the present  case, the impugned order may be set aside.

7.         On the other hand,  the learned advocate of the respondent /original complainant  supported the impugned order and submitted that  the Railway Administration  failed to prove proper service to the respondent  as T.T.E. and security guard were sleeping   in the other   compartment  leaving  their  own compartment  on the mercy of God and hence, bag containing  valuables  and cash  belonging to the  respondent  were stolen away and thus deficiency in service on the  part of the Railway Administration is proved. Thus, according to him, the Forum below  has rightly directed the appellants  to pay compensation for  said loss by paying  Rs. 2,70,000/- with  further compensation of Rs.10,000/- for physical and mental harassment  and litigation cost of Rs. 5,000/-. He therefore, requested that  appeal  may be dismissed.

8.         The learned advocate of the respondent also relied on the decision in the following case in support of his submission.  

            Station  Superintendent, North Western Railway and other Vs. Jasmin Mann,  reported in 2018(I) CPR 69 (NC). In that case  the  complainant was  travelling  by railway reserved coach  at the time of incident. During night time when  complainant was sleeping  in that  reserved coach, on lower berth  she had wrapped her hand bag in her hand and kept the same on her  chest  covered with the quilt. Some unknown person had tried to snatch the purse wrapped in the her hand forcibly. The complainant tried to resist/stop the unknown person from pulling the purse and she was  dragged up to the door.  Due to this  tussle the respondent  suffered  injury to the middle finger of her right  hand. The chain of that bag  then broke and the said unknown person succeeded in snatching her said bag. The respondent  made  hue and cry. The articles of an  other passenger   were also stolen away. Report of theft  was given  to the coach attended immediately. But he  did not take any action. The gate of  the air conditioned coach  was opened.  It was found that  the  coach attendend   has committed  negligence  in his duty  due to which  the  said unknown person  entered into  the  reserved coach  and the incident of theft  occurred.  Therefore, the Hon’ble National Commission up held  the order of the District Consumer Forum below  by  which  the complaint was allowed holding  that  the said  incident  had  occurred due to  deficiency  in service  on the part of the railway department.

9.         In the instant case at the out set  we find that  the respondent  herein /original  complainant  no were stated in the consumer complaint that  at the time of incident   the T.T.E. and security  guard were sleeping  in other  compartment  leaving  their  own compartment  on the mercy of God and  that  therefore, incident  of   theft took place.  Hence,  the submission  made for the  first time  about the same  in this appeal cannot be accepted.

10.       Moreover,  there is no evidence  to show that  the incident of  theft took place  due to  any  negligence on the part of the Railway Administration  or its servant. It is very simple  case of the respondent  that  the bag containing  his valuables was  stolen away from the  reserved coach  by which  he was travelling  along with his wife. It is also not his case that  some unknown  or unauthorised  person had entered  into that  reserved coach at  any time and his  entry was  not prevented by the Railway Administration  or their servants and hence, the incident  of theft took   place.

11.       Moreover,  the respondent  has not specifically  stated in the complaint as to actual  what was the negligence  on the part of the appellants due to which  the incident of theft took place. The section 100 of the Railway Act, 1989 provides that the Railway Administration  or its servant  can be held  responsible  for the loss of any luggage of the railway passenger only when the said  luggage is booked  by the railway servant and receipt of the same is issued  or when the said loss of luggage has been caused  due to negligence or misconduct of Railway Administration or on the part of any of its servant.

12.       Admittedly, the luggage  belonging to the  respondent  was not booked with Railway Administration  and as observed above  it is neither  pleaded  nor proved  by the respondent  that  due to any  particular  negligence or misconduct of the Railway Administration  or its servant  the incident  of theft took place.  Hence, no liability can be fastened on the appellant in consequence of the alleged theft of the luggage/valuables of the respondent.

13.       The District Consumer Forum  has not considered  in right  prospective the aforesaid legal and factual aspects of the present case and erred in holding that the appellant  is responsible  for  alleged loss caused to the  respondent due to theft of his valuables  during the railway journey in the reserved coach. In the result  the impugned order deserves to be set aside.

ORDER

i.          The appeal is allowed.

ii.          The impugned order is set aside. The complaint  stands  dismissed.

iii.         No order as to cost in appeal.

iv.        Copy of order be furnished to both the parties, free of cost.