1. This appeal challenges the order dated 11/08/2009, passed by the District Consumer Forum, Nagpur, partly allowing the Consumer complaint, bearing No. 185 of 2009, and thereby imposing cost of Rs. 15,000/- towards the loss incurred due to theft, and Rs. 5,000/- as compensation for mental and physical harassment and Rs. 2,000/- more towards cost of proceedings, on the OP Central Railway/appellant herein.
2. Respondent Smt. Pratibha Sharad Muley to be referred as complainant and appellant Divisional Railway Manager, Central Railway, Nagpur to be referred as OP for the sake of convenience.
3. Facts in brief as laid down by the complainant in her complaint are as under.

Complainant Smt. Pratibha Sharad Muley had undertaken rail journey from Pune to Nagpur on 26/03/2007 in Second AC reserved compartment of train bearing No. 2135 and she had also purchased ticketworth Rs. 925/- for the said journey. It is the contention of the complainant that after taking her meals, she slept on her bearth in the said train at about 1.30 am and when she woke up at 6.30 am when the train reachedPulgaon Railway Station, she noticed that her bag was missing. She immediately contacted the Ticket Collector (TC) and narrated the incident and said that probably thetheft was committed while she was sleeping which was noticed only on 27/3/2007 when she woke up. The TC informed her to lodgeFIR with the Railway Police at Nagpur. Therefore she lodgedFIR with Railway Police at Nagpur and informed that the loss sustained cannot be valued in the terms of money as the baggage which was stolen in addition to the clothing worth Rs. 10,000/- to 12,000/-,cash of Rs. 6,000/- and watch worth Rs. 5,500/- contained two photo albums of her grand children which were invaluable for her. It is further contended by the complainant that she is a consumer as she has paid for the ticket and the OP is rendering service by way of railway journeyand it is the duty of the OP to ensure secured an safe journey and it had committed deficiency in service by not rendering proper service and theft was committed due toits deficiency. Alleging accordingly, she filed a Consumer complaint and sought for damages of Rs. 25,000/- towards deficiency in service andRs. 50,000/-as compensation towardsexpense incurred and Rs. 50,000/- as compensation for mental and physical harassment.

1. The OP resisted the complaint by filing its written version and denied all the adverse allegations of the complainant. The OP challenged the territorial jurisdiction of the District Forum and further specifically submitted that under Section 100 of the Railway Act 1989, the Railway administration is not responsible for any loss, destruction, damage, deterioration or non delivery of any luggage unless the railway servant has booked the luggage and given receipt therefor, and in 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. The duty to take care of luggage is with the passenger herself and the OP has not adopted  any negligence or misconduct in rendering   service and therefore the complaint deserves to be dismissed.
2. The Forum after hearing both the sides and perusing the documents on record, partly allowed the complaint as aforesaid. The Forum has specifically held that although the complainant has not brought  on record any evidence in respect of the loss caused. However when a person undertakes journey it normally carries necessary clothing and things and therefore on the basis of preponderance  of probability, the Forum granted Rs. 15,000/- towards damage incurred and Rs. 5,000/- as compensation for mental and physical harassment and Rs. 2,000/- towards cost of proceedings.
3. Being aggrieved by the impugned order, the OP Divisional Railway Manager, Central Railway, Nagpur has preferred this appeal on the ground that Section 100 of Railway Act 1989, renders the railway administration is not responsible for loss, destruction, damage etc. in absence of the luggage being booked with the Railway servant for which the railway servant is given receipt and secondly in absence of any evidence of negligence or misconduct on the part of the Railway Administration while rendering service, the impugned order cannot sustain in law.
4. We heard counsel for both the sides and perused the written notes of arguments filed by both the parties and copy of the complaint, written version and authorities relied upon by both the parties. 
5. We perused Section 100 of the Railway Act which reads as under.

“Responsibilities 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 charged, unlessit 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.”

We also perused the copy of the complaint and find that it is neither the case of complainant that the luggage was booked with the Railway servant nor the destruction, damage or theft is caused due to any negligence or misconduct on its part. The appellant relies on the judgment passed by the National Commission in Revision petition No. 449 of 2010, Smt. Bimaldevi Natani  Vs.  Station Manager, Manmad Railway Station, Central Railway, Manmad, Maharashtra and another. We perused the said judgment and find that the National Commission has concurred with finding of the Maharashtra State Commission in appeal No. 1316 of 2009 thatin absence of any lapse or negligence on the part of the Railway Administration being proved the said authority cannot be held responsible for any loss incurred by the Consumer. In the instant case also theft due to negligence on the part of Railways is not proved and hence it is not responsible to compensate the loss of the respondent. The other authorities relied upon by the appellant are judgment passed on revision petition No. 2182 of 2010, Divisional Railway Manager  Vs.  Ashok Kumar and judgment of the Apex Court passed in Special Leave to appeal (Civil No. 34738-39/2012  Vijay Kumar Jain   Vs. Union of India. The ratio laid down in the aforesaid judgment are not applicable in the case in hand as the facts are different.

1. The respondent has relied on  the authorities reported in

1. I (1991) CPJ 10(NC)

General Manager, Southern Railways & Others/ Anand Prasad Sinha & Others

It is held that  passenger travelling by train on the payment of the stipulated fare charged for the ticket are ‘ Consumers’ and the facilities of transportation by Railway provided by Railway Administration is a ‘service’ rendered for consideration and as defined under the Act.

1. I (2004) CPJ 114 (NC)

Southern Eastern Railway Vs. Bharati Arora

 In that case, Suitcase was  stolen by miscreants from reserved compartment—Chain was not working and hence train could not be stopped. The Forum held Railways deficient  in services as no hooks provided for safety of luggage. Passengers and property are  not protected in reserved compartment.

1. IV(2005) CPJ 57 (NC)

GM Southern Railway  Vs. R.V. Kumar & ant.

Theft was occured in reserved compartment—Negligence  on part of railway administration, Railway Police and Railway Protection Force was proved—Contention raised was that Railway is not responsible for any loss of personal luggage, unless it is handed over to Railways— The said Contention not acceptable—Passenger travelling by train entitled to carry luggage within permissible limits—No question of entrusting such luggage to Railway and getting a receipt thereof— It is held that Railways is responsible for any loss, provided negligence on part of Railways or its servants is  proved. 

The authorities relied upon by the respondent are of no support to the respondent as the facts in those cases and the facts in the case in hands are not similar as in the instant case neither negligence on the part of Railway is alleged nor proved by respondent.

1.  For the foregoing reason we find that the impugned order is improper, illegal and cannot be sustained in law. In the result we pass the following order.
2.  

1. The appeal is allowed
2. Impugned order dated 11/08/2009  is quashed and set aside.
3. The Consumer complaint bearing No.185 of 2009  is dismissed.
4. In the peculiar facts and circumstances of the case, no order as to cost.
5. Copies of order be furnished to both the parties, free of cost.