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, 2 and 3, feeling aggrieved by an order dated 23/07/2014 passed by majority by learned President and one Member of the District Consumer Forum, Nagpur by which the consumer complaint No.759/2011 has been partly allowed.
2. The case of the original complainant Nos.1 and 2/respondent Nos.1 and 2 herein as set out by them in consumer complaint, in brief is as under.
a) The respondent No.1 is the wife of respondent No.2. They had purchased railway tickets for themselves and for members of their group from railway station of Nagpur for under taking journey from Nagpur to Patna and then for return journey from Patna to Nagpur. The said tickets were of reserved sleeper compartment. They went from Nagpur to Patna and after attending the marriage of their daughter, they were returning alongwith other members of their group on 13/12/2009 by train called as Sanghamitra Express.
b) Both respondents and members of their group boarded the said train on 13/12/2009 at 7 p.m. at Patna railway station and they occupied their berth of sleeper reserved class. However many other unauthorized persons boarded the said compartment who were not holding railway tickets for traveling by the said reserved sleeper compartment. No police personal or TTE was found there. Therefore the respondents could not contact them to request them to remove the said unauthorized persons from that compartment. The respondents requested those unauthorized persons to leave that compartment, but they did not listen to their request and continued journey by the said train. Thereafter T.C. came to that compartment after the train was proceeded ahead. At that time the T.C. did not ask those unauthorized persons to go out from the said compartment.
c) Thereafter at about 10 p.m. the respondents and members of their group put the chain to their respective bags and attached the chain to the berth and put the locks to it and then all of them sleept. However at 3 a.m. when train was stopped at Allahabad railway station, the respondents woke up and found that their gold and silver ornaments, mobile hand set, ATM Card, two cheque books and ladies purse, total worth Rs.5,00,000/- were stolen away from their bag. At that time there was no TTE in that compartment to lodge the report of incident with him. Hence the complainants went to the railway guard, but he did not take their report. Hence when the train was proceeded ahead, the respondents pulled its chain three times and stopped the train but no action was taken about the theft of the gold and silver ornaments and the articles. Every time the chain was disconnected and train proceeded ahead. Moreover the way of proceeding through one bogie to another bogie was also closed and that no railway officer took the report of the respondents at Allahabad railway station also.
d) When the train reached at Katni railway station the respondents approached the railway officer. But he did not take their report. Thereafter when train reached at Jabalpur railway station, the respondents approached the Station Master of Jabalpur railway station. He asked the respondents to lodge the report at Itarasi railway station. When the train reached at Itarasi railway station, the railway police came to the bogie/compartment in which the respondents were traveling, they took the report and told the respondents that investigation will be made and respondents were asked to continue their journey. The police officer also said that if the thief is detected then said information will be given to the respondents. Hence the respondents completed their journey. They then sent a letter to Itarasi railway police station on 05/02/2010 but they got no response from the said railway police station.
e) Hence the respondents filed consumer complaint against the appellants claiming from them total compensation of Rs.5,00,000/- with interest towards the loss of their ornaments and the articles and further claiming compensation of Rs.10,00,000/- for physical and mental harassment and advocate fees of Rs.3,000/- and litigation cost of Rs.10,000/-.
3. The appellant No.1 appeared before the Forum below and filed reply and thereby resisted the complaint. It raised preliminary objection that the complaint is not maintainable for the loss caused during railway journey, as per provisions of law. Moreover the Forum below has no territorial jurisdiction to entertain the complaint as cause of action arose at Allahabad railway station. It is denied that some unauthorized persons had boarded the compartment/oach by which the respondents were traveling. It is also denied that the respondents had pulled the chain four times and thereby stopped the train. It is also denied that the report of the respondents was not taken by railway authority. It is the case of appellant No.1 that the TTE and police officers always remain present in the train and they are always very careful and cautious. They kept supervision over the railway bogie/compartment properly and hence there is no question of entering in to railway bogie by unauthorized persons. The Allahabad railway station falls under the Central Railway limits and hence the respondent No.1 has got no concern with the Allahabad railway station. The complaint is therefore liable to be dismissed.
4. The appellant No.2 also filed its independent reply and thereby resisted the complaint and it denied its responsibility. It also raised a defence that no liability can be fastened on the railway authorities for the loss of the goods or articles of the passengers and it was the responsibility of the respondent to protect their own articles and valuable ornaments. All the allegations about entering in to unauthorized persons in the railway bogie are denied. It is admitted that respondents had caused the train to stop at Allahabad railway station from 3 a.m. to 3.50 a.m. and that thereafter when the train was proceeded ahead, there was one incident of chain puling at 4 a.m. However it is the case of appellant No.2 that the incident of theft has been concocted by respondents and he had given different statements about the value of the stolen articles and the ornaments at different times. The complaint is also barred as per provision of section 100 of Railway Act. Hence it was prayed by the appellant No.2 that the complaint may be dismissed.
5. Initially the appellant No.2 failed to appear before the Forum below after service of notice. However subsequently it appeared and as per its application, permission was granted to file reply to the complaint subject to payment of cost of Rs.1,000/-. However the respondent No.3 later on filed an application on 23/04/2012 for deleting its name. The Forum held that the said application be heard and decided alongwith the complaint.
6. The District Forum below considered evidence of both parties and then passed the impugned order. The Forum also considered the various authorities and decisions cited by both the parties. The Forum also considered the provisions of section 100 of the Railway Act, 1989. The Forum concluded after the aforesaid consideration of legal and factual aspects under impugned order that the incident of theft is genuine and said incident of theft had occurred as some unauthorized persons had entered in to the bogie/compartment by which the respondents were traveling and railway authority did not remove them out side the said bogie/compartment and therefore the appellants rendered deficient service to the respondents. The Forum also held that the provisions of section 100 of Railways Act is of no assistance to the appellants to avoid their responsibility when the incident of theft took place due to their own negligence. Hence the Forum by majority decision, directed the appellants to pay the respondents Rs.2,20,000/- towards the loss sustained by them due to the theft of their cash, ornaments, mobile hand-set and purse. The Forum also directed the appellants to pay the respondents Rs.2,20,000/- with interest @ 9% p.a. from the date of the complaint till its realization by them and also to pay them further compensation of Rs.10,000/- for physical and mental harassment and litigation cost of Rs.5000/-. The learned single Member of the said Forum passed dissenting order and thereby held that the complainant is not entitled to any relief.
7. Thus feeling aggrieved by the decision of Forum passed by majority, the original opposite party Nos.1, 2 and 3 have filed this appeal. We have heard advocate Mr.S.N.Abhyankar appearing for the appellant. The respondents have not appeared for final hearing in this appeal. We have also perused the entire record and proceedings of the appeal.
8. The learned advocate of the appellant made submission in brief as under.
The case of the respondents can not be believed as set out in the complaint. The respondents have not produced documents to show that their ornaments and articles worth Rs.5,00,000/- were stolen away. As no receipts of the same were produce before the Forum. The railway authority was examined by the appellants by filing affidavit and his cross examination was conducted by the respondents and nothing has come on record in his cross examination to disbelieve his evidence. The said railway authority had checked the railway tickets of the passengers and after checking he had permitted them to travel by that bogie. There were no unauthorized passengers in the said bogie. It was the duty of respondents to book their luggage as per section 100 of the Railway Act and as it was not booked with the appellants, the Forum erred in partly allowing the complaint. Moreover the respondents cannot allege that the TTI was not present in the bogie when respondents admitted that the tickets of the passengers were checked by the TTE. Moreover they have not stated as to where their luggage was kept and they have given different value of the stolen property in the FIR and in the original application. The Forum in the absence of any document erred in directing the appellants to pay Rs.2,20,000/- with interest, compensation and cost. The learned single Member of the Forum rightly dismissed the complaint by passing the dissenting order. Hence the impugned order may be set aside.
The learned advocate of the appellant relied on the decisions in the following cases.
- Vijay Kumar Jain……V/s……Union of India and anothers, in Civil Appeal No.34738 and 34739/2012, decided by Hon’ble Supreme Court as per order dated 02/07/2013. In that case the Hon’ble Supreme Court held that as per the petitioners’ own case, he had been allotted berth No.41 in sleeper coach S-2 and he had voluntarily placed attachi case on berth No.43. Therefore it is held by the Hon’ble Supreme Court that the railway can not be held responsible for the alleged loss of attachi case by way of theft or otherwise also there was no valid ground to entertain to his challenge to the orders passed by District Forum, State Commission and the National Commission and therefore Special Leave Petition was dismissed.
- Chief Station Manager and others……V/s……Smt.Mamita Agrawal, in Writ Petition No.590/2015 decided by Hon’ble National Commission as per order dated 12/09/2017. The Hon’ble National Commission considered the provisions of Section 100 of Railway Act, 1989 and held that it should be proved that such loss/damage etc. was due to negligence or misconduct on the part of servants of the Railway Administration. In that case no booking was made with the railways and there was no negligence attributable to any specific employee of the railway. Therefore the Hon’ble National Commission dismissed the appeal.
- Sau.Shefali w/o Sanjay Niranje, in first appeal No.A/223/2010, decided by this Circuit Bench as per order dated 19/12/2017. In that case, the ornaments were not booked by the appellant with railway administration and it was not proved by cogent evidence that the said ornaments were stolen away due to negligence or misconduct on the part of railway administration or on the part of its any servant. Hence it was held by this Commission that no deficiency in service can be attributed to the respondent for loss of ornaments belonging to the appellant as occurred during railway journey.
- Chief Commercial Manager and others……V/s..….. Shri Omprakash Govindramji Saraf, in first appeal No.A/15/585 decided by this circuit bench as per order dated 20/06/2018. In that case it was found by this Commission that the complaint filed under section 12 of Consumer Protection Act did not show that some unauthorized persons were seen in the railway coach, in which the respondent alongwith his wife and grand son were traveling. Moreover there was no averment in the said consumer complaint that the attendant of the said coach had kept open the door of the compartment and due to that reason the theft of the suitcase took place. The said suitcase was not booked with railway administration by the respondent. Hence it was observed in the said case that in the absence of any evidence it can not be presumed that some unauthorized person had entered in to the compartment and committed theft of suitcase. Thus there was no evidence of negligence or misconduct on the part of railway administration or its servant. Thus this Commission concluded in that order that the theft did not take place due to negligence on the part railway administration or its servant and hence no deficiency in service can be attributed to railway administration, hence the complaint was dismissed.
9. In the instant case, the respondents not only had pulled the chain of the train repeatedly to stop the train and to make grievance about theft, but also in the consumer complaint filed before the Forum, they have made specific averments in the consumer complaint that some unauthorized persons had entered in to the railway compartment by which they and their members of the group were traveling, but the TTE did not drive out them from that compartment. No doubt the affidavit of one of the TTE namely Jamal Afroz Khan was produced before the Forum, but his said affidavit has been rightly disbelieved by the Forum on the ground that he did not state that the chain of the said train was pulled during his duty. His presence in the compartment was only to the extent of checking of the tickets but his presence thereafter in the said compartment has been rightly disbelieved by the Forum below under the various facts and circumstances discussed in the impugned order.
10. The respondents had tried their level best to lodge the report by pulling the chain of the train four times. But their grievance was not looked in to by any of the railway authority or by the railway police. This shows total negligence on the part of the railway authority and the railway police. Moreover we also find that Section 100 of the Railway Act specifically provides that Railway Administration can be held responsible for the loss of any luggage of railway passengers only when the said luggage is booked by railway servant and receipt of the same is issued or when the loss of luggage has been caused due to negligence or misconduct by Railway Administration or on the part of its servant.
11. In the instant case the respondents had seen unauthorized persons traveling by the same bogie by which they were traveling and no cognizance of their grievance about the same was taken by any railway authority. Even after the train was stopped by the respondents by pulling its chain for four times, no response was given to the respondents by any railway authority or by railway police. This shows the total negligence and so also misconduct on the part of Railway Administration and its servant.
12. The Forum below has given proper reasons in the impugned order about aforesaid negligent act of the Railway Administration. Moreover the Forum below under the impugned order has rightly considered all the decisions cited by both the parties before it.
13. The impugned order also shows (on page No.10) the duty list issued by the Railway Ministry regarding the duty of TTE. As per the said duty list it was the responsibility of TTE to prevent the unauthorized persons from entering in to the coach/bogie and to insured that the door of the coach are latched when the train was on the move and open them for the passengers as and when required for entraining/detraining of authorized persons and he shall be vigilant during night time and he shall insure that intruders, beggers, hawkers and unauthorized persons do not enter the coach. Moreover TTE shall carry blank FIR form for making them available to the passengers in the case of incident of theft.
14. The learned Forum in the impugned order relied on the decision of the Hon’ble National Commission in the case of Union of India and others…..V/s……Sanjiv Dilsukharai Dave and another, reported in I(2003) CPJ 72 (NC). In that case the Hon’ble National Commission observed about the aforesaid duties of TTE and held that when the TTI has failed in performance of his duties, which lead to the incident of theft, the arguments cannot be accepted that the rule nowhere provides that there should be a TTE for each sleeper coach.
15. Moreover the Hon’ble National Commission following the said decision in the case of Union of India and others……V/s….. J.S.Kunwar, reported in I(2010) CPJ 90 (NC) has held that when the attachi was lost in the reserved compartment and when the complainant made enough effort with the Train Escort and the TTE to register the FIR and when he filed the FIR after reaching at Dehradun Railway Station, the mere averment made by railway authority that the attachi must have been stolen in the middle of the night and the complainant is at fault by not putting his luggage under the lock and the key, the said defence of the petitioner cannot be accepted and there is clear deficiency in service on the part of the petitioner in allowing the unauthorized persons to enter the reserved compartment and stealing the attachi of the respondent.
16. Moreover the learned Forum in the impugned order also followed the decision of Hon’ble Supreme court in the case of Sumati devi M.Dhanwatay..…..V/s…..Union of India and others, reported in AIR 2004 SC 2363. In that case also some unauthorized persons who had entered the bogie had assaulted the complainant and other passengers and took away their ornaments and the cash from their respective bags and that the railway administration did not take any action to control the unauthorized persons. Therefore the complaint was allowed and the said order was confirmed by Hon’ble Supreme Court.
17. We thus find that the ratio of the said decisions is rightly applied by the learned Forum to the facts and circumstances of present case and rightly come to the conclusion that as there was total negligence on the part of the appellant which caused the theft of the ornaments, cash and articles of the respondents, the appellants are liable to make good the loss of respondents to the extent of Rs.2,20,000/- with interest, compensation and cost. All the aforesaid decisions relied on by learned advocate of the appellants are not applicable to the present case as in those cases there no negligence on the part of the railway administration or its servant was proved. Whereas in the instant case the negligence on the part of railway administration and its servant is proved as observed above which caused the theft alleged by the respondent. Hence the said decisions relied on by the appellants advocate are of no assistance to the appellant. We therefore hold that there no merit in this appeal and it deserves to be dismissed.
//ORDER //
- The appeal is dismissed.
- No order as to costs in appeal.
- Copy of the order be furnished to both parties free of cost.
