(Per Shri Narendra Kawde, Hon’ble Member) (1) This appeal has been directed against the order dated 12/01/2005 passed in Consumer Complaint No.246/2002 (Sou.Anagha Prasanna Valimbe Vs. Divisional Railway Manager, Central Railway, Solapur) by District Consumer Disputes Redressal Forum, Solapur, thereby directing the appellant, Railway Authorities to pay an amount of `1,34,500/- with 9% p.a. interest to the original complainant/present respondent with `500/- as costs of litigation. Aggrieved and dissatisfied with the impugned order, the original opponent/appellant has preferred this appeal on the ground that the complainant/respondent while traveling by railway from Solapur to Pune on 22/05/1998 did not hand over the luggage and obtain the receipt and therefore Railway Administration cannot be held responsible for alleged theft of ornaments reported to have taken place while traveling and no deficiency or negligence in service can be attributed to the appellant Railway Administration . However, the learned District Forum did not take into account the legal provision under the Railway Act, 1989 and passed the impugned order allowing the complaint of the complainant/respondent in the appeal with direction to pay the amount of `1,35,000/-. (2) This is an old matter placed on board for hearing and disposal. Accordingly, Registrar issued notice to both the parties. However, on the date of first hearing i.e. 17/08/2011 and on further hearings on 05/01/2012 and 03/04/2012, none of the parties were present, though a notice was published on Notice Board and internet, in addition to the notice sent by post earlier. Therefore, the matter was reserved for orders on merit. (3) Original complainant/respondent filed the complaint through Power of Attorney. Admittedly, the complainant traveled by the reserved second class on 25/12/1998 from Solapur to Pune. The luggage was kept under lock and key with her. After reaching to Pune Railway Station, the complainant traveled for her residence by Auto Rickshaw and with a view to verify the luggage in a proper order opened the travel bags with key in the night time by 11.30 p.m.-12.00 p.m. and found that the gold ornaments which were secured in the suitcases were missing. Therefore, the complaint was lodged with Railway Police on the next day i.e. 26/12/1998 at about 11.00 a.m. The Railway Police having made a search to trace out the gold ornaments; finally closed the matter though complaint found to be true as no search could be made and accordingly Railway Police issued such letter to the complainant. (4) Complainant subsequently filed consumer complaint before the District Forum alleging deficiency in service on the part of the appellant, Railway Administration as there was no Police bandobast or Ticket Collector to take care of the belongings of the passengers. The Railway Authorities took defence stating that as required under Sec.100 of the Railway Act, 1989, the complainant did not deposit the luggage with the Railway Administration and obtained the receipt of the valuables reportedly were being carried out by the complainant/respondent and therefore, the Railway Administration cannot be held responsible for losses, no negligence or misconduct can be attributed to them on this count. (5) The learned District Forum without considering the legal provisions and judgements & authorities submitted by Railway Authorities came to the erroneous conclusion that the Railway Administration has incurred deficiency stating that as no evidence had been adduced by them in respect of their contention and passed the impugned order allowing the consumer complaint. (6) We observe that District Forum failed to appreciate the legal submission of the appellant Railway Administration, citing the provisions of the enactment on oath as there is affidavit by Authorised Railway Officer supporting written version stating therein the responsibilities as to theft, loss, destruction of the luggage, U/s.100 of Railway Act, 1989 which reads as below :- “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 there for and in the 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.” (7) Moreover, reliance of appellant, Railway Administration on the judgment in Writ Petition No. 243/1992 passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi and this State Commission in Appeal No.603/2003 passed on 10/09/2003 in respect of admission of appeal against the Railway Administration on the similar ground dismissed the complaint, has not been appreciated and ratio applied in the instant consumer complaint. There is no evidence led by the complainant/respondent to prove negligence on the part of the appellant which resulted into theft of ornaments of the complainant/respondent. (8) The complainant/respondent has not adduced any evidence to establish breach of that provision of Sec.100 of Railway Act, 1989. The suitcase reportedly with valuable ornaments was admittedly in the custody of the complainant while traveling and said luggage (suitcase) was opened only after reaching the home at Pune at the night time. Moreover, it is not stated anywhere that suitcase containing ornaments was under lock and key when it was opened after leaving Pune Railway Station and reaching residence by auto-rickshaw. The complaint of theft lodged with the Railway Police was closed and made final as ornaments were not traceable. In absence of any cognate evidence placed on record by the original complainant/respondent, the appellant Railway Administration shall not be held responsible for negligence or rendering deficient service to provide security/protection to the luggage in the custody of the passenger, though traveling against reserved ticket. The learned District Forum erred in holding deficiency in service on the part of the appellant, Railway Administration without taking into account specific legal provision embodied in the Railway Act, 1989, which needed no additional evidence to establish authenticity of such provision which is binding on by the passengers and railway administration as well. In the circumstances and in view of legal position explained above, the complainant/respondent failed to establish negligence leading to deficiency in service on the part of appellant, railway administration. Impugned order, therefore, required to be quashed and set aside. In the result complainant does not survive. We hold accordingly and pass the following order. ORDER (1) Appeal is allowed. Impugned order dated 12/01/2005 is quashed and set aside. In the result consumer complaint No.246/2002 stands dismissed. (2) No order as to costs. (3) Inform the parties accordingly. Pronounced on 18th June, 2012. |
