Tamil Nadu

North Chennai

CC/89/2017

Ramkumar Garg, Suroj Garg - Complainant(s)

Versus

Southern Railways Rep by its General manager - Opp.Party(s)

Jayanthi, K.Shah

29 Jul 2022

ORDER

Complaint presented on :09.05.2017

Date of disposal            :29.07.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                           THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,   :MEMBER-II

 

C.C. No.89/2017

 

DATED FRIDAY THE 29^th  DAY OF JULY 2022

 

1).  Ramkumar Garg

2). Saroj Garg

      Both residing at No.159,

      Baracha Road Sangam Apt

      Flat No.414

      Kellys, Chennai-600 010                                                .…..Complainant

 

 

 ..Vs..

1. Southern Railways

Represented by its General Manager

Park Town, Chennai,

Tamilnadu-600 003.

 2)   Northern Railways

       Represented by its General manager,

       NDCR Building,

       State Entry Road, New Delhi.                                      …..Opposite Parties

 

 

Counsel for Complainant                          : M/s. Jayanthi K Shah

 

Counsel for  1^st opposite party                    : M/s. Muthamilraja.

 

Counsel for 2^nd opposite party                    : Ex-parte.

 

 

ORDER

 THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA.,   :MEMBER-II

 

This complaint has been filed by the complainants against the 1^st and 2^ndopposite parties under section 12 of the Consumer Protection Act, 1986 prays to direct the opposite parties to pay a sum of Rs. 15,00,000/- towards the jewelry and cash lost, Rs. 50,000/- towards cost of medical charges, Rs. 45,000/- towards further travel expenses, Rs. 1,50,000/- towards compensation, Rs.1,50,000/- towards mental agony and distress suffered and Rs.50,000/- towards cost of proceedings of complaint.

1.THE COMPLAINT IN BRIEF:

          The complainants state that after their daughter’s marriage they were set to return to Chennai and on 26.02.2015 when they were travelling by Tamilnadu Express Train No. 12622, II AC coach no. HA1, seat no. 07 and 09 and their bag containing gold ornaments and cash were fastened to the metal strap attached underneath the lower berth.  The Complaints further states when the train crossed Farah Station in the State of Utter Pradesh it appears that emergency chain was pulled and four masked men entered their coach and approached the 2^nd' Complainant who was sleeping and pointed knife and asked her to remove the jewels she was wearing and carrying.  The complainants states that the robbers after depriving the 2^nd complainant of all the jewels and they proceeded towards the luggage’s of complainants upon which the 2^nd complainant raised alarm hearing the spouse voice, the Ist complainant woke up from sleep and resisted the efforts made by the masked men and upon such resistance the masked men assaulted the Ist complainant with the sharp object on his forehead and decamped with all the cash and other gold articles from the luggage.  On seeing the Ist complainant in a pool of blood, 2^nd complainant went to the rescue of the Ist complainant and on seeing this, robbers started hitting the 2^nd complainant and pulled the chain.  When the train stopped, robbers got down and vanished from there with all the jewelry and cash worth Rs.15,00,000/-.  The complainants states that during the attack none of the co-passengers came to their help and even the TT Examiner, Coach attendant and RPF personnel were not present neither before nor after the incident.  The Ist complainant himself contacted the telephone number notified by the opposite party and finally the train was stopped at Agra where the TT Examiner, RPF, Station Master and Doctors had come to see the complainants and gave first aid treatment to complainants.  The doctors advised the complainants not to continue the journey in the same train since the injury were very deep and serious and therefore the complainants were rushed to Agra Government Hospital and where the complainants were treated.  The complainants on 27.02.2015 went back to Delhi by train and flew back to Chennai by flight on same day resulting the total travel expenses of Rs.40,000/-.  On account of above incident, the Ist complainant confined to bed and resulted in huge business loss.  The complaints preferred complaints with the opposite parties and an FIR was lodged at Agra kent police station airing their grievances and loss but all the efforts were in vain.  Complaints were also raised to Ministry of Railways and Indian Railways.  Hence this complaint.

2.WRITTEN VERSION FILED BY THE 1^st OPPOSITE PARTY IN BRIEF:

The 1^st opposite party states that they are one of the several zonal railways constituted by Central Government and the general superintendence of zonal Southern Railway Administration is vested in General Manager, who is the principal Head.  Similarly the second opposite party is also a zonal Railway headquartered in New Delhi and the General Manager is the principal head of Northern Railway Administration.  The opposite parties states that the consumer complaint is not maintainable either in law or on facts.  The opposite parties denies all the averments made in the complaint excepting those that are specifically admitted and puts the complainants to strict proof of all the averments not so admitted.  The opposite parties state that the present consumer complaint is barred by limitation as provided as Section 24A of the Act since the complaint had been filed on 09.05.2017 while the alleged theft of the complainant’s jewel and cash had taken place on 27.02.2015 and hence the consumer complaint is liable to be rejected.  The opposite parties state that pursuant to the alleged theft the complainants had lodged a police complaint with Agra Cantt Station and it had been subsequently transferred to Government Railway Police, Mathura in Uttar Pradesh.  As per newspaper cutting submitted by complainants, the District Police and GRP have initiated a probe in the theft case but the complainants have not furnished any information about the outcome of police investigation.  Thus the proper party for redressing the complainant’s grievances is the GRP, Mathura. The complainants have not attributed any negligence or deficiency in service on the opposite parties other than merely stating that the TTE or coach attendant were not available in the coach at the time of alleged incident.  The complainants have not joined GRP, Mathura and North Central Railway under whose jurisdiction the alleged incident had occurred to verify the allegations.  The opposite parties further state that the alleged robbery comes under the definition of “untoward incident” as laid down under Section 123 (C) (1) (ii) of the Railway Act, 1989 i.e. “the making of a violent attack or the commission of robbery or dacoity” and the compensation on account of untoward incidents is dealt under Section 124A which says “When in the course of working a railway, untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to (a) suicide or attempted suicide by him; (b) self-inflicted injury”.  The opposite parties’ states that Section 125 of the Railway Act, 1989 deals with application for compensation and as per that an application for compensation may be made by the person who has sustained the injury or suffered any loss or by an agent or by guardian, if minor and where death has resulted from the accident (or the untoward incident), by any dependent of the deceased or guardian if dependent is a minor.  The opposite parties state that the Central Government had under section 3 of the Railway Claims Tribunal Act 1987, by notification established a claims tribunal known as Railway Claims Tribunal to exercise the jurisdiction, powers and authority conferred on it by or under this act.  The opposite parties state that the complainants ought to have approached the Railway Claims Tribunal for claiming compensation for the injury and loss due to alleged robbery in the train. The opposite parties finally state that the consumer complaint is for limited purpose of compensating the alleged loss of the jewels and cash and without waiting for the outcome of the investigation by police in Mathura, Uttar Pradesh.  No proof has been filed for the jewels and cash carried by them.  The complainants had lodged a complaint with GRP, Agra Cantt and it had been transferred to GRP, Mathura.  As per complainants, all their efforts were in vain and their grievances is against the GRP, which is the state police wing responsible for registration, investigation and prosecution of offences relating to maintenance of order in railway premises.  The opposite parties do not have any connection with the policing work of GRP and the opposite parties have been wrongly joined by complainants and hence the claim against opposite parties is liable to be rejected.  The opposite parties state that as per Section 100 of Railway Act, 1989 the 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 thereof.  The alleged jewels and cash were carried by the complainants in their charge.  Hence the opposite parties prayed for dismissal of complainant. 

3. POINTS FOR CONSIDERATION:

1. Whether there is any negligence or deficiency in service on the part opposite party as alleged in the complaint?

2. Whether the complainant is entitled for the reliefs prayed in the complaint.     If, so to what extent?

The complainants filed proof affidavit and Ex.A1 to A11 were marked on his side and written arguments.  The 1^st opposite party filed written version, proof affidavit and written arguments and no document was marked on the opposite parties side.

4. POINT NO :1 :-

          The complainants states that after their daughter’s marriage, on 26.02.2015 they were returning to Chennai by Tamilnadu Express Train No. 12622, II AC coach no. HA1, seat no. 07 and 09 and the ticket is marked as Ex.  A2 and their bag containing gold ornaments and cash were fastened to the metal strap attached underneath the lower berth.  The Complaints further states when the train crossed Farah Station in the State of Utter Pradesh it appears that emergency chain was pulled and four masked men entered their coach and approached the 2^nd' Complainant who was sleeping them and pointed knife and asked her to remove the jewels she was wearing and carrying.  The complainants states that the robbers after depriving the 2^nd complainant of all the jewels and they proceeded towards the luggage’s of complainants upon which the 2^nd complainant raised alarm hearing the spouse voice, the Ist complainant woke up from sleep and resisted the efforts made by the masked men upon such resistance the masked men assaulted the Ist complainant with the sharp object on his forehead and decamped with all the cash and other gold articles from the luggage.  On seeing the Ist complainant in a pool of blood, 2^nd complainant went to the rescue of the Ist complainant and on seeing this, robbers started hitting the 2^nd complainant and pulled the chain.  When the train stopped, robbers got down and vanished from there with all the jewellery and cash worth Rs.15,00,000/-.  The complainants’ states that during the attack none of the co-passengers came to their help and even the TT Examiner, Coach attendant and RPF personnel were not present neither before nor after the incident.  The Ist complainant himself contacted the telephone number notified by the opposite party and finally the train was stopped at Agra where the TT Examiner, RPF, Station Master and Doctors had come to see the complainants and gave first aid treatment to complainants.  The doctors advised the complainants not to continue the journey in the same train since the injury were very deep and serious and therefore the complainants were rushed to Agra Government Hospital and where the complainants were treated.  The hospital report is marked as Ex.A4.  The complainants on 27.02.2015 went back to Delhi by train and flew back to Chennai by flight on same day resulting the total travel expenses of Rs.40,000/-.  Air Ticket is marked as Ex.A5.  On account of above incident, the Ist complainant confined to bed and resulted in huge business loss.  The complaints preferred complaints with the opposite parties and an FIR was lodged at Agra kent police station airing their grievances and loss but all the efforts were in  vain.  The FIR is marked as Ex.A3.  The complaint raised to Ministry of Railways is marked as Ex. A10.  The complaint raised to Indian Railways is marked as Ex. A11.  The press releases by various news newspapers are marked as Ex.A6, A7, A8 and A9. 

The 1^st opposite party is one of the several zonal railways constituted by Central Government and the general superintendence of zonal Southern Railway Administration is vested in General Manager, who is the principal Head.  Similarly, the second opposite party is also a zonal Railway headquartered in New Delhi and the General Manager is the principal head of Northern Railway Administration. The opposite parties state that the present consumer complaint is barred by limitation as provided as Section 24A of the Act since the complaint had been filed on 09.05.2017 while the alleged theft of the complainant’s jewel and cash had taken place on 27.02.2015 and hence the consumer complaint is liable to be rejected. But it is found that the complaint is filed with petition to condone the delay and then the complaint was taken on file and hence the complaint is not barred by limitation.  The opposite parties state that pursuant to the alleged theft the complainants had lodged a police complaint with Agra Cantt Station and it had been subsequently transferred to Government Railway Police, Mathura in Uttar Pradesh.  As per newspaper cutting submitted by complainants the District Police and GRP have initiated a probe in the theft case but the complainants have not furnished any information about the outcome of police investigation.  Thus, the proper party for redressing the complainants grievances is the GRP, Mathura. The complainants have not attributed any negligence or deficiency in service on the opposite parties other than merely stating that the TTE or coach attendant were not available in the coach at the time of alleged incident.  The complainants have not joined GRP, Mathura and North Central Railway under whose jurisdiction the alleged incident had occurred to verify the allegations. Hence there is much force in the argument advanced by the opposite parties that the complaint is bad for non-joinder of GRP as a necessary party to the complaint. The opposite parties further stated that the alleged robbery comes under the definition of “untoward incident” as laid down under Section 123 (C) (1) (ii) of the Railway Act, 1989 i.e. “the making of a violent attack or the commission of robbery or dacoity” and the compensation on account of untoward incidents is dealt under Section 124A which says “When in the course of working railway, untoward incident occurs, then whether or not there has not been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger.”   The opposite parties states that Section 125 of the Railway Act, 1989 deals with application for compensation and as per that an application for compensation may be made by the person who has sustained the injury or suffered any loss.  The opposite parties state that the Central Government had under section 3 of the Railway Claims Tribunal Act 1987, by notification established a claims tribunal known as Railway Claims Tribunal to exercise the jurisdiction, powers and authority conferred on it by or under this act and the complainants ought to have approached the Railway Claims Tribunal for claiming compensation for the injury and loss due to alleged robbery in the train. The opposite parties finally state that the consumer complaint is for limited purpose of compensating the alleged loss of the jewels and cash and without waiting for the outcome of the investigation by police in Mathura, Uttar Pradesh.  No proof has been filed for the jewels and cash carried by them.  The complainants had lodged a complaint with GRP, Agro Cantt and it had been transferred to GRP, Mathura.  As per complainants, all their efforts were in vain and their grievances is against the GRP, which is the state police wing responsible for registration, investigation and prosecution of offences relating to maintenance of order in railway premises.  The opposite parties contended that they do not have any connection with the policing work of GRP and they have been wrongly joined by complainants.  The opposite parties states that as per Section 100 of Railway Act, 1989 the 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 thereof.  The alleged jewels and cash were carried by the complainants in their charge.  Hence the opposite parties prayed for dismissal of complainant. 

There is no dispute that the complainants had travelled from Delhi to Chennai on 26.02.2015 by Tamilnadu Express Train No. 12622.  The complainants contended that while crossing Farah station it appears that chain was pulled and four masked men boarded the train and hit the complainants and took away the jewels and cash worth Rs.15,00,000/- and again the chain was pulled, and the robbers vanished.  From the Ex. A6 to A9 it is also confirmed from the newspaper cuttings filed by complainants that the incident had happened. It is observed from the Ex.A8 the newspaper cutting of Dinakaran, complainants informed the press that the robbers had looted only from the complainants and not from any other passengers and hence they doubted that robbers particularly followed them to loot jewel and cash and they finally gave a complaint at Agra.  The contention of the complainants was that TT Examiner, Coach attendance or RPF were present neither before nor after the incident.  Immediately after the incident the complainants contacted the railway authorities through phone and at Agra station the train was stopped.  The Station Master, TTE, RPF and Doctors attended the complainants and gave First Aid and doctors advised them not to continue travel in the same train.  As advised by the doctors they complainants went to Government Hospital for treatment.  It is inferred from the complaint that complainants assumed that robbers boarded the train by pulling chain and they were not sure how the train was stopped.  Robbery was a sudden incident which nobody expected and this particular incident happened at midnight and all the passengers were in deep sleep and unfortunately nobody including co-passengers failed to give any alert on hearing the noise of complainants to the authorities concerned.  It is only the complainants who gave the information and soon the authorities attended the complainants at Agra Station and rendered necessary assistance including First Aid. The complaint does not specifically state any deficiency in service on the part of railway authorities except by saying that TTE and RPF were present and nothing was done by them.   So, the  complainants  failed to prove negligence or deficiency in service on the part of opposite party.

The complainant’s prayed a sum of Rs.15,00,000/- from the opposite parties towards cost of jewelry and cash lost and Rs. 1,50,000/- towards compensation.  As per Ex.A3, an FIR has been lodged at Government Railway Police, Agra Cantt. Station on 27.02.2015 and subsequently transferred to Government Railway Police, Mathura in Uttar Pradesh.  The opposite parties in their written version contended that only Government Railway Police, which is a wing of the State Police and is responsible for registration, investigation and prosecution of offences relating to maintenance of order in railway premises.  As per Ex.A10 the complainants gave a complaint to Ministry of Railways vide Registration No. MORLY/E/2016/08134 which was received on 10 April 2016.  It is observed from the report that "police including Railway police is an assigned responsibility of respective state governments.  This  responsibility is discharged by them through District Police and Government Railway Police under the present constitutional scheme.  Ministry of Railways assists State Police and Government Railway Police through Railway Protection Force, which is a force of Ministry of Railway with limited powers in respect of passenger related offences.  This particular case directly comes under purview of UP State Administration or from the Government Railway Police, Mathura. The complainants failed to follow up with GRP regarding investigation of robbery and no report subsequent to FIR regarding arresting of accused and recovery of jewels and cash has been filed.    The opposite parties contended that as per Section 123 (C) (1) (ii) of the Railway Act, 1989 “the making of a violent attack or the commission of robbery or dacoity” is termed as Untoward incident.  Section of 124 A of Railway Act, compensation for untoward incident is payable only “when in the course of working a railway, untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured.”  As per section 124 A of Railway Act, 1989 the application for compensation may be made to the Claims Tribunal by the person who has sustained the injury or suffered any loss.  The opposite parties further contended that “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 therefore 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 its servants”.  The complainants admitted in the complaint that the jewels and cash were in their custody.  The case cited by learned counsel for the complainants in the judgement of National Commission in General Manager, South Central Railway & Ors. Vs Jagannath Mohan Shinde,Revision petition No. 3574 of 2007 has different facts.  In that case, the Petitioners/Opposite parties have committed negligence on their part.  Whereas in the present case, there is no negligence on the part of opposite parties.  The learned counsel for opposite parties has cited following decisions by Supreme Court of India and National Commission which are listed below.  In the said judgements, it was found that there was no negligence on the part of railways for theft of baggage for which compensation sought for.

1. Vijay Kumar Jain vs Union of India & Another, Special Leave Petition 34738-34739/2012 (SC)
2. Union of India & Another vs Lakshit Joshi, III(2018) CPJ 392 (NC)
3. Zonal Manager/General Manager, Bilaspur (C.C.) & Another vs Purushottam Mohta, I(2019) CPJ 335 (NC)

The facts of this case are similar to above said cases and hence the complainants are not entitled for loss and compensation claimed.

The complainants prayed a sum of Rs.50,000/- towards cost of medical charges for the treatment underwent at Agra Government Hospital.  The complainants in the complaint had admitted that doctors gave first aid at Agra Station itself and on doctor’s advise they have not proceeded their journey in the same train and they were rushed to Agra Government Hospital and treated for injuries.  As per Ex. A4 the complainants were treated at S.N. Medical College & Hospital, Agra and only treatment details and prescription were available.  No proof of amount spent for treatment filed by the complainants and thus they are not entitled for any cost towards medical charges.

The Complainants prayed a sum of Rs.45,000/- towards further travel expenses.  The complainants admitted in the complaint that on 27.02.2015 they went back to Delhi and from Delhi to Chennai travelled by flight.  The mode of returning to Chennai was their own decision and the opposite parties are not liable to pay the travel amount , in view of the fact that there was no deficiency in service on the part of the opposite party.  Point No.1 is answered accordingly.

9. Point. No.2:-

          Based on findings given to the Point.No.1 since there is no negligence or deficiency in service on the part of Opposite parties, the complainants are not entitled for Rs.15,00,000/- for the loss jewelry and cash, Rs. 50,000/- towards cost of medical charges for treatment, Rs. 45,000/- for further travel expenses, Rs.1,50,000/- towards compensation, Rs.1,50,000/- towards mental agony and Rs.50,000/- towards cost of proceedings.  Point no.2 answered accordingly.

          In the result, the complaint is dismissed. No costs.     

Dictated  by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 29^th day of  July 2022.

 

MEMBER – I                MEMBER – II                                 PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	15.02.2015	Complainants travelling train ticket from chennai to New Delhi
Ex.A2	26.02.2015	Complainants travelling train ticket from new delhi to chennai.
Ex.A3	27.02.2015	FIR report.
Ex.A4	27.02.2015	Hospital report/S.N. medical college & hospital and agra.
Ex.A5	27.02.2015	Complainants air ticket from new delhi to chennai.
Ex.A6	02.03.2015	Press released from The New Indian Express about the train robbery
Ex.A7	03.03.2015	Press released from Press Trust of India about the train robbery
Ex.A8	03.03.2015	Press released from Dinakaran about the train robbery.
Ex.A9		Press released from The Hindu about the train robbery.
Ex.A10	10.04.2016	Complaint raised to Ministry of Railways (Railway board) with Reg.No.MORLEY/E/2016/08314
Ex.A11		Indian Railways complaint raised in Indian Railway Web Portal with reference no. W/NR/DLI/000078857.

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY: -NIL-

 

MEMBER – I                MEMBER – II                                 PRESIDENT