IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

                     Thursday the 17th  day of January, 2019

                               Filed on 29.12.2017

Present

1. Sri.E.M. Muhammed Ibrahim,B.A,LLM (President)

2.  Smt. Sheela Jacob, B.com,LLB (Member)

                                                  In

                                      CC/No.349/2017

                                                     Between

Complainant:-                                                           Opposite parties:-

Adv. T.K. Ajan                                           1.       The Station Superintendent

Power of Attorny Holder of                                 Southern Railway

Sri. Ayyappan                                                     Shornur – 679 121

Both are residing at Flat No.A.J.804                  

Mata Amritanandamayi Matt                     2.       The Divisional Manager

Amritapuri, Karunagappally                               Railway Divisional Office

Kollam – 690 546                                                          Thykkadu, Southern Railway

                                                                             Thiruvananthapuram – 695 014

                                                                             (By Adv. G. Premlal – for

                                                                               Opposite parties 1 and 2)

Kottayam – 686 001

Office of the ASC/RPF/PGT

Railway Division

Palakkadu – 678 009

O R D E R

SRI.E.M. MUHAMMED IBRAHIM (PRESIDENT)

          This is case based on a consumer complaint filed against Southern Railway and its officers alleging  negligence and deficiency in service on  their part and also claiming compensation to the tune to Rs. 90,000/- from the opposite parties.  The original complainant  Sri. A. Ayappan  is an M tech Student  who was travelling from Kayamkulam  to Shornur in Parasuram Express train on 5/6/2017.  The complaint has been filed by Adv. TK Ajan who is the father and Power of Attorney Holder of the said Ayappan. It is alleged that when the train was running between Changanasery and Kottayam,due to a sudden jerk of the train the mobile phone of the said Ayyappan slipped from his lap and fell into a broken hole of the sunmica side panel which was very close to the seat at thy level.    The seat was a window side seat.   The said passenger was listening music by using ear phone.  When the mobile phone slipped off from his lap and the ear phone was disconnect but music was still on for 5 to 10 minutes in the running train.  But  the mobile phone was not visible.  He attempted to  take it out by putting his hand into the broken hole up-to shoulder level aiming  the music point.  He did not call on his mobile as it was in Aeroplane mode while he was hearing the music with the help of earphone.  He tried with both hands several times and in the process both hands got very badly injured in fingers, palm and both the shoulders.  This happened approximately between 9.30 and 10 am  After trying for some time, he telephoned the complainant  with the help of a co-passenger.  Thereafter, he informed the matter to  the two ticket examiners.  The first ticket examiner gave him a vague  reply directing the said Ayyappan to contact some technician.  The second ticket examiner put his hand inside the hole and tried but could not succeed.  Incidentally,  there was another ticket examiner who was watching  what has happening.  When he was  told about the loss of mobile, he made a comment and went on by saying  that losing a mobile  is losing life.  On the same day and next day,  I made phone call to the 2 sims of the lost mobile but there was no response(Sim 1 BSNL +91 9497599915, Sim 2 JIO +917907465033).   The complainant has been practicing as an Advocate  in Kollam Courts as well as in the High Court of Kerala at Ernakulam and when his son Ayyappan  himself was   informed the matter at Ernakulam.  Thereafter, On the same day  the complainant made telephone call to the Railway Police using Helpline and informed about  the incident at 12.43 PM through his mobile No.9446935462.  They assured the complainant  that they will try to locate it on the track at first instance and later in the hole also.  The complainant directed his son  Ayyappan to make a written complaint to Shornur Railway Station Master.  He did so when he got down at Shornur and also showed the injuries to the person in- charge of that office.  The station in-charge read the complaint letter, verified the injuries and signed with seal in the original and the copy.  Then the copy of the complaint was given to the said Ayyappan  with the seal and signature of the railway authority.    As there was no response from any of the Opposite party No.1 and 3, the complainant wrote a detailed letter to 2^nd opposite party Railway Divisional Manager, Thykkadu, Thiruvananthapuram with a copy to SI of Railway Police, Kottayam.   The SI of police enquired the matter and telephoned  me on 20/6/2017 and informed that the number of bogi in which the incident took place was Bogi No. 96613 of Parasuram Express.  He also informed that the broken part was seemed repaired with new mica by that time.

2.       Complainant received another letter from Palakkadu Railway Division claiming that they had conducted an enquiry in Eranadu Express alleging that Ayyappan travelled in Eranadu Express. A coach number as 95613 also shown in the letter which shows that they conducted an inspection and enquiry in a deferent train and coach contrary to actual journey and it’s reservation.  On 19.6.2017 at 11.58 AM there was  a call from mob:91974637412 to Ayyappan saying that it was from Railway and informed that a search was conducted but could not find the mobile phone.  On 06.07.2017 Ayyappan wrote a letter to 3^rd complainant  requesting him to refer this matter to cyber cell for tracing out the mobile and for collecting of details the above mentioned suspicious phone message but till now no further information received  .  Ayyappan lost his mobile in the said unrepaired broken hole of the bogi with all important matters related to his studies including the railway ticket message of that journey and thereby he became a traveller without ticket and continued the Journey with full fear and pain in both hands.  There is  utter negligence on the part of  railway authorities by keeping the broken hole very close to thy level of occupant’s seat by the Railway authorities which caused the loss of phone.  The loss of mobile was informed to Shornur Station within 4 hours where the train had a hault for more than ½ hour.  The 1^st opposite party could have examined the hole and recovered  the mobile in time or at least he could have informed the matter to the next terminal station.  No such attempt were done.  So there is total deficiency of service  on the part of all the opposite parties especially more on 1^st ,2^nd and 4^th opposite parties.

3.       All the Opposite parties  resisted the complainant by filing separate   versions raising more or less same  contentions which in short are as follows:-

          The petition is not maintainable either in law or in facts.  However the opposite parties would admit that a complaint filed by Sri. A.Ayyappan alleging the mobile phone was slipped from his lap and fell in to the broken side sheet of D3 coach on Parasuram Express on 5/6/2017 has been received and registered.   The 3^rd opposite party in his written version would admit  that he received a copy of the petition addressed to Divisional Manager  Railway Division office, Thykkad Thiruvananthapuram   from Adv. T.K Ajan(Father of Sri.Ayyapan) alleging that on 5/6/17 while his son Ayyappan was travelling in Parasuram Express train  the alleged incident happened between Changanaserry and Kottayam Railway station between 9.30 AM and 10AM.  R3 would further admit  that in the said complaint said Ayyappan  has alleged all the averments regarding his grievances  as stated in the complaint.  However on getting the petition he  informed the matter to the TTE  on duty in the train but could not get any positive reply.  Later the said Ayyappan filed petition before the Station Master  shornur on the same day. But there was also no response.  The 3^rd Op would further content that he has received information about the alleged incident  from Tk.Ajan on 16/6/17 through registered post.  On receiving the information he endorsed the same to ASI of police for enquiry after  conducting a thorough enquiry the matter was communicated to the Commercial Divisional Manager, Thiruvananthapuram.  For getting details of TTE on duty in the train and also obtained the bogy No. of the coach of that particular train and thereafter personally inspected the said coach of the train while it was travelling  in their limit and found  that the broken coach has been repaired. And 3^rd opposite party informed  the matter to the  complainant through letter dtd. 13/7/2017.  However the OP could not recover the mobile phone and broken portion of the train was repaired at somewhere  the train halted.  Ayyappan’s  mobile phone  lost in the train  while it was running and it  went to the broken hole of the sunmica panel   which was closed to the seat at thy level of the train.  The 3^rd Op has registered  the petition  No. 78/2017 and got enquired the matter through ASI  Rajendra Paniker under his control.  R3 would content that the Railway Police Kottayam has acted fully on the petition filed by the complainant, but it could not solve the problem through the office of the 3^rd opposite party. Hence the matter was informed to the railway authority immediately under intimation to the complainant.   Hence according to 3^rd opposite party, there is no deficiency in service or negligence on the part of the railway Police, Kottayam.   It is further contented that the Station  Master, Shornur forwarded the complaint to concerned  Section at Palakkad, as the complaint was written in the register by the complainant only after leaving the train from shornur railway station, the 4^th opposite party could not verify and found out the mobile.  The 4^th opposite party has given instruction to RPF Shornur to verify the fact in consultation  with the mechanical branch shornur.  Accordingly a  joint inspection was done by RPF and mechanical branch  Shornur and filed  joint inspection report by stating that the said inspection authority could not find any holes or opening in the   sheet adjacent to seat no. 64 of coach no. 95613 of train no. 16650(Parasuram Express).  Due to the typing error the train No.16609 was mentioned as Eranad Express instead of Parasuram Express.  According to 4^th opposite party the coach and train are one and  the same of Parasuram Express and mentioning Eranad Express is only a clerical error.  RPF not  being a technical authority is not at all  responsible for the alleged lapse mentioned in the petition.    

          4.  In view of the above pleadings the points that arise the consideration are:-

1.     Whether there is any deficiency in service on the part of the opposite parties   1 to 4?

  2.     Whether the complainant is entitled to get relief sought for ?

  3.     Relief and Cost?

5.  Evidence  on the side of the complainant consist of the oral evidence of  PW1 to PW3 and Ext.A1 to A19 documents.   None of the opposite parties have adduced any evidence either oral or documentary.   Both parties have filed notes of arguments.           Heard both sides in detail.

6. Point Nos. 1 and 2:-

         For avoiding repetition of discussion of materials these 2 points are considered together.

The specific case of the complainant who is none other than the father and Power Attorney Holder of Shri. Ayyappan who is the victim of the alleged incident is that his son Ayyappan was an M-tech student and in connection with his studies, he was travelling in Parasuram Express train on 5/6/2017 from Kayamkulam  to Shornur that he was operating his mobile phone by listening music by connecting ear phone at the mobile phone. However  between 9.30 and 10.30 am on that day  when the train was running  in between Changanaserry to Kottayam there was a sudden jerk of the train and the mobile phone of his son slipped from his lap and fell in to the hole of  the sun mica panel, which was very close to the seat at the thy level. The said seat was a window side seat in spite of the earned attempt of his son and also the attempt of his co-passengers and  one of the  Train ticket examiner, the mobile phone could not be found out.  But music was still on for about 5 to 10 minutes in the running train though the mobile was not visible. That his son tried by using his both hands several times to take out the missing mobile phone and in that process both hands got very badly injured on his fingers palm and both shoulders.  Though he sought help of two TTE found at the compartment none  of them could trace out the missing mobile phone. In spite of the best effort of his son by making phone call on the 2 sim card  installed at the mobile phone there was no response at all.  However  as directed by the complainant who is  none other than the father of the victim  the said Ayyappan made a written complaint  at the 1^st opposite party railway station master.  He has also shown the injuries sustained on his hands while searching out the mobile phone to the person in charge of that 1^st opposite party office.  Railway Station in charge read the complaint verified the injuries and issued acknowledged copy of the complaint to the victim by putting the seal and signature of the Railway authority.  But there was no response from any of the Railway authorities hence  the complainant send a letter to the 2^nd opposite party Railway Divisional Manager with a  copy of the same to the SI of Railway Police Kottayam, who after conducting necessary enquiry informed the  complainant over phone that on 20/6/2017 that the son Ayyappan  travelled in bogi No. 96613 of Parasuram Express and also informed that  the broken part of bogi was repaired by the Railway authority with new mica.  Opposite party No. 1 and 2  who are the Railway authorities have totally denied  the above allegations of the complainant and his son.  According to them no such incident has taken place and the son of the complainant Sri.  A.Ayyappan has  lost his mobile phone by travelling in the train from Kayamkulam to Shornur as he  handled the phone in a  negligent manner and there was no hole  on the side of the train travelled by the complainant’s son.  If at all  the complainant has sustained any injury  on his body while attempting to take the mobile phone the same is only  trivial  in nature and there is no deficiency in service on the part of the Southern Railway and any of its employees and therefore the complainant is not entitled to get the cost or compensation as claimed in the complainant.  However the opposite party have not adduced any evidence either oral of documentary to substantiate their contentions.

         PW3 Ayyappan is the owner of the mobile phone as well as passenger of the Parasuram Express.  The oral evidence of PW3 coupled with Ext.A1 to A5 would establish that on 5/6/2017 he was a passenger of the Parasuram Express that he reserved a seat for travelling from Kayamkulam to Shornur and while he was travelling in coach No. D3 seat NO.54 (window side) in bogi no 96613, that between 9.30 and 10.30 am while he was  hearing music from his mobile phone with the ear phone by  placing the mobile phone on his lap the mobile phone slipped  from his lap and fell  into  the broken side sheet of the bogi.  Ext.A7 is the E-ticket issued by the Southern Railway in the name of the said Ayyappan authorising him to travel from Kayamkulam Junction to Shornur on 5/6/2017 between 8.12 AM and 13.50 noon in train No. 16650/Parasuram Express in General quota.  Ext.A1 is the carbon copy of the original petition filed by Sri. Ayyapan at the Shornur Railway Station which would indicate that he was a passenger of train No. 16650 on 5/6/17. Complainant has filed  Ext.A1 petition at  2.45 p.m. on the same day, by narrating  the entire incident and also stated that the lost the mobile phone is  worth Rs. 16,000/- and  that while attempting to trace out the mobile phone  he sustained injury on his both hands.   In short the entire episode has been stated in Ext.A1 petition which is the earliest version regarding the incident.  The oral evidence of PW3 stands corroborated by the oral evidence of PW1 and PW2.   It is true that PW2 is none other than the father of PW3 but PW1 is an independent witness who was also a co passenger of same train but not on the same bogi.  The oral evidence of PW1 and PW2 would indicate that they have not directly seen the alleged incident of fall of the mobile phone into the hole on the side of the bogi from the lap of the complainant and she came to know about incident at  North Railway Station Ernakulam between 10.am and 11.am on the same day. According to PW2 immediately after the loss of mobile phone PW3 intimated the fact to himself and on the basis of  his advice PW3 filed Ext.A1 petition. The oral evidence of PW1and Ext.A2 to A5 documents would probable the case of the complainant (PW2) and his son (PW3) that  while PW3 was travelling in the said bogi of Parasuram Express  the mobile phone lost by slipping the same in to hole found  on the side of the bogi that PW3 intimated the fact to the railway authorities and also to his father (PW2).  According to PW2, on getting information from his son (PW3) he made a complaint before the Railway police.   Ext.A4 is the letter received from the  Railway Divisional Manager, Palakkad dated 13/6/2017 by pW3 which would indicate that sri.Ayyappan (PW3) has made a complaint regarding the episode to the Station Master on the   same date by alleging that the mobile phone has been lost while travelling in train no. 16650 Parasuram express through the hole near the seat. 

         Ext.A8  is the  report of investigation signed by SI of police Railway police station  Kottayam  in respect of the alleged missing of the mobile phone of the said Ayyappan.  In the said report it is stated that Sri.Adv.Ajan has sent a complaint dtd 16/6/17 in respect of the missing of the mobile phone of his son Ayyappan on 5/6/17 while travelling the Parasuram express and the complaint was received by the SI of police Railway police station Kottayam and accordingly he conducted  investigation and on its investigation it was revealed that Ayyappan  was a passenger of D3 coach of Parasuram Express from Kayamkulam to Shornur that when the reached between Changanasery and Kottayam his mobile phone fell into the  broken part of the  side sunmica panel which was close to the seat where the said Ayappan was sitting and he questioned the pantry manager on duty of that day and convinced himself that such incident has taken place.  However on 20/6/2017 when he verified the coach it was found that the broken part was repaired and replaced  that he has intimated the facts to the chief train clerk and commercial manager of the Railway.  Ext.A9 is the letter addressed  by the SI of the Railway police station, Kottayam  to the chief train clerk southern Railway, Nagarcovil and  Ext.A10  is the copy of the another letter addressed to Divisional Commercial Manager, Trivandrum issued by  reiterating the averments contained in the Ext.A8 and also requesting to conduct a further enquiry, and to find out the mobile phone if any available  where the coach has been replaced.  Ext.A8, A9 and A10 would probable the case of Sri. Ayyappan stated in Ext.A1 petition.

           The learned counsel for the Opposite parties would rely on Ext.A6 letter issued by ASE/RPF PGT to the defend the case of  the complaint Sri.A.Ayyappan and his father.  It is true that in Ext.A6 letter it is stated that the RPF personals inspected the D3 coach having No.95613 during the halt at Shornur Railway Station  and found that the  “sheet provided by side of  seat No.54  is intact  condition and no such hole or gap noticed.   Further they checked the underneath side of the said coach but nothing is found”.    In view of the above report the learned counsel appearing for the Opposite party no.1 and 2 has vehemently argued before the forum that there  was no hole or gap in the coach in the bogi or it the side of the seat 54 and therefore the allegation of the complainant that his  mobile phone fell into the gap or hole on side seat no. 54 is  totally false and  unbelievable.  In view of the facts and circumstance of the case including the oral evidence of PW1 to 3 and Ext.A8 to A10 documents we find no merit in the above contentions.  It is pertinent to note that  the complaint was made on 5/6/2017 and the same was received by the DSC/PRF Palakkad on 12/6/17 which was after 7 days of the complaint.  Ext.A6 report was prepared on 20/6/2017 it is clear from the Ext.A1 complaint and Ext.A7 ticket, Ext.A8  Enquiry report of the S.I. of Police, Railway police station, Kottayam, that incident was taken place in Parasuram Express D3 coach.  But the Railway Protection force with the help of Junior Engineer C&W has conducted  investigation in Eranad Express having coach no. 95613.  It is clear from the coach no and name of the train that Ext.A6 has been issued without verifying the  D3  coach of Parasuram express but only after verifying another coach of yet another train by name  Eranad express      In view of the materials discussed above it is clear that Ext.A6 document  will not disprove the case of the complainant nor substantiate the contention of the opposite parties. 

         The oral evidence of PW1 to 3 coupled with Ext.A12 series Photographs would clearly indicate that complainant has sustained injuries on his both hands even up to shoulder, while he was  in search of the lost mobile phone by putting both hands into the hole of the bogi.  It is true that the complainant has not  gone to any hospital and availed any treatment.  The oral evidence of PW2 and 3 would indicate that they have treated the injuries with virgin coconut oil any how it is clear that the complainant has sustained some  minor injuries on his both hands while searching  the missing mobile phone  by putting his both hands in the hole found on the side wall of the compartment.  According to PW3 he sustained pain due to the injuries and as a result of the loss of mobile phone he sustained a financial loss of Rs. 16,000/- apart from the  mental agony  pain and sufferings.

         Yet another contention of opposite part No. 1 and 2 is that if at all any mobile phone was lost there is no documentary evidence to substantiate that  the lost mobile phone belong to the said Ayyappan who is the son of the complainant  and Ext.A11 relied on by the complainant would indicate that the mobile phone was purchased in the name of one Karthik Krishnan and therefore neither the complainant nor his  son is entitled to get any  amount due to the alleged  loss of the mobile phone as claimed in the complaint.   It is true that Ext.A11 prepaid Tax invoice/Bill is issued in the name of one Karthik Krishnan. But in view of the oral evidence of PW2 and 3 coupled with Ext.A9 to A15 documents we find no force in the above contention.  Ext.A15 is the Order placed in respect of lost mobile phone.  Ext.A16 is the debit chart.  Ext A17  is the confirmation letter.  Ext.A18 is the transaction history.  Ext.A19 is the  Bank pass book.  Ext. A 16 to 19 documents would clearly indicate that the payment for Ext. A15 order for the mobile phone made in the name of Sri. Karthik Krishnan has been paid by  Sri. Ayyappan (PW3) by using his debit card through Dhanalekshmi Bank, Vallikkavu, Amrithapuri Branch.    It is true that the shipping address shown in Ext.A11 & A15 is the address of the said Karthik Krishna and hence it was sent in the name of Karthik Krishnan probably because of the fact that the complainant and his son have been residing not on their own house, but at Amrithanandhamai Muttu, at Vallikavu, Amrithapuri.

          On evaluating of the entire materials available on record we have no hesitation to hold that the complainant has succeeded in establishing the case setup in the complaint.  It is the duty of the Railway authorities including opposite parties 1 and 2 to keep the railway coaches  without any breakage of hole so as to avoid the loss of any  valuable article belongs the passengers.  Here in this case Ext.A8 investigation report of the SI of police would clearly indicate that there was a deep hole on the bogi at the side of the passenger seat No. 54 of Parasuram Express and there is a chance of falling the mobile phone from the lap of the passenger sitting at the said seat.  It is also brought out in evidence that though the said Ayyappan who lost the mobile phone has reported the  fact to the TTR and other responsible officials of the Railway then and there.  But they have not made any earnest attempt to trace of the lost mobile phone of the said Sri. Ayyappan.  Hence  there is clear deficiency in service on the part of the opposite party 1 and opposite party 2.  It is also brought out in evidence that while attempting to trace out the mobile phone lost from his lap  the said Ayyappan has sustained visible injuries all over his both hands and thereby he sustained severe pain and mental agony apart from the financial loss sustained due to the loss of mobile phone, therefore the complainant is entitled to get the value of the lost mobile phone which is Rs. 12,999/- as evidence from Ext.A11, Ext.A16 to A19 documents and also entitled to get a reasonable compensation for the pain and mental agony sustained by the said Ayyappan due to the loss of his mobile phone. 

          In view of the facts and circumstance of this case we are of the view that complainant is entitled to get

compensation to the tune of Rs. 10000/- apart from the value of the lost mobile phone.   Complainant is also entitled to get the  cost of the proceedings.  The points answered accordingly.

         Point No.3:-

         In the result the complaint stands allowed in the following terms:- Opposite parties No. 1 and 2 are directed to pay Rs.12,999/- to Sri. Ayyappan being the cost of his lost mobile phone with interest at the rate of 9% per annum at from the date of complaint till realization.

         Opposite party No. 1 and 2 are further directed to pay Rs. 10,000/- as compensation for the mental agony sustained by the said Ayyappan due to the loss of his new mobile phone and also for the bodily pain and injuries sustained while he was attempting to trace out the lost mobile phone along with interest at 9% per annum from the date of complaint till realization.

         The Opposite parties No. 1 and 2 are further directed to pay Rs. 5000/- towards cost of the proceedings to the said Ayyappan.

         Opposite parties No. 1 and 2 are  directed to comply with the above directions  within 30 days  from the date of the receipt of the copy of this order, failing   which Sri. A. Ayyappan is allowed to recover Rs.22,999/- along with the interest at the rate of 12% per annum from the date of complaint till realization along with cost Rs.5000/- from the opposite parties No.1 and 2 jointly and severally  and  from their assets.    

                   Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 17^th  day of  January, 2019.                                               

  Sd/-Sri.E.M. Muhammed Ibrahim (President)

                                                 Sd/- Smt. Sheela Jacob (Member)

Appendix:-

Evidence of the complainant:-

PW1          -        Gourikuttyamma (Witness)

PW2          -        Ad. T.K. Ajan (Witness)

PW3          -        Ayyappan(Witness)

Ext.A1      -        Original complaint. Dtd. 5/6/2017.

Ext.A2      -        Registered A-D

Ext.A3       -         Acknowledgment Card  dtd. 16/6/2017

Ext.A4       -        Letter from Railway, Palakkad

Ext.A5       -        Post cover

Ext.A6       -        Letter from           DSC/RPF/PGT office dtd.20/6/2017

Ext.A7       -        Electronic Reservation Slip.

Ext.A8       -        Enquiry Report

Ext.A9       -        Copy of  letter

Ext.A10     -        Letter Dtd. 16/6/2017

Ext.A11     -        Retail tax Invoice .(Subject to Objection)

Ext.A12(Series)  -        Photographs

Ext.A13     -        Exam Admit Card.       

Ext.A14     -        Electronic Reservation Slips.

Ext.A15     -        Order slip .

Ext.A16     -        Debit Alert.

Ext.A17     -        Confirmation Letter

Ext.A18     -        Transaction History

Ext.A19     -        Bank Pass book

Evidence of the opposite parties:-  Nil

// True Copy //

To

            Complainant/Oppo. party/S.F.

                                                                                                                           By Order

                                                                                                                   Senior Superintendent

Typed by:- Br/-

Compared by:-