Date of Order : 24.02.2016

            The present appeal is directed against the Order, dated 05.05.2014, passed by the  Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit -  II, in CC No. 53 of 2013, whereby the complaint  was allowed on contest with cost and compensation.

            The complaint case, in brief, was as follows :

            The Complainant boarded the Train No. 13009, Doon Express, along with his wife and son on 14.12.2012  for journey from Howrah to Mughalsarai. While they were on train, a group of unidentified persons started criminal activities in collusion with the Coach Attendant. The Complainant was told by the Coach Attendant, Md. Raja and one Kala Sona Jana that the was no security arrangement of Railway authority to protect life and interest of passengers.  Having reached Gaya they found that two large trolley suitcases containing cash and other valuables were missing. A complaint on 15.12.2012 was lodged with the East Central Railway authority at Mughalsarai. The Complainant had to stay in a Hotel after lodging  compliant. They had to purchase Air Tickets for their journey from Varanasi to Kolkata on 16.12.2012. Allegedly, the theft of their articles was due to the deficiency in service on the part of the OPs. A complaint was lodged before the Ld. Forum below with prayer for direction upon the OP Railway authorities to pay Rs.1,01,600/- towards monetary loss,  Rs.1,00,000/-  as compensation for  mental  and physical humiliation and  Rs. 90,000/- for harassment made by Coach Attendant, TTE and RPF Officer Miss. Vinita Kumari at Mughalsarai junction and litigation cost.

            The petition of complaint was contested by the OPs. OP Nos. 1 and 4 filed a Written Version and contended that they were unnecessary parties as the alleged incident of theft took place at Gaya which was under the jurisdiction of OP No. 2 and 3. It was denied that any unauthorized person was allowed in 3-A.C. Coach No. B/2 of Train No. 13009 leaving Howrah on 14.12.2012. It was also contended that the Complainant did not book his luggage with the Railways and no receipt was issued for such booking. Hence, the said OPs were not responsible for loss, destruction, damage, deterioration or non-delivery of such luggage in terms of Section 100 of the Railways Act, 1989. The complaint was liable to be dismissed against them.

 OP Nos. 2 and 3 also filed Written Version wherein it was contended that since the Complainant detected that the incident of theft was near about Gaya, the District Consumer Disputes Redressal Forum, Gaya, was the appropriate Forum for adjudication of the case and the Ld. Forum, Kolkata Unit – II, did not have territorial jurisdiction. Denying the material allegations, OPs stated that there was no statement of any co-passenger in support of the averment of the Complainant. No unauthorized person was allowed inside the reserved compartment. Further, the complainant was carrying his luggage under his own charge and   at his own risk. His claim for compensation was hit by Section 100 of the Railways Act. There was no deficiency in service on their part and the complaint was liable to be dismissed.

            Ld. Forum below after having perused the complaint, the Written Versions and other materials and having heard both parties observed that a Sleeper Coach must have a guard during night hours journey and if Railway authority fails to provide such service to the reserved coach passengers who availed of such Sleeper Coach for their smooth journey at night, then they are answerable to the passengers. It was observed that the unidentified miscreants looted the valuable articles including cash and the luggage which were stolen at midnight or dawn during transit. Ld. Forum below also observed that the Railway authority was responsible in terms of Section 100 of the Railways Act, 1989 in respect of both booked luggage and non-booked luggage. It was the responsibility of the Railway authority to give all service, including safety and facility and other amenities. It was held  that for not giving proper service and for negligent manner of service, Railway authority was responsible for their latches and mis-conduct of the railway staff.  Negligence on the part of the Railway Authority was proved. The complaint was allowed with cost of Rs.10,000/- against the OPs. OPs were directed to pay compensation of Rs.1,00,000/- to  the complainant for causing mental pain, agony and harassment.

Being aggrieved by and dissatisfied with order of the Ld. Forum below the Appellants have come up before this Commission for direction to set aside the impugned order.

The Memorandum of Appeal has been filed together with copies of the impugned order, the petition of complaint, the written complaint dated 15.12.2012 filed by the Complainant at Mughalsarai, the list of  stolen articles with cash, etc. valued at Rs. 2,01,600/-, the Written Version submitted by the OPs and other documents including evidence-in-chief of the General Manager, Eastern Railway and affidavit-in-evidence by the Complainant.

            Ld. Advocate appearing for Appellant submitted that in several judgments and orders Hon’ble Supreme Court and Hon’ble National Consumer Disputes Redressal Commission have held that Railways cannot be made responsible for the loss of goods which are not booked with them. The Respondent/Complainant did not mention in his complaint if any care was taken by him about the luggage during their journey. Ld. Forum below wrongly interpreted that as per Section 100 of the Railways Act, the Railway authorities are responsible for loss of  luggage and goods whether booked or not. There was no evidence produced by the Complainant to show that unauthorized persons were allowed entry into the compartment. The impugned order was materially wrong and legally invalid in so far as the Ld. Forum below passed the order with misinterpretation of Section 100 of the Railways Act. The impugned order deserves to be set aside.

            Ld. Advocate appearing for the Appellants submitted copies of orders of the Hon’ble Supreme Court in Appeal (Civil) No(s) 34738-34739/2012, the orders of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No. 2182 of 2010, Revision Petition No. 4449 of 2010, Revision Petition Nos. 858 of 2005, 2025 of 2009, 95 of 2005, 2768 of 2013 and the order of the Hon’ble National Consumer Disputes Redressal Commission as reported in IV (2010) CPJ 191(NC).

            Ld. Advocate appearing for the Respondent submitted that since the security point was not given due importance and unauthorized persons were allowed to board the compartment in which the Respondent  was travelling, theft of their luggage containing cash and valuable  articles took place and the matter was brought to the knowledge of the concerned Railway Officer at Mughalsarai. But no action was taken to recover to stolen articles. He had to incur an extra amount of money for staying in the Hotel, for purchase of new woolen cloths  and also for return to Kolkata by purchasing Air Tickets. All material points have been noted by the Ld. Forum below under whose jurisdiction the Offices of the OPs, i.e. the General Manager, Eastern Railway, the Divisional Railway Manager, Eastern Railway  and the Chief Commercial Manager, Eastern Railways are located. Hence, the argument that the Ld. Forum does not have territorial jurisdiction to adjudicate the complaint does not stand. The impuged order has been passed, keeping in view all material facts and points of law. As such, the order may be upheld.

Decision with reasons :

            The point for consideration before us is whether the impugned order suffers from material irregularity or legal infirmity.

            There is no dispute that the Respondent/Complainant boarded the Train No. 13009, Doon Express along with his wife and son on 14.12.2012 with their confirmed reservation  tickets for journey. Allegedly, they found at Gaya Station on 15.12.2012 that two trolley bags were missing and the theft of those trolley bags was due to the negligence and deficiency in service on the part of the OP Railway authorities. A sum of Rs.2,01,600/- was estimated against the loss of articles including cash and compensation for mental and physical harassment of three persons as caused by the absence of security arrangement in AC Compartment (Coach No. B-2).

            It is a fact that the Respondent/Complainant lodged a complaint before the GRP at Gaya on 15.12.2012 about the missing of his trolley bags containing cash and valuables, though the said trolley bags were not booked with the Railways. 

            As pointed out by the OP/Appellants a railway administration is not responsible for the loss or 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 charge, unless it is also proved that the loss, destruction, damage or deterioration was due to the negligence or mis-conduct on its part or on the part of any of its servants.

           In the present case, the luggage was carried by the Respondent/Complainant in his charge and in terms of Section 100 of the Railway’s Act, 1989 it was necessary to prove that the loss was due to the negligence or misconduct on the part of the Railways.

            It is important to  note that the Respondent/Complainant stated nothing in support of taking care of his  luggage except alleging that some unidentified persons, supposed to be miscreants were responsible for theft of his trolley bags. Whether those persons were trespassers could not be said for certain with any evidence in his written complaint as recorded in the Suggestion-cum-Complaint book. It has been noted that Mr. Raja, Coach Attendant “allowed persons entering the coach and seat nos. 26,27, 29,30, 32 and 17 all got down at Gaya”. If such persons were believed  to be unauthorized persons, the coach attendant should have been made a party for verification and examination of the fact of valid occupation of those seats. That has not been done and in that perspective it cannot be said that those persons were responsible for theft of the luggage of the Respondent/Complainant. Again in his list of actual expenses and contingent liabilities incurred due to gross negligence of security by Eastern Railways (Annexure – C  to the complaint petition ), it has been noted under Sl. Nos. 9,10 and 11,  that the Complainant had to purchase new woolen and cotton cloths, three return Air tickets from Varanasi to Kolkata and had to stay at Hotel at Varanasi for which a substantial amount had to be spent. All such expenses appear to have been incurred after the alleged incident of theft of his trolley bags while on board the Train No. 13009/Doon Express. No document in support of purchase for woolen and cotton cloths, air tickets or hotel expenses have been produced before the Ld. Forum below which leads to an adverse inference that the claim about the loss of articles is either inflated or incorrect. There is also no reflection in the impugned order as to whether Ld. Forum below accepted the value of the loss articles including cash.  A lump compensation of Rs. 1,00,000/-  has been allowed as the purported loss was due to the lack of proper security and service from the Railway authority.

            However,  the question of providing security in a reserved railway coach as emphatically  pointed out by the Ld. Forum below is very much important and deficiency in service on the part of the Appellant authorities cannot be ruled out altogether as a contributory cause of theft of the trolley bags of the Respondent / Complainant. The Appellants/OPs. have not come up  with any evidence showing that necessary security arrangement was provided in the reserved coach in the interest of the travelling passengers on board. The Appellants are totally silent on that point and it can be reasonably presumed that had there been necessary security arrangement in the coach, the theft of the trolley bags, containing cash and valuables, total value of which is of doubtful nature, might have been averted. In the absence of any security personnel it was easy for the wrong doers to lift the trolley bags of the Complainant. In such a position compensation and cost of litigation being considered to be vital, Ld. Forum below allowed Rs.1,00,000/ as compensation and Rs. 10,000/- as cost, which, however, is very much on higher side. Such amounts may be suitably modified in allowing the appeal in part.                                Hence,

ORDERED

That the appeal be and the same is allowed in part with modification of the impugned order to the effect that the Appellants  shall pay Rs.20,000/- as compensation and Rs.3,000/- as litigation cost  instead of Rs. 1,00,000/- and Rs.10,000/- respectively as ordered by the Ld. Forum below. The said amount of Rs.23,000/- shall be paid by the Appellants jointly and/or severally to the Respondent/Complainant within a period of 40 days from the date of this order, in default whereof, penal interest @ 7% p.a. on the said amount shall be charged till full realization. There shall be no separate order as to cost.