DATE OF FILING                    :     09.06.2015.

DATE OF S/R                            :      03.09.2015.

DATE OF FINAL ORDER      :     30.03.2017.

Papun Bhattacharya

of  Su Avishek Abasan, 2^nd floor, HJ

20, S. L. Sarani, Baguihati, Joramondir,

Kolkata 700 059…..………………………………………………… COMPLAINANT.

• Versus   -

1.         The Chief Grievance Officer,

Indian Railway, Government of India,

Railway Ministry, New Delhi 1.

2.         The General Manager,

Eastern Railway, Fairely Place,

Kolkata 700 001.

3.         The Officer In Charge,

Government Railway Police,

Howrah Railway Station,

Howrah  711101.

4.         The General Manager,

NF Railway, Maligaon,

Guwahati 781011. …………………………………………OPPOSITE PARTIES.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Smt. Papun Bhattacharya against the Chief Grievance Officer, Indian Railway and three others, praying for a direction upon the o.ps. to return the valuables stolen in course of journey amounting to Rs. 2,330,000/- ;along with 14% interest and to  pay Rs. 2,50,000/- as  compensation and Rs. 19,000/- as litigation costs.  

2. The case of the petitioner is that in course of journey dated 24.9.2014 from Tinsukia  to Howrah by Kamrup Express with reservation along with her family members with tickets bearing BNR no. 6233977097 on 23.9.2014 but the train actually departed on 24.9.2014, the petitioner found that some berths were empty and at about 2.30 p.m. the train stopped at Rangia Station and she found one person came to berth no. 39 and sat there. The petitioner occupied the upper berth no. 40 and was lying on the same keeping her vanity bag using the same as pillow. When the train started moving then suddenly the passengers occupying berth no. 39 stood up and snatched her vanity bag and got down from the train immediately.

3. The petitioner shouted and her family members and other passengers looked for RPF but neither RPF nor the TTE came there and after forty minutes they came. The petitioner told everything to them and requested them to take immediate action as she had cash of Rs. 1,12,500/- in her bag and other valuable articles like Samsung mobile phone – 1282 Black with SIM being no. 9831348025 and two sun glasses and two  gold bangles weighing 12 gm each and two pieces of ear ring weighing 5 gm. Each and her PAN card being no. AGJPB 8058Land her son’s PAN card no. ALWPB 7885P and her mother’s PAN card no. AMSPB 4747P and I Card and driving licence and debit card of Allahabad card of her son were also lying in the said bag which was black in colour. RPF personnel advised her to file a complaint before Howrah GRP as soon as she reaches Howrah because the train was running. The petitioner reached Howrah Station and made a complaint before O.C., GRPF, Howrah, on 27.9.2014 being Howrah GRPF case no. 14(233) dated 29.9.2014 U/S 379 I.P.C. Then the case was referred to GRP Rangia and a case was registered 35 dated 15.10.2014 U/S 379 I.P.C. the petitioner enquired through letter addressed to Officer in charge, Rangia G.R.P. as well as Superintendent Railway Police, Pandu  Gohwati and no response received.

4. Suddenly on 17.4.2015 the petitioner received notice from Rangia GRP that final report was submitted in GRPF case no. 35 of 2014 u/s 379 I.P.C. stating “case is true but found no clue” . the petitioner sent a demand notice to the railways  through his lawyer claiming Rs. 2,30,000/- and also compensation of Rs. 2,50,000/- for their mental agony and harassment as it was the duty of the railway to provide security to the passengers in a reserved compartment and railway being unable to protect passenger in a reserved compartment from intruders and such act amounted to imperfect and deficiency in service and the railway is bound to compensate the loss.  Hence the complaint case.

5. The o.p. no. 4, General Manager, N.F. Railway, Maligaon, contested the case by filing a written verison denying the allegations made against them stating that the case is not maintainable and is also barred by limitation and the petitioner has no cause of action to file the case. Further case of the o.p. is that due to heavy rains in Assam and Meghalaya on 22.9.2014, floods damaged in bridges and delayed departures of trains. During enquiry held by RPF, Rongia, they found several inconsistent statement made by the petitioner and her husband and from the report of RPF it is noticed that husband of the petitioner simply report the matter to be escort party of the train that they lost the bag before the arrival at the train at Rangia and the petitioner told the escort party that the train was running and they were sleeping when it was mid night. The statement made by husband and wife differ in respect of location of missing of the vanity bag and the husband told that his wife might have left the vanity bag at her home but the escort party told that the train was running and so husband of the petitioner were not interested to lodge any FIR in running train.

6. Railway is not responsible in respect of luggage of passengers who keep the same in her custody. The luggages are not separately booked and not handed over to the railways to take charge of the security of the same.  As regards the compensation the same falls under the jurisdiction of Railway Claims Tribunal Act, 1987 U/S 15 which oust the jurisdiction of other courts and tribunals. Our Supreme Court in the case of Bijoy Kumar vs. Union of India and another opined that railways cannot be held responsible for any loss due to theft. So the case should be dismissed. 

7. Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?
2. Whether the petitioner has any cause of action to file the case ?
3. Whether  there is  any deficiency in service on the part of the O.Ps. ?
4. Whether the complainant is   entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

8. All the issues are taken up together for the sake of convenience and brevity for discussion and to skip off reiteration. In support of her case the petitioner, Papun Bhattacharyya, filed affidavit in evidenceand documents being her up and down railway tickets bearing PNR no. 6333818067 with journey date 17.7.2014 along with two other co passengers and during return journey from New Tinsukia to Howrahwhen the incident took place she had her PNR no. 6233977097 in train no= 15960 with journey date 23.9.2014 and she was returning along with two other passengers of her family with coach no. S9 and berth nos. 37, 28, & 40 by Kamrup Express wherein the alleged incident had taken place. She also filed one copy of her complaint before the officer in charge, Government Railway Police, Howrah Railway Station, West Bengal, dated 27.9.2014 and also she lodged complaint before the Superintendent of Railway Police, GRP Head Quarter Pandu, Gowhati 781021, Assam, dated 27.1.2015, requesting him to take step against the miscreants who took away her vanity bag. She again sent a complaint about the theft of vanity bag before the Officer in Charge, Government Railway Police, Rangia GRP Station, Rangia Kamrup 781354, dated 01.10.2014 with the appeal for recovering her vanity bag with valuables. She also sent a letter to the Chief Grievance Officer, Indian Railways, Government of India, and General Manager, Eastern Railway, and General Manager, NF Railway, and officer in charge, GRP, Howrah Police Station,dated 27.4.2015 through her lawyerin the form of a notice.

9. Against the above documents filed by the petitioner the o.ps. filed one letter dated 11.5.2015 written by Senior Commercial Manager for Chief Commercial Manager addressed to the petitioner sending her complaint to the Chief Commercial Manager, N.F. Railway, Gowhati, for taking remedial action. Divisional Security Commissioner, N.F. Railways also filed a letter dated 19^th June 2015 in reply to lawyer’s notice in connection with the theft of the vanity bag with valuables and one report of one B. Majumdar, Inspector N.F. Railway, informing the Divisional Security Commissioner, in connection with the theft of vanity bag of the petitioner. The inspector further submitted in his report that GRPs / RNY investigated into the matter and submitted final report no. 1 dated 30.01.2015 in the Hon’ble Court of SDJM / RNY with findings that the vanity bag might had been stolen by an unknown miscreant at the time of arrival of the train at RNY. It was also sub mitted before the court that the exact location of missing vanity bag containing personal belongings could not be found out due to want of SDR particulars from SRP/Assam, Pandu, and the I.O. sent the IMEI number of stolen mobile but no reply had been received by the I.O. till the submission of final report. The o.p. N.F. Railway also filed one letter dated 20.5.2015 from Assistant Security Commissioner, N.F. Railway, Maligau, addressed to Dy. Security Commissioner, N.F. Railway, in respect of the theft of the vanity bag with valuables inside the train no. 15960 down Kamrup Express at Rangia Station at 25.9.2014 and submitted further the GRP further transferred the case to GRP Rongia who in turn registered a case no. 35 of 2014 U/S ;379 of I.P.C. and after investigation the GRP Rangia has closed the case as FR that the case is true but found no proof and the matter was intimated to victim.

10. This Forum heard the ld. counsels of both sides and had gone through the written arguments filed by the parties and on scrutiny of the oral as well as documentary evidence finds that in the instant case the petitioner was travelling from Tinsukia to Howrah on 23.9.2014 by Kamrup Express and in the night at about 2.30 p.m. the train stopped at Rangia Station and this petitioner, Papun Bahttacharyya, found one person came into their reserved coach S9 and occupied berth no. 39 being the lower berth while she was occupying the upper berth 40. It is the further case of the petitioner that she was lying in her berth using her vanity bag like a pillow and when the train started moving then suddenly the passenger of berth 39 stood up and snatched her vanity bag and got down from the train immediately.She shouted along with her family members and some passengers also looked for RPF as well as TTE of the compartment but neither the RPF nor the TTE were available and they came after 40 minutes. The petitioner narrated the fact to them that she lost her bag carryingRs. 1,12,500/- and her two gold ear rings of 5 gm. each and two gold bangles of 12 gm. Each and her sun glasses, PAN card of herself and her son and that of her mother in law and I card and driving licence of her son and debit card of Allahabad Bank. The RPF personnel advised her to lodge complaint before Howrah GRP.

11. From the above facts it is noticed clearly that it was the vanity bag of the petitioner which was taken away from her person. It was not a luggage of the petitionerwhich was kept under the lower berth of the reserved compartment. Ld. Counsel for the railway submitted before the Forum that theft of any article from the reserved compartment cannot ordinarily be alleged as deficiency in service on the part of the railways. Ld. Counsel rightly observed as our National Commission also in the case of Bijoy Kumar vs. Union of India vol. III2012 CPJ page 55 opined in the same tune. Ld. Counsel for the railway further argued that the petitioner had not booked the luggage against the receipt from the railway authority as per Section 100 of the Indian Railways Act and so railways cannot be held responsible for the loss of any luggage not so booked. Such a plea of the Ld. Counsel cannot be tenable here because here the theft took place in respect of the vanity bag which is included in the person of the petitioner and it cannot be stated by anybody that it was a separate luggage. Our law respects the vanity bag of a women being included in her person and it is never accepted as a separate luggage.Thus the submission of the ld. Counsel of the railway is not tenable referring Section 100 of the Indian Railways Act.

12.  Further our National Commission in the case of Union of India vs. Delsukraj Dave opined “A major responsibility cast on the TTE in addition to examining the tickets is that of ensuring that no intruders enters the reserved compartment …............................. This is certainly a gross dereliction of duty which resulted deficiency in service….….….….….….….…....”

     

13. Last but not the least is the report of the Assistant Security  Commissioner dated 20.5.2015 to the Deputy Security Commission, N./F. Railway, in  connection with the registered case no. 35 of 2014 U/S 379 I.P.C. arising out of the alleged theft on the complaint of this petitioner, the Assistant Security Commissioner stated that after investigation by GRP Rongia the case was closed as FR that is the case is true but found no clue and the same view came out from the report of the inspector N.F. Railway, B. Majumdar, that the GRP investigated the matter and submitted final report before the Court of SDJM / RNY with the findings that the vanity bag might have been stolen by unknown miscreant and also they closed the case.  Referring the notice of Rongia GRPF dated 17.4.2015 ld. Counsel for the petitioner submitted that the case was closed with statement that the case was true but no clue found.

14. Last but not the least is the report of the Assistant Security  Commissioner dated 20.5.2015 to the Deputy Security Commission, N./F. Railway, in  connection with the registered case no. 35 of 2014 U/S 379 I.P.C. arising out of the alleged theft on the complaint of this petitioner, the Assistant Security Commissioner stated that after investigation by GRP Rongia the case was closed as FR that is the case is true but found no clue and the same view came out from the report of the inspector N.F. Railway, B. Majumdar, that the GRP investigated the matter and submitted final report before the Court of SDJM / RNY with the findings that the vanity bag might have been stolen by unknown miscreant and also they closed the case.  Referring the notice of Rongia GRPF dated 17.4.2015 ld. Counsel for the petitioner submitted that the case was closed with statement that the case was true but no clue found.

           In view of above discussion and findings, this Forum finds that there was clear negligence on the part of the TTE as well as security personnel of RPF while performing their duties and the same amounted to negligence and deficiency in service on the part of the railways for which they are liable to pay compensation to the petitioner.

           As regards payment of compensation this Forum find from the word compensation that it is nothing but indemnification or payment of damages. The word compensation is of wide connotation means and its means compensating or being compensated. In legal sense it constitutes actual loss or expected loss and may extent to physical mental or even emotional suffering. Thus the word compensation means the money – equivalent of the loss or injury suffered by the petitioner. U/S 14 of the C. P. Act, 1986 this District Forum is empower to award compensation for any loss or injury suffered by a consumer on account of negligence of the o.p. and the claim of the petitioner must be substantiated by sufficient evidence and compensation has to be assessed not arbitrarily but on the basis of well accepted legal principle.

           In the instant case the petitioner submitted in the complaint petition that she had Rs. 1,12,500/- in her vanity bag and also gold ornaments like two bangles and two ear rings weighing almost 34 gm. in total and PAN card, ATM card, driving licence etc. Besides her affidavit she has not produced even an iota of evidence in the form of her pass book or purchase documents that she had  withdrawn the above amount or like that before going to Assam and coming back with the same and thus carrying such huge cash of over Rs. 1 lakh while coming back from Assam to West Bengal which is not sufficiently substantiated by her and the same seems to be unnatural. As regards her gold ornaments of about 34 gms. she has not produced any document in respect of her purchase of such ornaments or any other authentic document to prove that she possessed such ornaments. Generally people carry thousands of rupees may be Rs. 20,000/- or Rs. 30,000/- while travelling in train besides exceptional circumstances which got to be proved by the petitioner as to for what purpose she carried the above amount of Rs. 1,12,500/- and from what source she got the money and in the absence of any such evidence in support of her source of money and also in the absence of purchase receipt of gold ornaments, this Forum finds it hard in   accepting her claim in toto which would be arbitrary on the part of the Forum even though it is fact that she lost her vanity bag due to theft as is accepted by this Forum and the beg containing money and ornaments for common to be continued  which she is entitled to lump sum compensation of Rs. 50,000/- as is thought wise and prudent on the part of this Forum.

           In the result, the application succeeds in part.

           Court fee paid is correct.

          Hence,

                       O     R     D      E      R      E        D

       That the C. C. No. 217 of  2015  be  and the same allowed in part  on contest with  costs  against  the O.Ps. 

      The petitioner is entitled to the relief  in part as prayed for. The O.Ps. be directed to pay Rs. 50,000/- as compensation for the lost vanity bag of the petitioner alongwith articles and for her mental agony and harassment and to pay a sum of Rs. 15,000/- out of which Rs. 5,000/- would go to the petitioner as litigation costs and the rest Rs. 10,000/- ;would be deposited in the Consumer Legal Aid A/c of this district within 30 days from the date of this order.

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

     Supply the copies of the order to the parties, free of costs.  

DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.