IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Saturday the 27thday of November, 2021.
Filed on 18.10.2019
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.P.RSholy, B.A.L, LLB (Member)
In
CC/No.264/2019
between
Complainant:- Opposite parties:-
Sri.Jijo K.K 1. The Divisional Railway Manager
Kuruppamthara Southern Railway Divisional-
CMC-VIII, Cherthala P.O. Office, Palakkad.
Alappuzha. (Adv.Sri.G.Premlal)
(Adv.E.D Zacharias)
2. The Station Master
Railway Station, Alappuzha
3. General Manager
Western Railway, Annexe building
Ground floor, Western Railway
Head quarters, Church gate
Mubai- 400020
(Exparte)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
Complainant and his wife were travelling from Delhi to Alappuzha in train No.12432 Rajadhani express on 25-6-19. At about 3 AM after Vasai road in Panvel in Maharashtra the complainant found that his valuable articles such as 2 sovereign of girdle, ear ring weighing 3 gms, two mobile handsets of Samsung and Reliance, Airtel SIM, Passport of the complainant, Aadhar cards of the complainant and his wife, Pan cards of the complainant and his wifeDebit card and credit card of Axis bank that belongs to the complainant’s wife, HDFC debit card of the complainant’s wife, HDFC debit and credit cards of the complainant, SBI credit card of the complainant an amount of Rs.4,000/-, one purse, Holy Bible, new bag, SBI pledge cards etc. were lost.
Complainant had filed petition before the Sub Inspector of Police, Railway police station, Alappuzha on 27-6-19 to forward to Railway police station, Panvel, Maharashtra and there was no action from them.Complainant and his wife paid the ticket fare and the railway authority has obligation to provide peaceful, safe and comfortable journey to all on board. Railway authority is duty bound to provide sufficient protection to the passengers during their journey.Thereis dereliction of service on the part of railway authority, the complainant and his family suffered a lot and they are entitled to get compensation of Rs.5,00,000/- towards loss of above said articles mental agony frustration, difficulties etc.
On 13-8-19 complainant had issued lawyer’s notice to opposite parties No.1 and 2 and a reply was issued stating that the proceedings are going on. It is learnt that they lodged FIR but miserably failed to find out the person who committed the theft.
During that time one sovereign of gold ornaments would fetch Rs.31,500/-. Complainant is entitled to get Rs.4,000/- and the value of gold ornaments along with 12 % interest. Hence the opposite parties may be directed to pay an amount of Rs.80,000/- along with interest to the complainant towards the value of gold ornaments and loss of money. An amount of Rs.4,00,000/- may be allowed as compensation for irreparable loss, mental agony, mental shock, disappointment, frustration etc. to the complainant.
Opposite parties 1 and 2 filed a version mainly contenting as follows:-
None of the staff manning the coaches of train No.12432 express or the staff concerned with the maintenance of AC coaches of this train work under the administrative control of these opposite parties. The alleged incident happened between Vasai and Panvel stations. As such these opposite parties are in no way related to this case. Since the alleged theft occurred at Maharashtra this Forum has no jurisdiction.
The law governing theft falls under relevant provisions of IPC and these opposite parties have no role in dealing with such cases. The petition filed in this case was forwarded to the Sub Inspector of Police, Railway police station Panvel, Maharashtra. Complaint is also bad for non-joinder of necessary parties since the police department is not made a party. As per Sec.100 of Railway Act- Railway administration shall not be responsible for the loss, destruction, damage, deterioration or the non-delivery of any luggage unless it has booked.
The competent Forum to try such disputes is the Railway Claim Tribunal. As per Sec.15 of the Railway Claims Tribunal Act the jurisdiction of this Commission is ousted.Opposite parties denies the allegation of the theft. These opposite parties are not liable to compensate the complainant and hence the complaint may be dismissed with cost.
Though additional 3rd opposite party was impleaded they remained exparte.
On the above pleadings following points were raised for consideration :-
- Whether this Commission has jurisdiction to entertain by the complaint?
- Whether there is any deficiency of service on the part of the opposite parties ?
- Whether the complainant is entitled to realize an amount of Rs.80,000/- along with interest being the value of loss of articles?
- Whether the complainant is entitled to realize an amount of Rs.4,00,000/- towards compensation?
- Reliefs and cost?
Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A9 from the side of the complainant and the oral evidence of RW1 and Ext.B1 from the side of theopposite parties.
Point No.1 to 4
- PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A4. Later Ext.A5 to A9 were also marked.
RW1 is the complaints inspector of Southern Railway. She filed an affidavit in tune with the version and marked Ext.B1.
On 25.06.19 PW1, the complainant along with his wife were travelling from Delhi to Alappuzha in train No.12 432 Rajadhani express. On early morning at about 3 AM when the train passed Vasai road at Panvel, Maharashtra, PW1 found that his valuable articles including gold ornaments, passport, mobile phones, Aadhar card, PAN card etc. which were kept in a bag was lost. He filed a petition before the Sub Inspector of Police, Alappuzha on 27.06.19 and they forwarded the same to Railway police station Panvel, Maharashtra. However inspite of passage of considerable time the culprits were not nabbed and the valuables were not recovered. Hence he has filed this complaint on 18.10.19 claiming an amount of Rs.80,000/- along with interest and Rs.4,00,000/- as compensation for loss, mental agony, mental shock, disappointment, frustration, inconvenience etc. Originally the complaint was filed against divisional railway manger Southern railway and the station master, railway station Alappuzha. They entered appearance and filed a version contenting that the incident occurred at Panvel Maharashtra and so they are necessary party. Accordingly western railway was impleaded as additional 3rd opposite party. However they remained exparte. In the version filed by opposite parties 1and 2 contented that this Commission has no jurisdiction since the incident occurred at Panvel in Maharashtra and only the district Commission at Panvel is having jurisdiction. It was also contented that on getting the complaint the matter was informed to the Sub inspector of police Panvel, Maharashtra and a case was registered there. It was alsocontented the under S.100 of the railway Act this Commission has no jurisdiction to entertain such a complaint and under Sec. 15 of the Railway Claims Tribunal Act it is barred and the complainant has to file complaint before the Railway Tribunal. In such circumstances they prayed for dismissal of the complaint along with cost. Complainant got examined as PW1 and initially Ext.A1 to A4 were marked. Thereafter on 25.10.21 he filed an additional affidavit and Ext.A5 to A9 were marked. The complaints inspector of Southern railway was examined as RW1 and Ext.B1 was marked. The learned counsel appearing for the complainant relying upon the evidence of PW1 and Ext.A1 to A9 pointed out that the case is proved and so PW1 is entitled to get a favorable order. Per contra the learned counsel appearing for the opposite party filed an argument note and contented that for the reasons stated in the version as well as in the chief affidavit of RW1 the complaint is not maintainable before this Commission. It was also contented that the complaint is hit by misjoinder and non joinder of parties and so it is only to be dismissed.
The 1st contention raised is that this Commission has no jurisdiction to entertain such a complaint since the offence was committed at Panvel, Maharashtra. The opposite parties also filed a petition as IA 56/2020 to consider maintainability and it was posted along with the complaint.In this context we are enlightened by the decision of the
Hon’ble National Consumer Disputes Redressal Commission in Chief commercial manager, Southern railway Vs. Subhashini Katkar, II (2003) CPJ 28 at 31Jurisdiction –Suit case stolen in night while train was in motion- Difficult to ascertain where cause of action had arisen. – In the instant case the relevant provision applicable for the purpose of jurisdiction in Sec.11(1) (b), according to which a complainant can institute a complaint in a District Forum within the local limits of whose jurisdiction any of the opposite parties carries on business or has a branch office, inter alia. According to this provision a complaint can be filed in any of the District Forums in whose territorial jurisdiction any railway station lies on the particular route since the Department of Railways carries on its business in its various railway stations scattered all over the country. On this premises the complainant is entitled to file a complaint in the District Forum in whose jurisdiction any of the railway stations from Mumbai to Bangalore are situated.In other complainant is entitled to file a complaint before the jurisdictional District Forum at Mumbai or Sholapur or Bangalore or any other District Forum enroute.
Admittedly the complainant started his journey from Delhi and the destination was Alappuzha. The incident happened at Panvel in Maharashtra. Since the complainant alighted the train at Alappuzha this Commission has got jurisdiction to entertain the case in view of the decision referred above.
Secondly it was contented that there is non joinder of necessary party. Though such a contention is arised in the version it is not mentioned as to who is to be joined as an opposite party. Without taking a contention of non joinder and mis joinder an affidavit is filed by RW1 regarding mis joinder and non joinder. However the learned counsel appearing for the complainant thinking that Panvel comes under western railway impleaded additional 3rd opposite party. However they remained exparte. Infact Panvel is coming under the Central railway. However all the divisions are under Indian railways and so the poor complainant cannot be blamed for not impleading central railway as a party in this case.
Thirdly it was contented that this Commission has no jurisdiction and the parties are to be relegated to Railway Claims Tribunal. But such a contention is unsustainable in view of the decision of the
Hon’ble Supreme Court in Imperia Structures Limited Vs. Anil Patni(AIR 2021 Supreme Court 70) It was held Consumer Protection Act 1986 – The remedies available under the provisions of the CP Act are additional remedies over and above the other remedies including those made available under any special statutes; and that the availability of an alternate remedy is no bar in entertaining a complaint under the CP Act.
So all the 3 contentions taken by the learned counsel appearing for the opposite parties are untenable and we reject the same. Coming to the merits of a case the oral evidence of PW1 coupled with Ext.A1 documents are relied upon by the complainant to prove his case. Admittedly PW1 along with his wife was traveling from Nizamudheen to Alappuzha on 25.06.19 which is seen from Ext.A1 ticket issued by IRCTC. Ext.A2 (A5) is the complaint dated 27.06.19 filed before the Sub Inspector of Police, railway police station Panvel through Sub Inspector of police railway station, Alappuzha. It contains a copy of complaint given to the complaint book with the guard/ conductor guard/work attendant. He has given in detail the items stolen from his possession. Ext.A3 is a copy of lawyer’s notice issued on 13.08.19 to the Divisional railway manager, Southern railway Palakkad claiming compensation. Ext.A4 is the reply notice dtd.27.8.19 issued by the divisional security commissioner stating that it is under investigation. Ext.A6 is a copy of FIR of Panvel police station dated 01.07.09. Though PW1 was thoroughly cross examined nothing was brought out to discredit his testimony. From the side of opposite parties the complaint inspector of Southern railway was examined as RW1 and Ext.B1 was marked. Ext.B1 only shows that western railway is not a necessary party and Panvel station comes under the jurisdiction of central railway. Ext.B1 dtd.30.07.21 was produced before court only along with the chief affidavit of RW1 filed on 21.11.21. if Ext.B1 was produced earlier complainant could have impleaded central railway. So complainant cannot be blamed for not including central railway as an opposite party. In the chief affidavit of RW1 has taken a contention that this Commission has no jurisdiction and the complaint is to be filed before the Railway Claims Tribunal. However on the basis of the decision of Hon’ble Supreme Court reported Supra it can be seen that such a contention is unsustainable.
Admittedly PW1 and his wife were traveling in Rajadhani express which is fully air conditioned. So for each coach there should be an attendant. Besides that RPE personals are also to be present in the coach. From the evidence of PW1 it is seen that there was no officials in the coach. According to PW1 he lost several articles including gold ornaments, passport, Aadhar card, PAN card, cash worth Rs.3,000/-, ATM cards, Holy Bible etc. which is seen described in the annexure of Ext.A2 complaint. It was contented by the learned counsel appearing for the opposite party that the items were not declared. It is true that the items were not declared but there is no reason that PW1 will make a false complaint. The contention of the learned counsel appearing for the opposite parties that railway has no liability to compensate the complainant is also unsustainable in view of the decision of the
Hon’ble Supreme Court in Sumatidevi M Dhanwatay Vs. Union of India (2004 ICO 694- AIR 2004 S.C 2368)It was held – This apart, under Section 124 A of the Railways Act, 1989, the Railway administration cannot escape the liability having regard to the facts and circumstances of the case and in the light of the incident that had taken place.
It was a similar case and according to us the said ruling is squarely applicable in this case.
It was held by the Hon’ble National Consumer Disputes Redressal Commission in General Manager Northern Railway and another Vs Radha Ramnathan in R.P No.1765 of 2017 on 04.02.2019 - We are also of the considered vied that once the passenger takes the ticket and travel by the train it is the responsibility of the railway to see that passenger reaches the destination safely with his luggage and belongings. It is the duty of the railway staff to see that the belongings of the passengers are safe
This view was affirmed by the Hon’ble Supreme Court of India while dismissing SLP (Civil) 1498/2021 on 12.02.2021.
In the complaint PW1 has stated that he lost articles worth Rs.80,000/- including gold ornaments and cash. However no evidence is available to prove the same except the complaint attached Ext.A2. Since no evidence is available regarding the value of articles lost according to us an amount of Rs.50,000/- can be considered as the value of articles lost since they are gold ornaments, cash, ATM cards, passbook, aadhar card etc. Complainant is seeking an amount of Rs.4,00,000/- as compensation from the railway authority. As discussed earlier deficiency of service is evident in this case. Rajadhani being a train fully air conditioned there should be coach attendants in every coach besides the presence of RPF. In such circumstances we are of the considered opinion that the complainant is entitled for compensation and we are limiting the same to Rs.20,000/-. These points are found accordingly.
Point No.4
In the result complaint is allowed in part.
- Complainant is allowed to realise an amount of Rs.50,000/- along with interest @ 9% per annum from the date of complaint ie, on 18.10.19 till realization from the opposite parties.
- Complainant is allowed to realise an amount of Rs.20,000/- as compensation from the opposite parties.
- Complainant is allowed to realise an amount of Rs.3,000/- as cost from the opposite parties.
The order shall be complied within one month from the date of receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 27th day of November, 2021.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt. P.R.Sholy (Member)
Appendix:-
Evidence of the complainant:-
PW1 - Sri. Jijo K.K (Witness)
Ext.A1 - Copy of electronic reservation slip
Ext.A2 - Copy of complaint
Ext.A3 - Copy of lawyer’s notice
Ext.A4 - Copy of reply notice
Ext.A5 - Copy of complaint and list of stolen articles
Ext.A6 - Copy of FIR
Ext.A7 - Copy of lost passport
Ext.A8 - Passport application form and specimen declaration
Ext.A9 - Online appointment receipt
Evidence of the opposite parties:-
RW1 - Smt.Neelima Samuel
Ext.B1 - Letter dated 30.07.2021
// True Copy //
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Compared by:-
