Punjab

StateCommission

CC/721/2017

Satnam Singh - Complainant(s)

Versus

The G.M. Northern Railway - Opp.Party(s)

Arvind Sehdev

27 Mar 2018

ORDER

2^nd Additional Bench

PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

Consumer Complaint No.721 of 2017                  

  Date of institution : 23.08.2017       

                                                        Date of reserved    :  13.03.2018

                    Date of decision:       27.03.2018               

Satnam Singh age about 52 years s/o  Sh. Bhagat Singh r/o Garhi Mohalla, Ward No.11, Urmar Tanda, Teh. Dasuya, Dist. Hoshiarpur, Pin Code-144204 (Punjab)                            

                                                                                       …..Complainant

Versus

1. The General Manager Northern Railway, Baroda House Railway Bhawan, New Delhi.

2. Divisional Railway Manager Ambala Cant Railway Junction, Distt. Ambala Haryana.

3. The Station Master, Ambala Cant Railway Junction, Distt. Ambala Haryana.

4. The State Master Railway Station Hoshiarpur.

                                                                                  .....Opposite parties.

                                      Complaint under Section 17 of the

                                      Consumer Protection Act, 1986.

Before:-

          Sh. Gurcharan Singh Saran, Presiding Judicial Member

          Sh. Rajinder Kumar Goyal, Member

 

Present:-

          For the complainant                 :         Sh. Abhishek Bhateja, Advocate

          For opposite parties                :         Sh. S.K. Sahore, Advocate  

         

 RAJINDER KUMAR GOYAL, MEMBER

                                                ORDER

                   Complainant has filed this complaint against the opposite parties (hereinafter referred as OPs) under Section 17 of the Consumer Protection Act 1986 (for short the Act) on the averments that the complainant reserved a railway ticket on 31.05.2017 bearing PNR No.2432324404 in sleeper class in Train No.14012 Hoshiarpur- Delhi Express  for journey on 05.06.2017 from Hoshiarpur to Ambala Cantt. The complainant is an agriculturist by profession and for agricultural purposes and to repay the Bank KCC limit loan availed by him, was in need of money. The complainant had his ancestral gold jewelry against which he was to avail gold loan from Mannapuram Branch at Ambala. The complainant earlier also borrowed gold loan from Mannapuram Branch at Ambala. The complainant disclosed that he has even filed his wealth tax return regarding the same with the income tax department.

2.                The complainant boarded the train from Hoshiarpur on 22:10 PM on 05.06.2017 for Ambala. As the Journey progressed the complainant felt tired and sleepy. The train halted at Phagwara and Ludhiana Railway Station. The compartment of the complainant was reserved but the doors of the boggy were not shut. The complainant heard loud, noise and commotion at railway station phagwara & Ludhiana and number of persons entered the boggy without reservation. The complainant there after had a nap as it was night time and when the destination station i.e. Ambala Cantt was near, the complainant woke up and found his light hand bag containing gold ornaments missing. The complainant immediately searched for the TTE but he was not there, then the complainant inquired about TTE of the coach from the fellow passengers who told the complainant that he was not seen after Phagwara Railway Station. That some miscreants stole the gold ornaments of complainant between Sirhind & Rajpura railway stations. Particulars of the property stolen along with estimated weight :-

(a) Hand bag containing, gold ornaments gold bangles weight per piece 2.5 tolla quantity 24 total weight 60 tolas.

(b) Golden setsweight per piece 5 tolas qty. 10 total weight 60 tolas.

(c) Golden faced gokhras weight per piece 5 tolas qty 12. Total weight 60 tolas.

(d) Lion faced gokhras weight per piece 2.5 tolas qty 24. Total weight 60 tolas.

(e) Kanthas weight per piece 7 tolas Qty 8. Total weight 56 tolas.

(f) Nose rings weight per piece 2.5 tolas Qty 8 weight 20 tolas.

          All these items were 22 carat Gold. 3060 grams yellow colour in weight total 86 pieces, yellow coloured old ones hereditary gold.
3.                When the train halted at Ambala Cantt. Railway Station complainant rushed to GRP Police Post at Railway Station, but found nobody was there. The complainant was informed that he can file a complaint online to Indian Railways but no cyber café was opened at that time. As the train departed the complainant stared back journey and reached Ludhiana. He located a cyber café and reported the theft incident on what’s app No.9454404444 by cyber café Ludhiana. The ops took no action. The complainant also got issued a legal notice dated 14.06.2017 to Ops but no reply to the same was given by the Ops. After approaching the Ops for a considerable time, the OP registered a zero FIR and sent a letter to the complainant but till date no worthwhile action has been taken and the jewelry of the complainant has not been recovered till date.   The complainant has suffered owing to the negligence and grave deficiency in service on the part of Ops due to which complainant suffered a huge loss. Hence, the present complaint with the following prayer:-

(a

(b) To pay compensation to the complainant Rs.5,00,000/- due to deficiency in service on part of opposite party resulting in huge loss of mental harassment and tension suffered by the complaint.

(c ) Pay the complainant Rs.55000/- on account of legal expenses.

4.                Upon notice opposite parties appeared through their counsel and filed their written statement wherein Ops took preliminary submissions that the present complaint is liable to be dismissed on the ground of non-joinder of necessary parties. The FIR No.0128 dated 06.07.2017 under Section 379 IPC was lodged at Sirhind, with the GRP (Government Railway Police) and the investigation in the above said FIR is still under progress. The complainant has failed to implead GRP as OP in the present complaint. Any criminal offence which took place in the train is investigated and dealt with by the GRP.  In the present case, the investigation of the theft was required to be done by the GRP. There is no deficiency in service on the part of the Ops. The word “service” under Section 2(o) of CPA 1986 includes only those articles which are paid facilities and not those which are free of cost.  The complainant in the present case is alleged to have carrying the suit case with him for which he had neither booked the same nor paid any charges for taking along with complainant while travelling. Therefore, the complainant do not fall within the definition of consumer under CPA 1986. The alleged theft which has not occurred due to negligence or deficiency of the railways rather it is carelessness and negligence of the complainant. The railways is responsible for booked luggage. The train was having adequate security/guard. The TT was duly available in the coach. The alleged theft was neither brought to the notice of the TT nor the complainant lodged any complaint in the complaint book with the TT. The goods were not booked with the Ops. In these circumstances, it has been held by the Hon’ble Supreme Court of India in the case of Vijay kumar Jain versus UOI; SLP (Civil) No.34738-34739/2012 decided on 02.07.2012 that the railways cannot be held responsible for the goods which are not booked. On merits, it was admitted that the complainant got booked the journey vide PNR No.2432324404 for journey on 05.06.2017 from Hoshiarpur to Ambala Cantt. All other averments made in the complaint were denied in toto and finally prayed to dismiss the complaint with costs.

5.                To prove his case, the complainant tendered into evidence affidavit of Sh.Satnam singh, complainant dated 30.01.2018 as Ex.C-1 along with photocopies of documents i.e. Train Ticket as Ex.C-1, statement of loan containing 8 pages (colly) as Ex.C-2, return dated 16.12.2016 and 20.04.2017 as Ex.C-3 (colly), complaint as Ex.C-4, legal notice dated 14.06.2017 along with postal receipt as Ex.C-5, letter dated 22.07.2017 along with postal receipt as Ex.C-6, letter dated 25.07.2017 along with postal receipt as Ex.C-7, FIR dated 06.07.2017 as Ex.C-8, medical record (Colly) as Ex.C-9 and close the same on behalf of the complainant. Ops tender in evidence, affidavit of Sh. Kamaljot Brar, Senior Divisional Security Commissioner/RPF, Northern Railway, Ambala dated 28.10.2017 as Ex.Ops-A and closed the evidence on behalf of the opposite parties.

6.                It was argued by the counsel for the complainant that the complainant travelled from Hoshiarpur to Ambala to get a Gold loan from Mannapuram Bank Branch at Ambala. On the way the train stopped at Phagwara and Ludhiana railway stations from where unauthorized persons boarded in the reserved compartment which was not shut from inside. And the said persons took away the bag containing the gold ornaments weighting 3060 grams. As the complainant was tired and sleepy he came to know only short of Ambala that the gold ornaments which he was carrying have been stolen by some miscreants. The complainant immediately look for the TTE but the co-passengers were told  him that the TTE was not seen after Phagwara Railway Station. On reaching Ambala the complainant look for the GRP but could not found anybody there. Also the station master was also not available  at the station. The complainant was informed that he can file a complaint online to Indian Railways. But no cyber café was open at that time. As the train departed the complainant started back journey and reached Ludhiana. The complainant located a cyber café and reported the theft incident. No action was taken by the railways. After pursuing the matter with Ops for a considerable time, the GRP registered a zero FIR but till date no worthwhile action has been taken and the jewelry of the complainant has not been recovered till date. Had the TTE and the GRP would have been present at the spot the complainant would have recovered his jewelry in time. The complainant has suffered owing to the negligence on the part of Ops. The counsel prayed to   allow the complaint with the reliefs as stated in the complaint.

7.                The counsel for the respondents/Ops argued that the complainant has failed to implead GRP as one of the OP in the present complaint. He further argued that Railways have no control over the working of GRP and it is independent of Railways in its role and working. Any criminal offence which took place in the train is investigated and dealt with by the GRP. He further argued that as per Section 100 of the Railway Act 1989, Railway is not responsible for the loss, destruction, damage or non-delivery of the unbooked luggage. In the present case the complainant is alleged to have been carrying a suit case with him which he had not neither booked nor has paid any charges to the OPs. Therefore, complainant do not fall within the definition of consumer. He further relied upon the judgment of the Hon’ble National Commission in the case of Chief Station Master, South East Railway versus Mamta Aggarwal decided on 12.09.2017 that the Railways cannot be held responsible for the goods which are not booked with it. He further stated that an FIR was registered at Shirhind Punjab with the GRP and investigation under the said FIR is till under progress by the GRP. He finally stated to dimiss the complaint with costs.

8.                In view of the above discussion, two issues are emerged i.e. whether the theft had actually took place , and if it is so, whether Indian Railways are responsible for the same. Regarding the first issue the complainant has not placed any evidence  to prove that the theft of the gold jewelry took place during the train journey from Hoshiarpur to Ambala. No statement/affidavit of the co-passengers of taking place the theft  has been placed on record. No complaint was got registered with the TTE or train guard or with station Master or GRP on the day of theft. The statement of complainant that nobody was available on the day of theft. As per affidavit Ex.Ops/A it has been stated by the Senior Divisional Security Commissioner/RPF Northern Railway Ambala that the TT was duly available in the coach. The alleged theft was never brought to the notice of TT nor the complainant had lodged any complaint with the TT. The complainant submitted his online complaint on 07.06.2017 at 11.41 PM although the alleged theft took place in the train  near Sirhind Station in the intervening night of 05- 06.06.2017 . He would have lodged the complaint on 06.06.2017 itself. The complainant was negligent during the journey as he slept and could not keep watch on his precious belongings. If he was having worth Rs. 85.00 lacs jewellary articles, he should not have slept or he would have travelled in day time & not alone. There is no record if the complainant has taken any transit Insurance. 

          Regarding the second issue that even if it so, that theft had taken place whether  Indian Railway is responsible for the same. We are supported by a judgment of Hon’ble National Commission in the case of Chief Station Manager, South East Railway vs. Mamta Agrawal decided on 12.09.2017 wherein Hon’ble National Commission has observed that

“7.  The main ground taken by the Railways is that under Section 100 of the Railway Act, 1989, a 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 gave the receipt and in that case also, it should be proved that such loss/damage, etc. was due to negligence or misconduct on the part of the servants of the Railway Administration. In the present case, no such booking was made with the Railways Act etc. are application in the matter. In this context, this Commission has expressed its view on the provision of Section 100 of Railway Act in Revision Petition No.4098 of 2014, Union of India & Ors. Rama Shanker Misra & Anr., decided on 07.08.2015. In Union of India vs. Sanjiv Dilsukhrai Dave & Anr., I(2003) CPJ 72 (NC); Southern Eastern Railway Vs. Ku. Bharati Arora, I(2004) CPJ 114 (NC); Union of India & Anr. Vs. Anjana Singh Chauhan, IV (2014) CPJ 198 (NC). Therefore, in our view in the present case there was no negligence attributable to any specific employee.

         

8. On the basis of the foregoing discussion, we do not find any deficiency in service on the part of the railway officials. The order passed by both the for a below are clearly perverse in the eyes of law and, thus, are set aside. We allow the revision petition and consequently dismiss the complaint with no order as to costs.”

 

9.                In the present case, also no luggage was booked with the railways and there is no receipt of railways having paid any charges to any railway employee for the bag/suitcase booked by the complainant for the journey from Hoshiarpur to Ambala. Therefore, there is no deficiency in service on the part of Indian Railways.

10.               Sequel to the above, we find no merit in the complaint and the same is hereby dismissed with no order as to the costs.

11.               The complaint could not be decided within the statutory period due to heavy pendency of the Court cases.

12.               Copy of the order be communicated to the parties as per rules. 

 

 

                                                                     (Gurcharan Singh Saran)

                                                                   Presiding Judicial Member

                                                                  

March   27 2018                                           (Rajinder Kumar Goyal)

PK/-                                                                       Member