Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.126/04.06.2019
Mrs. Harleen Kaur w/o D.S. Mehandru,
R/o G-39, 2nd Floor, Naraina Vihar, New Delhi-110028 ...Complainant
Versus
OP1- General Manager, Northern Railway,
Baroda House, Copernicus Marg, New Delhi-110003
OP2- Divisional Railway Manager, Northern Railway,
Delhi Division, State Entry Road, New Delhi-110055
OP3- Divisional Commercial Manager, Northern Railway,
Delhi Division, State Entry Road, New Delhi-110055 ...Opposite Parties
Date of filing: 04.06.2019
Date of Order: 12.07.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Inder Jeet Singh, President
ORDER
1.1. (Introduction to dispute of parties) : The complainant filed this complaint with allegations of deficiency in services as well as negligence of OPs, since the complainant along-with her husband was travelling on their return journey on reserved ticket in AC-II coach and all of a sudden TTE/Railway Staff carelessly opened the all doors of that coach and a person aged about 20 years unauthorizedly and illegally entered the coach and he snatched purse/hand bag (containing cash, I-phone, cash and documents) of the complainant, which was in her care and possession, the culprit jumped out of the moving train and the complainant had chased the culprit to catch him. The complainant’s husband pulled the chain of train, the train stopped too but neither the attendant nor TTE nor RPF personnel helped to the complainant or to catch the culprit. The Railway administration was immediately informed of episode of theft happened , there was negligence on its part and deficiency of services, since it was duty of Railways for safe, secure and comfortable journey as well as safety and security of luggage of passengers. She is seeking redressal of loss of cash, valuables and other relief.
1.2. Whereas the opposite parties opposed the claim that neither there was any deficiency in service nor negligence, apart from the claim is not tenable under the law. The Consumer Commission lacks jurisdiction and also on the subject matter, since such issues comes within the purview of sec. 13(1) of the Railway Claims Tribunal Act, 1987 and Sec. 100 of Railway Act, 1989. The complainant herself is careless and at fault, who had also not followed provisions of certain laws. Thus, she is not entitled for any relief claimed.
2.1 (case of complainant) : The complainant along-with her husband had gone to meet her relation in Mancheriyal (Telengana) on 16.06.2017 by journey in AC-II, Telengana Express, Train No. 12724 (Annexure-C1) and they were on return journey, they were travelling on reserved ticket on AC-II coach A-2 berth 1 & 3 train no. 12723 Telengana Express from Mancheriyal Station to New Delhi Railway Station. It was boarded on 10:15 AM and it was to arrive at New Delhi Railway Station at 9:30 AM on 21.06.2017.
2.2 : When the train was passing through Shivaji Bridge Railway Station, attendant, TTE, Railway Staff present in AC-II coach carelessly opened all doors of coach despite the train was yet to reach its final destination New Delhi Railway Station. The complainant and her husband were on their reserved berth with their luggage, the complainant was keeping safe her purse wrapped around her hand. A person aged about 20 years unauthorizedly and illegally entered the coach and suddenly snatched the purse of the complainant and dragged the complainant upto door of the coach, he jumped out of the moving train in fraction of second with purse snatched. Complainant’s husband shouted for help but neither the attendant, nor the TTE nor RPF personnel present at the gate of coach came forward for help nor they tried to nab the said culprit, who got off the train when it was moving at a very slow speed. The complainant in order to protect her purse and to catch the thief, she also jumped out of slow moving train to chase the thief, but she lost her balance and fell down on the railway track of other side, she was exposed to serious risk/injury.
In the meanwhile, complainant’s husband pulled the chain of the train and got down to bring back the complainant in train. No public person or security personnel or attendant present from Railway department came to help the complainant. Instead because of stop of the train, the Coach Attendant behaved rudely to the complainant and her husband. When complainant complained of theft, the RPF personnel on board asked to lodge the complaint at PS New Delhi Railway Station.
2.3. The complainant was traumatized by the incident, on reaching the Railway Station, she filed formal complaint which was registered as FIR No. 600/2017 (Annexure-C2).
The purse/hand bag of the complainant was containing (a) One Apple I- Phone, Make 2016 worth Rs. 55,000/-, (b) Cash Rs. 5,50,000/- (c) Driving License, (d) Aadhar Card (e) Debit Card Oriental Bank of Commerce, (f) Credit Card HDFC Bank, (g) Office Identity Card, North DMC, (h) Registration Certificate of Car No. DL 9CAD 6856 (Honda Brio), (i) Cheque Book Oriental Bank of Commerce. She also lodged an FIR on the website of Railway by email, somehow, its hard copy could not be taken nor the complaint was noted down. The incident of snatching had taken place due to gross negligence on the part of railway staff ensuring safety and security of passengers and, their luggage. There is also failure on the part of Railway in dealing with the complaint. There was gross negligence and carelessness when the doors of AC-II tier coach were opened, that too while the train had not reached its destination. She suffered mental agony apart from the other losses she suffered because of Railway and staff negligence.
2.4. The complaint also explains other subsequent circumstance faced that when complainant had applied to obtain certain information under RTI [board chart, names of complainant & he husband with boarding record etc.], the record was not made available rather it was asked to take the total record at heavy fee payable (which was not even required by the complainant); the complainant had also filed copies of those queries and responses advising the complainant in what manner the record is to be obtained or the record was transferred to other place as well as the fee payable ( this complete detail is not required to be mentioned in this Order, since it is matter pertaining to RTI vis-à-vis the relief claimed in complaint pertain to loss of theft during journey in the train).
Moreover, in order to fortify her claim, she refers ‘General Manger, North Central Railway Vs. Dhirender Kumar Rai RP No. 2343/2013 (decided by Hon’ble National Commission), in reference to applicability of sec. 100 of the Railway Act; Station Superintendent, North Western Railway and three others Vs. Jasmin Mann (RP no.3047/2017 dod 15.12.2017 by Hon’ble National Commission) that loss has occurred to the passenger due to negligence or mis-conduct on the part of Railway Administration or on the part of any its servants, it comes within the exception carved out in the later part of sec. 100 of the Railway Act, 1989. The amount alongwith interest was awarded.
2.5 That is why the complaint against OPs to pay a sum of Rs. 6,0,5000/- [i.e. cash of Rs.5.50,000/-towards loss of cash and Rs.55,0000/- in lieu of I-Phone], compensation of Rs. 1,00,000/- towards inconvenience and hardship suffered by the complainant on account of loss of important and valuable documents, further compensation of Rs. 1,00,000/- towards mental agony part from costs and appropriate order.
3.1 (case of OP) : The OPs protested the complaint that the consumer Fora lacks jurisdiction on the subject matter, since the power lies with Authority (i,e. the Claims Commissioner ) u/s 13 (1) of the Railway Claims Tribunal Act, 1987. The reply also refers sec. 100 of the Railway Act, 1989. In fact, incident had occurred due to carelessness of the complainant. The gates of train were to be made available, before the arrival of train at platform of Railway Station Shivaji Bridge, which is at Eastern side of Railway Station. The acts done by the Railway is not their negligence but it is part of their duty since they performed duty for the convenience of the passengers. The complainant is bad for mis-joinder of OPs. The complainant failed to disclose specific cause of action against the OPs, as the subject train does not comes under the administrative control of other OPs.
Moreover, as per the guidelines of Income-tax Department in amendments of 2017 a person cannot do transaction of more than of Rs. 2,00,000/- whereas, the complainant was carrying huge cash, which is against the provision of IT Act. Since the complainant was also carrying other valuable/articles, the same were in her possession, it was her responsibility to take care of the same. Otherwise, she had not booked her purse/luggage nor declared it before the Railway or its staff. The complainant was charged partially ticket fare of 57% being subsidize fare. The complaint is abuse of process of law and there is no merit in the complaint.
3.2 The written statement are also denies other allegations of complain with regard to its staff, attendant, TTE, RPF and others that the registration of FIR was within the purview of police authority, being criminal matter in nature and it is not civil matter, the present complaint are like objections against untraced report. Otherwise, the RPF available has rightly advised to report the matter to police, then how it can be construed deficiency in service. The complaint deserves dismissal.
4. (Replication of complainant) : The complainant filed detailed replication to the written statement of OPs and the complainant opposed allegations of written statement, apart from making certain explanation, that the present consumers Fora has jurisdiction to try the complaint. The complainant also took exceptions to OPs’ plea in written statement to deny own responsibilities and trying to shift it to others, whereas it is duty and legal obligation of OPs to provide security and safety of passengers & their luggage and appropriate care during journey of the passenger. The complainant is a consumer, she is covered under the provision of the Consumer Protection Act and the present Fora has jurisdiction on the subject matter . The OPs are properly impleaded in view of the nature of complaint. They are no merits in the written statement. The complaint is correct.
5.1 (Evidence of parties and submissions) : The complainant led her evidence by filing her affidavit along with documents, which were filed with the complaint, while supplementing the facts in detail about the episode happened during journey. Further, complainant's husband's cousin Sh. Gurdeep Singh Mahandru also led evidence, for complainant, to the effect he had withdrawn cash from his banks and the cash was given to complainant to fulfill her monetary need, his affidavit is accompanied with summary of accounts with ICICI Bank and of Axis Bank to show the withdrawal of money.
5.2 On the other side OPs led evidence by filing affidavit of Shri Ajay Kumar, Div Commercial Manager DRM Office, it is replica of written statement in compact form, while referring section 13 (1) of the Railway Claims Tribunal Act, 1987 and Sec. 100 of the Railways Act.
5.3: Both parties have filed their written arguments, followed by oral submissions. Sh.Sahib Gurdeep Singh, Advocate for complainant and Sh. Utkarsh Singh Sisodia, Advocate for Sh. Rajiv Ranjan, Advocate for OP made the submissions. The rival contentions of the parties are not repeated here, the same will be discussed appropriately.
6.1: (Findings) : The rival contentions of both the sides are considered, keeping in view the statutory provisions of law, case law and material on record. Since many issues have emerged, it is appropriate to deal with them point-wise.
6.2.1: (Point of jurisdiction of subject matter)- According to opposite parties, the jurisdiction is strictly within the power of the Chief Commissioner to deal with the issue of luggage in terms of Railway Tribunal Act read with the Railway Act and none else. There is provision of carriage by Railways and the complainant had not entrusted the article/purse to the Railway, therefore, the complaint is not maintainable. Moreover, Railway administration will not be responsible unless loss etc is due to negligence or misconduct on its part or on the part of its servant (reliance is placed on decision dated 02.07.2013 in SLP no. 34738-34739 Vijay Kumar Jain case).
Whereas, according to complainant, the jurisdiction lies with the Consumer Forum/Commission as there was deficiency of service and negligence on the part of Railways, which is covered by the Consumer Protection Act, 1986. It is not disputed that the complainant was a passenger against reserved ticket in the coach and the incident of forcible theft happened during the journey, she is consumer too.
6.2.2: The situation is considered. Section 100 of Railways Act, 1989 is about responsibilities of Railway Administration as a carrier of luggage. Luggage is also defined u/s 2(23) of the Act, 1989 as "luggage means the goods of a passenger either carried by him in his charge or entrusted to railway administration for carriage. Section 2(9) defines 'consignment' means goods entrusted to railway administration for carriage'. To say, the OPs' plea carries on weight that all luggage is to be entrusted to Railways Administration, the personal luggage is equally covered under the responsibilities of Railways. In Union of India vs Sanjeev Oil Sukhrai Dave 1 2003 CPJ 72 (NC), it was held that luggage may be those which were entrusted to Railways as carrier or it may be personal luggage carried by the passenger. Secondly, there is no bar under the Railways Tribunal Claims Act, 1987 to file complaint under the Consumer Protection Act, 2019. Thirdly, in Deputy Chief Commercial, Manager Eastern Railways Vs Dr KK Sharma and others 2000 III CP 1 (NC), it was held that sections 13 and 15 of the Railways Act 1987 did not take away jurisdiction of the consumer Fora to decide question of services. It provides additional remedy to customers. Fourthly, section 3 of the Act 2016 is also abundantly clear that provisions of the Act, 1986 are in addition to other laws in force and not in derogation thereto. Thus, it is clear that so far consumer disputes regarding services or deficient services or negligence are concerned, the consumer forum has power to deal with such consumer disputes. Accordingly, it is held that the Consumer Commission/Fora has jurisdiction on the subject matter to try the complaint in respect of deficiency of services.
6.3.1: (Point of territorial jurisdiction)- The other rival contention of OPs is on the point of territorial jurisdiction as well as the address of OP1 is Baroda House, Copernicus Marg, New Delhi. Further, the incident had not happened within the local area of Consumer Fora at Delhi Central District, it lacks territorial jurisdiction.
According to complainant, she boarded the train from Mancheriyal (Telengana) and reached her nearby to arrival point New Delhi Railway Station, when the theft incident happened. Moreover, complainant explains that the cause of action had happened within the journey and addresses of two OPs are of State Entry Road, New Delhi, it is within the area of Police Station, Paharganj, New Delhi, which is covered within the Central District of this Commission, the present consumer forum has territorial jurisdiction to try the complaint.
6.3.2: By looking at the circumstances of episode, the complainant had boarded the train from Mancheriyal and immediately prior to reaching New Delhi Railway Station, when the train was nearby Shivaji Bridge, the incident that happened. By boarding the train from Mancheriyal (Telengana) and reaching at the destination, New Delhi Railway Station, there is a continuity of the journey, the episode had happened in between departure place and the arrival destinations, but OPs are concentrating that in case the event was at/nearby Shivaji Bridge, then the jurisdiction will not be made out.
Whereas, in the situations like journey or series of events, the cause of action will be treated in continuation within the two points/places of journey. In Manju Kumar versus Indian Railways CC No. 260/2014 dod 19.10.2016 (NC), in that case of theft, the complainant had purchased a ticket from New Delhi, the train was also boarded from New Delhi Railway Station for Banglore and it was held that part of cause of action arose in New Delhi and Commission has jurisdiction to try the complaint. The circumstances of present complaint are not exception to it, therefore, this Consumer Fora/Commission has territorial jurisdiction to try the complaint, as the destination was New Delhi Railway Station. Moreover, the office of two OPs is also situated within the jurisdiction of this Commission. On both counts, the OPs’ plea does not sustain. Accordingly, this contention of opposite parties stand disposed of.
7.4 (Whether complaint is bad for mis-joinder OPs?) : The OPs have objections of mis-joinder of OPs in the present complaint, but how, it has not been explained. The joining of all the OPs are on the basis of entire episode explained. The complaint does not suffer from mis-joinder of parties, it is also decided against the OPs.
7.5.1: (Whether or not complaint is a consumer?): There is another rival plea as complainant contends that she is consumer since services were being rendered by the OPs. Whereas, the OPs deny these allegation. The complainant had completed the journey, no fault in the services were suggested. The incident had happened because of complainant's own carelessness.
7.5.2: The answer of this issue lies in definition of 'service' under clause (o) of section 2 of the Consumer Protection Act, 1986, which include 'transport services' specifically. It does not need of further elaboration, it is held that the complainant availed services of the OPs, the complainant is a consumer within the purview of the Consumer Protection Act, 1986.
7.6.1: (point of criminal FIR)- According to OPs, once criminal FIR has been registered, it is within the area of Magistrate to deal with the same and the complaint is as if allegations against untraced report. It cannot be construed negligence or deficiency of services on the part of OPs. There is also variance in the statement of complainant given to the police, which was recorded in the FIR, to be a simple case of theft but in the complaint many more facts are mentioned that the complainant was dragged up to the door of coach, she has chased the culprit, fell on other track and so on. This shows that she herself was careless and negligent to take care of her own purpose/hand bag.
Whereas, according to complainant, prior to registration of formal FIR, there was Railway staff, TTE and RPF and at the time of incident none came forward to help and nab the culprit. The FIR was registered to apprehend the culprit through law and try as per law, since the culprit ran away with the valuable and cash of complainant. It does not mean that registration of FIR will exonerate the OPs from their liabilities, obligations and duties towards the passengers and their luggage for security and safety during journey. The complainant had narrated the incident of theft that her purse was forcibly snatched by the culprit, who entered into the coach immediately after opening of all the doors by the TTE and others. The FIR in brief [immediately after incident when complainant was scared], is not a substantive piece of evidence but it has corroborative values (reliance is placed on Magesh and ors. Vs. State of Karnataka MANU/SC/0314/2010).The incident explained in complaint and in evidence is corroborated by the FIR.
7.6.2. The registration of FIR, being cognizable offence and allegations for deficiency of services are not mutually exclusive in nature, therefore, there is substance in the submission of complainant and the same are decided against the objection of OPs.
7.7.1. (reg. of carrying of cash and valuables)- According to OPs the complainant was carrying huge valuable inclusive of cash, whereas Income-tax Act does not permit for such type of transaction involving huge cash. It is opposed by the complainant that specific evidence of Sh. Gurdeep Singh Mahendru has been filed, who withdrew cash from his account in two Banks in Telengana, Andhra Pradesh and he has also deposed that the same cash was handed over to the complainant to meet her financial needs out of the amount withdrawn from the banks. It was the cash, which was snatched besides other valuables.
7.7.2. The circumstances establish are leaning towards the plea of complainant, since the source of cash has been disclosed through the witness with documentary record of withdrawal of amount from the bank. The OPs took the stand that there cannot be transaction of such huge amount, the complainant has not mentioned any transaction for which amount was received but it was borrowed from the relatives. So far other valuables are concerned, it also does not bar by law to carry by a person during journey, in fact some of them are of day to day use. The plea raised by OPs does not sustained.
7.8.1. (remaining issues)- So far other aspects and features of the case are concerned, on one side the complainant complains of negligence & deficiency of services since during the train journey, theft with force took place immediately after opening of the doors of the coach by the attendant and Railway staff present and the culprit forcibly took away purse/hand bag of the complainant, which was wrapped on the hand of complainant, she was dragged upto the door, however, none came forward to help her. She also chased the culprit, who had jumped from the train. Moreover, it is also matter of safety and care of luggage & of passengers/public, who generally travel in the Railways.
Whereas on the other side OPs plead strongly that it is false complaint as well as no event had happened as alleged, apart from the Railway Administration takes care of all passengers and carriages given to the Railway Administration. It was complainant herself who was careless and negligent to take care of her belongings. No luggage was entrusted to Railways Administration.
7.8.2: There is an occasion to go through Union of India Vs Anjana Singh case dod 22.07.2014 by NC that though passenger ought to be careful with their belonging while on trains, Railways too is liable to protect them.
The complainant was very much conscious about her belonging, she wrapped her purse/hand bag around her hand as the complainant along-with her husband was preparing of for about to arrival of the train at the destination and to de-board the train at New Delhi Railway Station and in the meantime incident happened immediately on opening of doors of coach by the attendant, Railway staff/GRP/RPF/TTE. She had also been taking care of her belongings throughout in the journey. Moreover, the complainant was being dragged from her berth towards the door but culprit managed to jump from the moving train along-with belonging of the complainant, none came forward to stop or apprehend the culprit. It was complainant who chased the culprit but non else. Therefore, it makes out the case of deficiency of services as well as negligence of OPs, during journey in the train there is obligation of the Railways/ OPs to provide security and safety to the passengers as well as to their luggage, which may be personal luggage or other luggage entrusted to the Railways being carrier of luggage. There is no material established that as to how the complainant was careless or negligent to take of her luggage, the OPs could not prove its plea.
7.9.1: Thus, the complainant has established her case against OPs of negligence and deficiency in services to the complainant as her personal purse/luggage was stolen with force, when she was carefully in possession thereof, during her journey against reserved ticket and she had kept her luggage/bag under her constant control. Had there been no negligence or deficiency in services on the part of OPs, there would be no such incident. There is no other contrary evidence to deny the values of article being carried by the complainant during her journey, therefore, the complainant is held entitled of reimbursement of loss of cash of Rs. 5,50,000/- and value of Apple I Phone make 2016 of Rs. 55,000/- (i.e. total Rs.6,0,5000/-) against OPs.
7.9.2: The complainant is also seeking relief/compensation of Rs.1,00,000/- for inconvenience for loss of documents and sufferings, apart from additional compensation of Rs.1,00,000/- towards harassment and mental agony for this cause; considering the circumstances the damages are quantified as Rs. 20,000/-, for both counts, in her favour and against the OP.
7.9.3. The complainant has also sought costs and other appropriate relief, the costs is also quantified as Rs. 5,000/- in favour of complainant and against the OPs.
10. Accordingly, the complaint is allowed in favour of complainant and against the OPs, to pay jointly and/or severely a sum of Rs. 6,05,000/- apart from compensation/ damages of Rs.20,000/-, besides cost of Rs. 5,000/- within 30 days from the date of receipt of this order.
In case OPs do not pay the amount within the aforementioned period of 30 days, then OPs will be liable to pay interest @ 6% pa on amount of Rs.6,05,000/- from the date of filing of complaint till realisation of amount.
11. Copy of this Order be sent/provided forthwith to the parties free of cost as per Regulations.
12. Announced on this 12th July 2023 [आषाढ़ 21, साका 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
