Sri Utpal Kumar Bhattacharya, Member
Being aggrieved with the Judgment and order no. 23 dated 18/10/2017 dismissing the Complaint Case No. CC/13/632 passed by the Ld. District Forum, Kolkata I (North), the Appellant/Complainant filed the instant Appeal challenging the said order.
Brief fact of the Complaint Case was that the Appellant/Complainant purchased sleeper class reserved tickets for his journey dated 18/05/2013 along with his family members from Puri to Howrah in Puri—Howrah superfast Express. He was travelling in Coach No. 5. The Complainant, after boarding, found some unauthorized persons in his reserved compartment. He brought the matter to the notice of the TTE and sought from him the Complaint Register to record his complaint but, the TTE ignored his request.
The train, which, as already mentioned, was a superfast one, stopped most unusually at Dantan station, an unscheduled stoppage on the route. Thereafter, when it started moving, an unknown person standing on the platform snatched a black coloured bag containing valuable articles like gold chain, cash, mobile phone, some medicines etc. from his possession through the window. The Complainant’s effort to stop the train pulling its chain went in vain. No police help was found forthcoming when he raised a hue and cry in the compartment immediately after the incident.
An FIR in respect of the incident was lodged after reaching Howrah station with the GRP, Howrah. The officer-in-charge Kharagpur GRP was also informed on the same day through Howrah GRP. The Appellant/Complainant, being convinced that he was subjected to a great loss due to the deficiency in rendering services by the Respondents/OPs, filed the complaint case before the Ld. District Forum. Praying for 1) Rs. 80,000/- towards the cost of snatched materials along with interest @ 18% 2) Rs. 50,000/- as compensation for the mental agony that the Appellant/Complainant had to sustain because of the deficiency of their rendering services and 3) a litigation cost of Rs. 15,000/-.
The Appellant/Complainant did not make any verbal submission. He only prayed for considering his BNA as his submission.
Perused the BNA filed by the Appellant/Complainant wherein, after narrating the incident in brief, the Appellant/Complainant focused on the salient points.
- The chain of the compartment was not found in order. The Appellant/Complainant, immediately after the incident pulled the chain to make the train stop before taking acceleration. His effort went in vain as the chain was not found functional.
- The train fair was inclusive of the charges for safety and security of the passengers and the luggage which the railway authority was absolutely indifferent of as there were no RPF or GRP personnel accompanying the train.
- The request for making good the inoperative light in the berth area of the compartment was not heeded to by the TTE, in spite of request.
- The incident took place at Dantan Railway Station which was not a scheduled stoppage. The TTE did not attend the Appellant/Complainant although it was a fact that the Appellant/Complainant raised alarm immediately after the incident had taken place.
- The TTE did not produce before the Appellant/Complainant the log book, guard Book or Complaint Registrar to record his complaint.
- The Ld. District Forum considered reply to the questionnaire put to the Respondent/OP No. 3 after hearing of argument was over.
- The Respondent/OP Nos. 1 and 2 cleverly avoided giving reply to the vital questions put to them by the Appellant/Complainant in his questionnaire. The Ld. District Forum, as contended, made a major mistake by delivering the impugned judgment and order without obtaining replies to the questionnaires from the Respondent/OP Nos. 1 and 2.
The Appellant/.Complainant, in his BNA, relied on the decision passed by this commission in A/48/2016 [The Eastern Railway Fairlie Place, BBD Bag, Kolkata Vs Naushad Khan] wherein this Commission had referred to certain important decisions of the Hon’ble National Commission and Hon’ble Supreme Court relating to the theft of baggage in the train compartment and some other cases which prima facie appeared to be of relevance to be recorded here.
In the matter of G.M, South Central Railway—Vs—R.V Kumar and Anr, reported in 2005 CTJ 862 (CP) (NCDRC), the Hon’ble National Commission, while dealing with an issue relating to the loss of luggage, held, “A passenger travelling by a train is entitled to carry certain baggage or luggage within permissible limits of weight, free of cost. There is no question of entrusting such baggage/luggage to the Railways and getting a receipt thereof. If a loss takes place of such a luggage, Railways can be held responsible provided that there is negligence on the part of Railways or any of its servants, provided, of course, that the passenger himself has taken reasonable care of his personal baggage as expected of a prudent person”.
The said order of this commission also left mention of the observation of the Hon’ble Apex Court in Sumati Devi M. Dhanwatay—Vs—Union of India and Ors, reported in II (2004) CPJ 27 (SC) : 2004 (3) Supreme 291 which says, “Railway Administration cannot escape its liability for negligence and deficiency in service in failing to prevent unauthorized persons assaulting passengers in railway compartment and taking away their luggage”.
There was further reference of the observation of the Hon’ble Apex Court relating to the loss in a goods train in Union of India—Vs—Udho Ram & Sons as under:
“It may be true that any precautions taken may not always be successful against the loss in transit on account of theft, but even so evidence should be offered with respect to the extent of the precautions taken and with respect to what the Railway Protection Police itself did at the place, where the train had to stop. It must be taken to be the duty of the Railway Protection Police to get out of the Guard’s van whenever the train stops, be it at the railway platform or at any other place. In fact, the necessity to get down and watch the train when it stops at a place there would be some persons in whose presence the miscreants would not dare to tamper with any wagon and any tampering to be done at a station is likely to be on the offside”.
The above decisions, as was apparent, contradicted the provisions laid down under Section 100 of the Railway Act defending the railway authority from any kind of liability for the theft articles of the passengers from the railway compartments.
The Ld. Advocate appearing on behalf of the Respondent/OP No. 1 and 2 submitted that there were grounds for being suspicious about the happening of the alleged incident as there was no eye witness of the incident. The bag said to be containing the valuables was not booked with the railways observing the railway norms. The articles, therefore, were to be kept under the custody of the passenger himself rendering the railway authority free from any kind of liability so far as the loss of the said un-booked articles are concerned.
As contended, the claim of the Appellant/Complainant appeared to be the sole evidence to have any idea about the allegedly snatched articles. In absence of the booking certificate issued by the railway authorities in respect of the lost articles, it was, as further contended, difficult to ascertain as to whether the subject bag at all contained the valuables as claimed.
As the Ld. Advocate continued, the Appellant/Complainant submitted that the subject bag was snatched from him through the window. It was peculiar that the bag containing so many valuable items was so carelessly kept within the reach of the miscreants standing in the platform enabling him to take it, rather snatch it through the window.
Ld. Advocate, in the context of his submissions as above, referred to the decisions of the Hon’ble Apex Court in special leave to Appeal (Civil) Nos. 34728 and 34729/2012 [Vijay Kumar Jain- Vs—Union of India and Anr.], the decision of Hon’ble National Commission in RP No. 1916 of 2014 [The East Coast Railways and Anr.—Vs—Kadambari Rama JogaRao and Anr.], decision of the Hon’ble Commission in Revision Petition No. 3265 of 2014 [Dinesh Agarwal—Vs—Indian Railways and two others] etc. In all the cases, the Hon’ble Apex Court and the Hon’ble National Commission laid emphasis on section 100 of the Railway Act, 1989 which read, “ Responsibility as carrier of luggage—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 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 of misconduct on its part or on the part of any of its servants.” and which determined the fate of the cases in favour of the rail authorities.
With the submission as above the Ld. Advocate prayed for the dismissal of the Appeal.
Ld. Advocate appearing on behalf of the Respondent/OP No. 3 submitted that the allegation made against his client is totally fabricated, exaggerated and misleading.
As he continued, the staff mentioned (a), (b), (c), (d), (e) and (f) at para 1 of “grounds of Appeal” were all related to railway authority. There was, therefore, no authority for GRP to encroach upon the domain of activities of railway personnel. The Respondent/OP No. 3 had no role to ensure safety and security inside the railway compartment which was controlled entirely by the Railway Protection Force (RPF).
The contention of the Appellant/Complainant towards not deputing any police personnel on the place of occurrence by the Respondent/OP No. 3 also did not hold good as the security coverage of the train was not supposed to be provided by the GRP, rather, the superfast trains were supposed to be escorted by the RPF.
As he continued to submit the Appellant/Complainant failed to produce the IMEI No. of his stolen mobile. As contended further, he did not even respond to the call of the Investigating Officer for appearing before him for identification of the accused.
The Ld. Advocate denied any liability of his client as the charges brought against his client were all false and fabricated and prayed for the Appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record and considered submissions of the Appellant/Complainant and Ld. Advocates appearing on behalf of other participating sides.
While considering the facts in issue, we found that some of the charges leveled against the Respondents/OPs in the complaint were supported with no evidence to take cognizance of the alleged offences. Say for example, the issue of presence of unauthorized passengers, improper lighting in the berth space, non-functioning of the chain in the subject reserve compartment which, In absence of any evidence or any complaint lodged on the spot or recorded in any complaint book, only led to an endless controversy of one alleging other refuting without the same being resolved for want of any concrete evidence other than the hearsay ones.
The sudden halt of a superfast train at a non-scheduled location/station cannot be any justified allegation as the trains should halt at any place unless signal was given to it to pass through. After all, the safety of the passengers, not goods, was and should be the prime concern of the railway.
It was peculiar that the black bag said to contain the valuable articles were snatched from the Complainant by an unidentified person standing on the platform through the window. Since the act of snatching was specifically mentioned in the complaint, it might be construed that the act was committed when the person from whom the bag was snatched was in senses.
It sounded peculiar in the circumstances narrated above that a bag said to contain valuable articles worth of around Rs.80,000/- as claimed, should be kept so carelessly within the reach of the miscreants standing on the platform to lift it through the window. The Appellant/Complainant’s carelessness in the incident of alleged theft or snatching could not be ruled out.
Since the bag and the articles said to contain therein were not booked, the railway was not supposed to know what valuables exactly were there in the bag and what should be their approximate value. Moreover, the valuables were carried by the passenger concerned in his own custody and risk making the railway authority free from any kind of liability as per provision of Section 100 of the Railway Act, 1989.
What only we are concerned about was the railways’ insensible decision of carrying passengers in a superfast train at dead of night without being guarded by the RPF. Running page 27 (annexure P-8), being the communication dated 12.08.2013 made to the Appellant/Complainant in response to his complaint by the Assistant Secretary, Commissioner, (P.S. HQ) RPF, South Eastern Railways, GardenReach, Calcutta 43 revealed that there was no guarding in the train on the very day. Whatever may be the case, it came apparent on analyzing the details of the entire incident the Appellant/Complainant himself was more liable for the loss of his bag containing the valuables.
Moreover, while arriving at the conclusive findings we place our reliance of the Hon’ble National Commission in Revision Petition No. 1335 of 2017 [Union of India and Ors.—Vs—NandKishor] reported in III (2018) CPJ 395 (NC) wherein, while disposing of the Revision Petition setting aside the decisions of the Fora below, the Hon’ble National Commission at para 9 of the said order observed, “On careful consideration of record, it is clear that the theft of chain was undisputedly committed by a person who was outside the compartment and not inside the same. As the miscreant had snatched the chain through the window, the Railways cannot be held responsible for not ensuring the safety of the passengers inside the coach. Both the Fora below have failed to appreciate this aspect and wrongly held the petitioners guilty of deficiency in service in not preventing the theft. The impugned orders, therefore, cannot be sustained.”
Keeping reliance on the aforesaid decision of the Hon’ble National Commission and also in consideration of the facts and circumstances of the case, we are constrained to hold that the railway authority should not be held guilty of the charges of deficiency as alleged in the Complaint and accordingly, the impugned Judgment and Order does not deserve any intervention from this end.
Hence,
Ordered
that the instant Appeal stands dismissed. Impugned Judgment and Order stands affirmed. No order as to costs.
