Tamil Nadu

North Chennai

CC/23/2017

Mr.kamal Kumar Maheswary - Complainant(s)

Versus

The General Manager south Railway, - Opp.Party(s)

T.V.Sekar & C.K.Lavanya

04 Jun 2019

ORDER

 

                                                            Complaint presented on:  19.01.2017

                                                               Order pronounced on:  10.06.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL -  PRESIDENT

 

TMT.P.V.JEYANTHI B.A., MEMBER - I

 

MONDAY  THE 10^th  DAY OF JUNE 2019

 

C.C.NO.23/2017

 

1.Mr.Kamal  Kumar Maheshwary,

No.1, 4^th Street, “AA” Block,

Anna Nagar,

Chennai – 600 040.

 

2.Mrs. Meenakshmi Maheshwary,

No.1, 4^th Street, “AA” Block,

Anna Nagar,

Chennai – 600 040.

 

                                                                                   …..Complainants

 ..Vs..

1.The General Manager,

Southern Railways,

E.V.R.Periyar Road,

Park Town,

Chennai – 600003.

 

2.The Claim Officer,

Southern Railways,

E.V.R.Periyar Road,

Park Town,

Chennai – 600 003.

.....Opposite Parties

Date of complaint                                 : 22.02.2017

Counsel for Complainants                    : Mr.T.V.Sekar & Mrs.C.K.Lavanyavathi

 

Counsel for opposite parties                    : Mr.K.Muthamil Raja

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

          This complaint is filed by the complainant to direct the opposite parties  to pay a sum of Rs.10,11,900/- with interest @ rate of 18% per annum and also to pay a sum of Rs.2,00,000/- as compensation for mental agony, stress, strain with cost of complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainants booked their tickets through online on 12.12.2014 and the payment was made through the complainants son’s credit card who lives and carry on business in Chennai for travel from Chennai to New Delhi on 20.01.2015 by train No.12621, popularly known as Tamil Nadu Express in Second AC (2A) class and  also booked return journey tickets on 12.01.2015 for travel on 30.01.2015 to return to Chennai from New Delhi. The complainants had function from January 22 to 25^th January 2015  in different five stars Hotels. The complainants had two big suit cases one green in colour and the other blue in colour of skybag brand travelled by train No.12621 viz., Tamil Nadu Express from Chennai Central to New Delhi and they were allotted Berth Nos.35 and 36 and the complainants suit cases were kept under the lower berth. The said train viz. Tamil Nadu Express which departed on 20.01.2015 at 22 hours was to arrive as per schedule on 22.01.2015 at 7.05 a.m. On 22.01.2015 when the complainants woke  up in the morning at Agra station to their shock and surprise they found both the suitcases were missing. But could not find the articles after a search in cabin. It was brought to the notice of the Train Ticket Examiner.  Both the attendants who were on duty from the beginning of the journey were missing at this point of time. The co-passengers also joined in the search which was in vain. One co-passenger Mr.S.K.Yadav, Manager of Bharat Overseas Bank, Mehrauli Branch, Delhi informed the  complainants and the train Train Ticket Examiner that he got down for having a cup of Tea at Gwalior Station, he saw un identified person getting down from the 2^nd AC coach in which the complainants were travelling with two suit cases of blue and green  in colour. It is very clear that an unauthorized person has been allowed to enter in the 2^nd AC compartment by the attendants and the Train Ticket Examiner and that unauthorized person had the guts to take away two big suit cases belonging to the complainants. Train Ticket Examiner Mr.Rajiv Nigam and attendants whose names are not known to the complainants were negligent and careless. Train Ticket Examiner Mr.Rajiv Nigam asked the complainants to fill up a form in respect of the stolen suit cases and after having reached New Delhi Railway Station, Mr.Rajiv Nigam the Train Ticket Examiner and the complainants went to the GRP Police Station situated in New Delhi Railway Station and filed the police complaint No.20150053 dated 22.01.2015. The complainants state both the suit cases were containing expensive garments, dresses, suits and jewellery suitable for wearing in such high end functions and also other articles required for day to day use.  After filing the complaints the station head GRP Police Station situated in New Delhi informed the complainants that the complaint will be forwarded to Gwalior station for further investigation. Having lost both  the suit cases they were left with nothing except credit cards and a meagre amount and because of such a precarious and embarrassing position due to the negligence and carelessness of the employees of the first named opposite party.  The complainants had no other option except to purchase articles for day to day use some clothes like inner wear and also borrowed clothes  like sarees, pants and shirts and jewellery from close relatives  and managed to attend the functions on 22.01.2015 and as stated above the complainants were in a depressed mood and undergone mental strain, agony and severe hardship. The complainants were put to great hardship and loss, mental agony, strain due to the negligence of the first named opposite party’s employees viz. two attendants and the Train Ticket Examiner who had allowed an unauthorized person in the  2^nd AC (2A) compartment for which the complainants have paid a princely amount towards the ticket which includes IRCTC services changes and service tax amounting to Rs.4,812.47. Both suit cases contained expensive dresses, garments, suits and other day to day requirements. The Rolex watch and waterman brand pen and also sarees, blouses, gold and diamond bangles and pendant sets etc. included other day to day requirements and on the lower side the complainant value the loss their articles together amounting to a sum of Rs.10,11,900/-. The complainant issued a notice on 31.12.2016 through their counsel which was duly acknowledged by the opposite parties. The opposite parties neither paid the amounts demanded nor replied. Hence the complaint.

2. WRITTEN VERSION OF THE   OPPOSITE PARTIES IN BRIEF:

          The complainants had not joined the proper party namely, the Government Railway Police, Gwalior which had investigated the complaint of alleged theft lodged by the complainants under FIR No.20150053 dated  22.01.2015. Security of passengers and their baggage is the responsibility of GRP and the opposite parties do not have any connection with the policing work of GRP.  The opposite parties are therefore not liable for the complainants negligence and the complainants must seek redress by taking suitable steps in accordance with law with GRP only, which has separate organizational structure. As per Section 100 of the Railway Act, 1989 the 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 thereof. In the present case, the suit cases were carried by the complainants in their personal charge and the alleged loss was due to the negligence of the complainants only. For the reasons stated to the complaint is to be dismissed.               

3. The complainants and the opposite parties have come forward with their respective proof affidavit. Ex.A1 to Ex.A14 were marked on the side of the complainants and the opposite parties have not filed any documents.

          4. The written arguments of the complainants and the  opposite parties  were filed and the oral arguments of the both were heard.

5. POINTS FOR CONSIDERATION:

          1. Whether GRP, Gwalior is necessary party to the complainant? 

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complainant is entitled to any relief? If so to what extent?

6. POINT NO :1 & 2   

          The case of the complainants is that they  are non resident  Indians and came to India in April 2014 to meet their kith and kin and to attend  wedding functions to be held in the month of January  2015  at Delhi and  Uttar Pradesh for which they booked the tickets through online on 12.12.2014 for the travel from Chennai  to Delhi on 20.01.2015  by Train No.12621, Tamil Nadu Express in Second AC (2A) and for the return journey on 30.01.2015 from New Delhi to Chennai. The complainants carried two big suitcases one green in colour and the other blue in colour of skybag brand and travelled in the above said train on the specified day in the allotted berth No.35 and 36 . The complainants kept the suitcase under the lower berth.  On 22.01.2015 when the complainants woke up in the morning  at Agra station they found both the suitcases were missing.  They searched in the entire cabin but could not find the same and then it was brought to the notice of the Ticket Examiner and had given complaint before GRP Police station at New Delhi and the same was forwarded to the Gwalior Railway Police Station for further investigation. The complainants contend the loss of their luggage was due to the negligent act of the railways and opposite parties have to compensate the same. The claim is for the suitcases which contained dress materials and expensive jewellery like diamonds Rolex Watch and also  day to day materials to the value of Rs.10,11,900/- and also for compensation for mental agony  and the costs.

07. IRCTC e- Tickets from Chennai to Delhi is Ex.A1 and the return ticket from Delhi to Chennai i.e in Ex.A9,  the registration of FIR at GRP Police Station is Ex.A2 are not disputed. The  proof for the  Scheduled programme  of the complainants  are filed under Ex.A3 to Ex.A8, Ex.A10 to Ex.A13 are the  letters and correspondence through e-mail to railways. Ex.A14 is the notice issued by the complainants through their counsel. There was no reply from opposite parties even after the receipt of the notice and the acknowledgement is filed with Ex.A14.

          08. The complainants suspect that an unauthorized person was allowed to enter during night hours into the AC compartment by the attendants and  the incharge  persons of railway failed to follow their duty as per the rules.  The opposite parties  would contend that Government Railway Police, Gwalior, where the Complaint was lodged by the complainants need be a party to this complaint and the complainants  has to seek remedy before the said police only and as per section 100 of the Railway Act,1989 the railway administration shall not be responsible  for the loss, destruction, damage, deterioration or non-delivery of any luggage unless a railway passenger has booked  the luggage and given receipt thereof and in the present complaint, the suitcases were carried by the complainants in their personal charge.  Hence the alleged loss was because of the negligence of the complainants only.

   09. On the side of the complainants the following citations are submitted and argued.

NATIONAL CONSUMER DISPUTES REDRESSAL

IV (2005) CPJ 57 NC

G.M., SOUTH CENTRAL RAILWAY

VS

R.V.KUMAR AND ANR

the duties of TTE attached to the second class sleeper is reiterated as follows:-

  “He shall check the tickets of the passengers in the coach, guide them to their berths/seats and prevent unauthorized persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers, do not enter the coach.

    He shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required.

   He shall ensure that the end doors of vestibule train are kept locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach.

   He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorized persons do not enter the coach”.

Further, Section 100 of Railway Act,  was pointed out and argued emphasizing the second part of it.

Section 100 of Railway act  provides as follows:

       “A passenger travelling by a train is entitled to carry certain baggage or luggage within permissible limits or 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 of 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 referred section contains two parts in it as put forth by the learned counsel for complainant, the first part deals with luggages booked by passengers and the other part deals with luggages which is carried out by passengers in their charge. So far as the first part is concerned, railway administration is not responsible for the loss, unless it is booked and also the luggages are given receipt. Admittedly, the luggages are carried by the complainants in the present case, not booked and given receipt therefore it comes under the second part of the said section 100 of Railway Act. If so, as per the said section the complainants have to prove that the loss or damage is due to the negligence of opposite parties. Here the two suitcases are kept under the lower berth after the train started at 7.05 P.m, then during their sleep at night it was stolen and the complainants woke up at Agra Station they found the suitcases missing. According to the complainants, they have immediately brought to the notice of the Ticket Examiner about the incident and searched along with co-passangers and also received information from co-passenger that when he got down for having a cup of tea at Gwalior Station he saw two unidentified person getting down from the same AC Coach with two suit cases of blue and green. Both the attenders who were on duty from the beginning of the journey were missing at that point of time. These allegations are not denied specifically by the opposite parties   in their written version. The counsel for complainants notice was not replied even after its receipt by opposite parties.

10. The opposite parties would mainly contend and try to rescue themselves under the shelter of the first part of section 100 Railway Act without distinguishing the later  part of it and it is also further argued on the side of the opposite parties that security of passengers and their baggages is the responsibility of GRP and the opposite parties do not have connection with the work of GRP and the complainants must seek the remedy by taking suitable steps in accordance with law with GRP Police. They have also submitted the following citations.

1. SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

VIJAY KUMAR JAIN

VS

UNION OF INDIA & ANR

The complainants having failed in District Forum and Rajasthan State Commission and National Commission and then he approached Supreme court of India alleging that the complainants occupied berth No.4 in Sleeper Coach S-2 and  placed his articles in berth No.43 because it was not occupied by anybody.  The District Forum and  Rajasthan State  Commission have held that the railway was not responsible  for the goods which are not booked and it was also observed in the referred case  that  the complainants had negligently placed the  luggage in a different berth which is not allotted to the complainants resulting in dismissal of SLP.

11.  Here is a case, where the complainants has not booked the luggage, but carried  their luggage  and kept it under their allotted berth and complainants are trying to prove the negligence of the opposite parties  by pointing out the Negligent activity of the staffs of the  opposite parties,  which falls under the later part of section 100 of Railway Act, for which compensation is sought for. Hence the above referred do not applicable to the circumstances of the present before us.

2.III (2018) CPJ 392 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

UNION OF INDIA & ANR

VS

LAKSIT JOSHI

The complaint stood dismissed because  the theft had occurred  in the morning,  when the train halted at a big station  and the complainant  went to rest room for few minutes leaving the bag i.e. the bag was left unattended, especially when there are instructions  that passengers should not use the washroom when the train halts at a railway station. Therefore the complainant’s allegation of negligence against the railway authorities was not accepted and railway was not held liable. But in the present case, the suit cases were kept under their berth missing of suit cases had happened during night hours and when the complainants got up in the morning they found the suitcases missing.  Hence the fact of this case is not applicable to this case.

12. When the complainants were in sleep, it is the bounden duty of the TTE and the attender to  see that the passengers holding the ticket alone have to get into the coach. The missing of suit cases is certain and proved by registering FIR.  Therefore the railway officials who were on duty at that time had failed  to  perform their duty and they were not vigilant.  This clearly amounts to negligent  as per the  rules, GRP Police need not be a party  since they have the opportunity  to follow up the matter  in case of theft in criminal proceedings. Here the complainants have come forward with the complaint alleging negligence against opposite parties   before this forum for which GRP Police need not be a party and the opposite parties contention regarding the same is not accepted by this Forum.

13. The complainants further submitted the following decision in

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

UNION OF INDIA

VS

Dr. (Smt) SHOBA AGARWAL

(REVISION PETITION NO.602 OF 2013)

The complainants  who travelled in the train in the reserved AC coach lost her grey colour suit case which had been tied under the  berth with the help of chain and lock. As per the allegation of the complainants  the said suitcase had been stolen  by cutting the chain and lock and some suspected person was  seen in the reserved coach at 2 ’clock in the night, FIR was also lodged apart from filing the consumer case alleging the negligence on the part of  Railways. The complainant’s case was accepted against the opposite parties in the District Forum and also State commission and it was observed by the National Commission, and reproduced the following points:

“ A Major responsibility cast on the TTE in addition to examining the tickets is that of ensuring that no intruders enter the reserved compartments. This is certainly a gross dereliction of duty which resulted in deficiency in service to the Respondents.

         The price difference between the unreserved ticket and a reserved ticket is quite high and the traveling public who buy a reserved ticket would expect that they can enjoy the train journey with a certain minimum amount of security and safety.

         One has to presume that passenger would take reasonable care of his luggage. But, he cannot be expected to take measures against intruders getting easily into reserved compartments and running away with  goods, when the railway administration is charged with the responsibility to prevent such unauthorized entry”.

Therefore as pointed out on the side of the complainants, the safe travel of the complainants was shaky,  if the employees of the railways are not vigilant and see that no unauthorized person enter into the AC coaches during night hours. The opposite parties have admitted the theft but not denied the other contentions of the complaint in their written version. The opposite parties have relied  upon first part of  section 100 of Railway Act and also thrown the burden upon the GRP. As discussed in earlier paragraphs, the complainants have proved their contention. As a result it is proved that there is deficiency in service on the part of opposite parties   by not doing their duty and  the complainants were made to suffer by opposite parties.  Point No 1 and 2 are answered accordingly.

 

 

14.POINT NO.3:

It is submitted by the complainants that the lost suitcases contained  very expensive dresses and  Rolex Watch and day to day materials, jewellary like diamonds with other expensive accessories  and the complainants valued it to Rs10,11,900/-.  However, as per the invitations submitted, their preparation for attending the marriages have to be accepted and the cost of expensive dresses  with some ornaments  have to be accepted to a reasonable extent.   The value assessed by the complainants is  not based on any authenticated proof. It is also argued on the side of the complainants that they have not received any intimation from the GRP Police till date. Anyhow non-traceable certificate is not proved by the complainant. Theft is not denied by the opposite parties. Hence this forum is of the view that the complainants need be compensated for their loss due to loss of complainants belongings during their journey. Further  unless managed with difficulties and sufferings  and also  with stress  as expressed by the complainants is accepted by this forum as it happens to a common person. Therefore opposite parties are directed to pay jointly or severally to the complainants a sum of Rs.3,00,000/- together with interest  of 9% as compensation from the date of this complaint till  the date of realization and also to pay a sum of Rs.1,00,000/-  for the stress, hardship and mental agony besides the payment of Rs.5,000/- for costs.                          

In the result, the complaint is partly allowed. The opposite parties jointly or severally are directed to pay a sum of Rs.3,00,000/-(Rupees three lakhs only) to the complainants  with 9%  interest from the date of complaint till the date of relization as compensation for the loss  and also to pay a sum of Rs.1,00,000 (Rupees one lakh only) towards mental agony, stress and hardship  besides a sum of Rs.5,000/- (Rupees five thousand only) for costs.

The above amount shall be paid to the complainants within 6 weeks from the date of receipt of the copy of this order.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 10^th  day of June 2019.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANTS:

Ex.A1 dated 20.01.2015                   IRCTCs e – Ticket Chennai to New Delhi

to 22.01.2015

 

Ex.A2 dated 22.01.2015         Police complaint to the SHO GRP Police Station, New Delhi Railway Station Along with English translation

 

Ex.A3 dated 22.01.2015         Mehendi Invitation Card

 

Ex.A4 dated 23.01.2015         Tikka and Ceremony Card

 

Ex.A5 dated 24.01.2015         Wedding Card

 

Ex.A6 dated 22.01.2015         Program Cards

To 25.01.2015

 

Ex.A7 dated 27.01.2015         Genesh Pooja and other programs and wedding on

to 29.01.2015                            20.01.2015

 

Ex.A8 dated 30.01.2015         Reception Card

 

Ex.A9 dated 30.01.2015         Return IRCTCs e- Ticket New Delhi to Chennai

to 01.02.2015

 

Ex.A10 dated 25.02.2015       First named complainant issued a letter to S.H.O., G.R.P. New Delhi Railway Station with acknowledgement card

 

Ex.A11 dated 11.03.2015       Complainants received e-mail from SHO/New Delhi Railway Station

 

Ex.A12 dated 13.04.2015       First named complainant issued a letter to SHO, GRP Gwalior Railway Station

 

Ex.A13 dated 28.12.2015       First named complainant issued a letter to S.H.O., G.R.P. Gwalior Railway Station, Gwalior with acknowledgement Card

 

Ex.A14 dated 31.12.2016       The complainant’s Counsel issued a notice to opposite parties

                                               

LIST OF DOCUMENTS FILED BY THE   OPPOSITE PARTIES:

 

                                        …….. NIL ……..

 

 

MEMBER – I                                                               PRESIDENT