IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
DATED THIS THE 31stDAY OF MARCH 2021
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.No.119/2017
Eswari A., Aged 37 years,
W/o Subramanian,Kattumadathil House,
Ayyarkulangara, Puzhavaikulangara,
South Gate, Vaikom P.O., Kottayam 686 142. : Complainant
(By Adv.Jayan M.S. &Adv.Sreeraj R.)
V/S
- The General Manager,Southern Railway,
George Town, Chennai,
Tamilnadu 600003
(By Adv.S.Dileep Kumar)
- The Manager, Railway Station,
Quilon Junction, Kollam 691 001.
(By Adv.S.Dileep Kumar)
- Sub Inspector of Police,
Railway Police Station, Kollam 691001.
(By Adv.S.Dileep Kumar) : Opposite parties
ORDER
Smt.Sandhya Rani, B.SC, LLB, Member
This is acase based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.
The averments in the complaint in short are as follows.
On 17.01.2014 the complainant,Iswari,along with her family members were travelling in Chennai-EgnoreGuruvayoor Express Train No.16127 from Thirunelveli to Kottayam. The complainant was sitting in the track side seat when the train reached at Kollam Railway Station by 00.55 hrs. When the train moved from the station one man came along the railway track in opposite direction snatched two gold chains from her neck and ran away. The chains snatched were having weight of 13 ¾ sovereigns worth Rs.2,75,000/-. The accused was taken into custody by the railway police hardly within one hour of the theft but theycouldn’t recover the stolen gold chains from him. Thereafter a case was registered against the accused alleging offence U/s 379 and he was remanded. Though the complainant approached Railway police several times she didn’t get any information from opposite party regarding the recovery of her stolen gold chains. Finally charge sheet was laid and the same was taken into file as CC 296/2014. But ultimately the case was closed on 31.08.2016 by the CJMC, Kollam on the ground that the accused is no more. Though the accused was taken into custody the opposite parties could not recover the valuables belonged to the complainant. Hence there is deficiency in service on the part of opposite parties who are General Manager, Indian Railways, Chennai Division and Kollam Railway Station Manager and Kollam Railway Police Station Sub Inspector. They are responsible for providing smooth and safe journey for any rail passenger in their premises and they are jointly and severally liable to safeguard the life and property of passengers in their premises. The untoward incident occurred in the premises of opposite parties shows that there exists deficiency in service on the part of opposite parties. Due to the above said deficiency of service experienced the complainant had to face mental agony as well as irreparable financial loss. The complainant claims the value of the gold ornaments amounting to Rs.2,75,000/- and Rs.2,00,000/- as compensation for mental agony caused due to the deficiency in service experiencedfrom the opposite parties and cost of the proceedings. Though the complainant sent Advocate Notice to the opposite parties 1 to 3 on 07.03.2017 they have not responded. Hence the complaint.
According to the opposite parties there is no valid proofs like ticket to show that the complainant was a passenger in train No.16127 Chennai-EgnoreGuruvayoor Express as on date 17.01.2014 and also the thief never entered inside the train for commission of theft. Another contention made by them are the complainant was seated close to the window and also by keeping window openduring the night hours by exposing gold ornaments without keeping proper care and caution. Again contended that the alleged snatching would have been avoided if the complainant had taken proper care while sitting adjacent to windows by keeping window shutters kept closed. Moreover the opposite parties are not liable or responsible for snatching of gold through the windows of the train. According to the opposite parties they were given intensive awareness programmes regarding antisocial elements in trains as well as in railway premises. Again contended that the windows of reservation compartments are expected to be closed in night hours and here the alleged snatching occurred by keeping the window shutters kept open. However due to the timely intervention of the Railway Authorities the accused was apprehended onthe very same day but the stolen articles could not be recovered by the investigating agencies though the accused has been interrogated by therm. But later on the accused died due to illness during 2016 while he was undergoing trial in CC 296/2014 of CJMC, Kollam and the case was closed on the ground that the accused no more. Thereafter the complainant filed this complaint with ulterior motive with intend to achieve unlawful gain without any authentic evidence to substantiate her complaint. Opposite parties are not bound to compensate the complainant because the alleged snatching and closing of the above case were occurred not due to any lapse, deficiency in service or omission on the part of the opposite parties but it was happened only due to the negligent act on the part of the complainant. Hence the complaint is liable to be dismissed in liminewithheavy compensatory cost to the opposite parties.
In view of the above pleadings the points that arise for consideration are:
- Whether there is any deficiency in service on the part of opposite parties 1 to 3?
- Whether the complainant is entitled to get the value of gold ornaments and compensation as claimed?
- Reliefs and costs?
Evidence on the side of the complainant consists of oral evidence of PW1.Ext.P1 to P6 and P7 series documents were marked out of which P2 marked subject to proof.Evidence on the side of opposite parties consists of oral evidence of DW1.Both sides filed notes of arguments and heard both sides.
Point No. 1 and 2
The complainant herself has been examined as PW1 and filed proof affidavit by reiterating the averments in the complaint and marked Ext.P1 to P6 and P7 series documents out of which P2 marked subject to proof. Ext.P1 is the Journey cum Reservation Ticket dated 16.01.2014. Ext.P2 photograph showing stolen gold chains marked subject to proof . Ext.P3 photocopy of First Information Report in CC 296/2014 issued by Railway Police Station, Kollam dated 17.01.2014. Ext.P4 is the copy of order dated 31.08.206 in CC 296/2014 of CJMC, Kollam. Ext.P5 is the Enquiry Report issued by Superintendent of Police Railways, Thiruvananthapuram dated 24.04.2014. Ext.P6 is the copy of Advocate Notice dated 07.03.2017. Ext.P7 series are Acknowledgment cards.
DW1 is one VinodG.Nair, Inspector/RPF/Official Ernakulam South. He deposed regarding the safety measures taken by the railway to safeguard the security of the passengers.
Admittedly on 17.01.2014 the complainant was travelling in Chennai Egnore-Guruvayorr Express train from Thirunelveli to Kottayam, along with her family members. She was sitting in the trackside seat and when the train reached at Kollam Railway Station by 00.55 hrs. At the time when the train started to move from the station one man coming along the railway track in opposite direction snatched two gold chains from her neck through the window and ran away. The chains snatched were having weight of 13 ¾ sovereigns worth Rs.2,75,000/-. Even though the railway police arrested the accused within one hour they couldn’t recover the stolen gold chains from him. Thereafter he was produced before CJMC, Kollam and registered a case against him as CC 296/2014 and he was remanded to police custody for interrogation and recovery but the stolen away gold chains could not be recovered. However the case was closed after 2 years and 8 months ie.on 31.08.2016 on the ground that the accused is no more.
According to the complainant all the opposite parties are responsible for providing smooth and safe journey for any rail passenger in their premises and also they are jointly and severally liable to safeguard the life and property of the passengers. According to PW1 though the complainant approached Railway Police several times to enquire about the recovery proceedings she did not get any information from the opposite parties.
Ext.P5 is the enquiry report dated 24.04.2014 transmitted by Superintendent of Police Railways in response to the letter sent by the complainant as per Right to Information Act it is stated that they have experienced several investigative techniques with the help of Dog squad, finger print beuro sending notice to every gold shops in Kollam and Thiruvananthapuram district U/s 54 CrPC and taken mobile phone call records of the accused etc. but so far they could not recover the stolen ornaments . The Inspector railways responsible to recover the stolen articleassured that he will file petition before Hightech Mobile Cell, Thiruvananthapuram for collecting call details ofthe accused from his mobile phone in their custody and the stolen gold ornaments will be recovered and the report concluded by assuring that he has no objection to hand over the stolen articles to the complainant as and when it is recovered. It is also stated in the report that inspite of their best effort for about 4 months the alleged gold chains snatched away from the neck of PW1 could not be recovered and they would make earnest attempt to recover the same with in few months. But nothing were recovered even after 2 and a half years were over. Actually what happened is that the case is closed on 31.08.2016 on the ground that the accused is no more.
If the opposite parties had continued the remaining recovery steps as stated in Ext.P5 report no doubt that the recovery would have been completed before closing CC 296/2014 as on 31.08.2016 on the ground of death of the accused
The main contention made by the opposite parties in their written version as well as in the argument notes is that the theft took place only due to the exposition of the gold ornaments by sitting near an open window especially during night hours.
The opposite parties are not bound to compensate the complainant because the alleged theft occurred not on account of any omission or laps on the part of opposite parties but it is due to the negligence of the complainant. But according to the complainant the above said contentions raised by the opposite parties are not acceptable because they are responsible for providing smooth and safe journey for any rail passenger in their premises and also they are jointly and severally liable to safeguard the life and property of the passengers.
Learned counsel for the opposite party by relying on the dictum laid down by the National Commission in UNION OF INDIA, INDIAN RAILWAY& 4 ORS V NAND KISHORE (order in Revision petition No.1335/2017 dated 23.03.2018) has argued that the two gold chains worn by the complainant were snatched away by some unknown persons(thief) from out of the compartment through the window, therefore the opposite parties are not liable since it is not due to any deficiency in service on the part of opposite party . The learned counsel for the opposite party would further contended that Indian Railway has taken all possible measures for a safe journey. In this connection it is worthwhile to point out the oral evidence of DW1 in this regard which reads“ In fact the victim passenger was sitting adjacent to the windows keep the windows open and exposing her gold chain. There is no security laps on the part of the Railway in the particular incident. The incident occurred due to the reasons beyond the control of Railways. No security laps or any deficiency in service is attributable against the Railways. RPF guards are being deployed throughout day and night in Railway premises for the protection of passenger. All the windows of the compartments of all the trains were properly working as on those days.”
It is also to be pointed out that within one hour RPF have arrested the person who snatched away the gold ornaments was interrogated and has made earnest attempt to effect recovery U/s 27 of Indian Evidence Act but they could not effect recovery of the same as police custody was over by 3 days. It is also clear from the Ext.P5 that RPF has made earnest attempt to effect recovery of the stolen articles but they couldn’t. In the circumstances we are constrained to disagree with the case of the complainant that opposite parties have not attempted to prevent the theft and also effect recovery of the gold ornaments and therefore we are of the view that deficiency in service cannot be attributed against the opposite parties.
It is further to be pointed out that even though Ext.P1 ticket would indicate that the seat allowed to the complainant is not window side seat and which was allotted to a male member aged 44. The complainant has chosen to sit over the window side seat which is against the rule of railway reservation ticket. If she was sitting in the allotted seat the snatching away of her valuable gold ornaments would have been avoided. It is clear from the oral evidence ofPW1 coupled with statements before police that she has violated reservation ticket rules and seated at the window side seat that too by opening the windows at the dead of night. It is also brought out in evidence that she was sitting in a window side seat exposing her gold ornaments so as to facilitate snatching the gold ornaments through windows. It is also clear from the available evidence that she has noticed the thief coming through the railway track at the midnight hours in such circumstances she ought to have close the door of the window or else she has to shift the seat and occupy the inner side seat No.95 allotted to her. She has not done so though she noticed the arrival of the thief through the railway track towards her. In view of the materials on record we have no hesitation to hold that the theft of gold ornaments took place due to the negligent attitude of the complainant and also due to her non occupation of the reserved seat allotted to her.
Therefore we find no merit in the complaint and the same is only to be dismissed. Points answered accordingly.
Point No.3
In the result the complaint stands dismissed.
No costs.
Dictated to the Confidential Assistant Smt. MinimolS. transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 31stday of March 2021.
E.M .MUHAMMED IBRAHIM:Sd/-
S.SANDHYA RANI:Sd/-
STANLY HAROLD:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:-
PW1 :Iswari
Documents marked for the complainant
Ext.P1 : Journey cum Reservation ticket dated 16.01.2014 class II,
fromThirunelveli to Chertalai
Ext.P2 : Photograph showing two gold chains
Ext.P3 : Copy of FIR dated 17.01.2014 crime No.08/2014
Ext.P4 : Order issued by CJM court, Kollam in CC 296/2014 on the ground that
the NBYY returned stating the accused no more hence charge abated and
file closed dated 31.08.2016, Kollam Railway Police Station
crime 08/2014 U/s 379 JPC.
Ext.P5 : Enquiry report issued by Superintendent of Police, Railways,
Thiruvananthapuram
Ext.P6 : Advocate Notice
Ext.P7 series : Postal Acknowledgment cards
Witnesses Examined for the opposite party:-
DW1 : VinodG.Nair, Inspector/RPF/Office Ernakulam South
Documents marked for opposite party:-Nil
E.M .MUHAMMED IBRAHIM:Sd/-
S.SANDHYA RANI:Sd/-
STANLY HAROLD:Sd/-
Forwarded/by Order
Senior Superintendent
