BEFORE THE DISTRICT CONSUMER     

       DISPUTES REDRESSAL FORUM, DHARWAD.

                        COMPLAINT NO.85/2016     
 

Date: 28^th  day of February, 2017

   P r e  s e n t: 

Smt.C.H.Samiunnisa Abrar, B.A., LLB   :  President

Sri.B.S.Keri, B.A., LLB (Spl)                  :   Member

JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Parties (herein after referred in short as OPs) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OPs.

2.    The brief fact of the case is that the Complainant and his family members boarded Rani Channamma Train No.16589 at Bangalore on 21.07.2015 at 9.00 PM. The complainant had reserved a sleeper class seats in Bogi No.B1. They were proceedings from Bangalore to Belgavi to attend an engagement ceremony of complainant’s nephew. Since the function was traditional, the complainant had taken his golden ornaments in a small bag further Complainant submits that there were 18 number of golden ornaments worth Rs.15,37,000/- and one Nokia mobile worth of Rs.6,000/- which was kept in a jewelry bag bearing SIM No.9822483885 and other documents like Aadhar Card, ATM Debit Card, two spectacles, medicines, one silver statue total worth of Rs.15,67,000/-.

3.      Further, complainant submits that on 22.07.2015 in between 3.00 AM to 5.00 AM some unknown miscreants entered the Reserved A.C. Compartments in which the complainant was travelling along with his family members. The bag containing jewelry and other things were lifted. The T.C./T.T.E. who was in-charge of the said compartment were on legal duty to restrain the unauthorized person entering the compartment without any reservation. The negligency of T.C./T.T.E., the theft had occurred.

4.      Further, complainant submits that the above incident of theft was intimated to the T.C./T.T.E. who refused to take the complaint and complainant somehow compelled the T.C. to note down some of the items which were subject matter of the theft. After this incident, the complainant was totally upset, hence he could not give the details account of subject matter of theft. Further as per the complaint, complainant submits that he had lodge a complaint in Hubli Railway Police Station on 22.07.2015. F.I.R. has been registered bearing Crime No.0072/15 for the offence punishable u/s 379 of I.P.C. Still the investigation was going on, but Ops have failed to find the culprits. The complainant allegations are that he have reserved the sleeper coach for their safety and the T.C./T.T.E. has to check the tickets of the passengers and it is bounded duty to prevent unauthorized person entering the coach and  The door of the coach is to be locked when the train is moving and open them up for passengers as and when required and he should also ensure that the end doors of vestibule trains are kept locked between 10 PM to 6 AM to prevent outsiders entering the coach are remain vigilant particularly in the night time and ensure that intruders, beggars, hackers and unauthorized person do not enter the coach.   

5.      Further, complainant alleges that due to the negligency and deficiency rendered by the railways the complainant has lost his articles worth Rs.15,67,000/- and faced physical and mental torture, the Ops are liable to pay Rs.17,67,000/- along with the compensation.

6.      Further submits that after lapse of sufficient time, Railway Police have failed to find out the culprits the complainant issued a legal notice to the OP No.1 on 19.02.2016 calling upon him to pay Rs.17,67,000/-. The notice was duly served to OP NO.1 on 22.02.2016 they neither with replied nor complied the same. Therefore, the complainant is constrained to file this complaint against the OP.

7.      The complainant submits that he had filed some of the documents on behalf of his case and some Receipts are misplaced when shifted from Goa to Bangalore for his medical treatment and not been able to trace-out them. Some of the ornaments belong to the daughter in law of Complainant which has been gifted by her parental house. Hence, complainant prays to award a sum of Rs.17,67,000/- with interest at 15% p.a. with costs.   

8.  The predecessor on seat registered the Complaint and notice were ordered as such OPs appeared through their advocate and filed their Vakalat and Written Version. 

Brief facts of the Written Version of OPs:

The Complaint of the Complainant is neither maintainable in law nor on facts of the case. The Complainant has not impleaded necessary Ops. The GM, Southern Railway, Chennai is not at all a necessary party as the said train in which the alleged incident said to have taken place does not at all run in the jurisdiction of that Railway Zone. In the circumstances with regard to implement of proper parties, the Complaint filed in this Hon’ble Forum is in violation and non-compliance of the provisions of Sec. 11 (2) of the Act and hence the Complaint is liable to be dismissed.

9.      Ops further submitted that the above named Complainant has travelled along with 02 other family members by train No.16589 of 21.07.2015 in B1 Coach by birth No.57, 60 and 63 Ex Bangalore to Belgaum and other allegation made in Para No.2 to 9 of Complaint are false, baseless, hence denied. Similarly the other averments that the OP is vicariously liable, etc. to pay Rs.17,67,000/- towards valuables, mental agony, physical torture etc. is equally denied as being false, malicious and misconceived besides being mischievous. The Complainant is put to strict proof of allegations of negligence, deficient service and vicarious liability on Railways and hence deny any liability on Railway.

   10.        The Complainant’s admission, it is clear that the Complainant had lodged a Complaint with the police. Once the matter is decided to be a criminal offense, that offense has to be investigated by police and the involvement of Railway in the matter does not arise. Moreover, the Police or GRP is the State Police, deputed to check criminal acts within the Railway premises which is a separate establishment not connected in any way with the working of the Railway.

11.    Further, OP submitted that in every coach it is engraved that passengers are responsible for their luggage and Railway are not responsible for loss of luggage and the Complainant has allegedly lost valuable luggage while performing journey, which was neither declared nor booked with the Railway.

12.    OP further submits that as per Para 506.1 and 506.2 of Coaching tariff No.26, Part 1 Vol. 1, all articles taken into the carriage are carried at entire risk of the owner. Similar provision exists in section 100 of Railways Act 1989, with regard to loss, destruction, damage, deterioration or non-delivery of any booked luggage and in the case of luggage carried by the passenger in his charge, the burden of proof lies on the passenger to prove negligence or misconduct on the Railway servants for loss, destruction, damage or deterioration. In the instant case, the Complainant is making wild allegation of negligence on the TTE, without producing any proof. All those allegations are based on surmises and conjectures on the list of duties entrusted to the TTE, which do not have an iota of truth. Only because he seems to have lost his valuables, allegations of negligence and deficiency has been made against the Railway, despite the fact that FIR was caused through the TTE, none of the other passengers in the coach have lodged any Complaint of negligence or deficiency.

13.    The OP further submits that along with Complainant other passenger were also traveling in the same train and coach and there was no other Complaint about missing of luggage. While traveling with huge amount of golden ornaments, the Complainant ought to have been more vigilant and more careful. As alleged in Par NO.4 of the Complaint, the incident is narrated as if the Complainant was an eye witness for the offense against his self. When he noticed the miscreants entering the coach he could have complained to TTE, but he has not done that. Missing of his luggage is purely his negligence and several possibilities are there for missing of luggage. Since Railways do not take any declaration from the Complainant nor checks baggage before entering the coach, the Railways cannot be made responsible for acts and deeds of the passengers. Hence, the Complaint is totally baseless as there is no negligence on the part of Railways. The Complaint is filed with malafide intentions and to gain undue benefit. Therefore, the Complainant is put to strict proof of his allegations.  

14.    The cause of action has arisen to file this Complaint before this Forum, as the alleged incident is as admitted by the Complainant, a criminal offense and therefore the matter has to be decided in an appropriate Forum having jurisdiction. No culpable negligence can be alleged on Railways, since the incident is not covered under the provisions of the above mentioned coaching tariff or under the Railway. OP further alleged that the Railways or its employees were not at all within the knowledge of whatever personal luggage Complainant was carrying. Hence, for all these reasons, the Complaint is not maintainable, as viewed from any angle and hence liable to be dismissed.

15.   In the background of the above said pleadings, the Complainant filed his affidavit and produced documents which are marked as EX C1 to C21. The documents are as follows:

On the other hand, Ops filed the Written Version and one K.Anil Kumar, S/o Krishnan P.O. working as Sr. Divisional Commercial Manager, SWR, Mysore Division filed Chief Affidavit and filed the one document of the Report submitted by the Coach attendant TTE dated:20.06.2016.

On perusal of above documents and arguments heard on both the sides, the points arises before us for adjudication are as follows:

      Our Answer to the above Points are:-

Point No.1 – Affirmative,

Point No.2 – Partly Affirmative,

Point No.3 - As per the final order.

16.    On consideration of pleading, objection, evidence, documents and arguments of the parties, we answer the above points as under:

 R E A S O N S

 17.  POINT NO.1 and 2:  Since the Point No.1 and 2 are identical and to avoid the repetition of the fact we consider both the points together for discussion.

18.    According to the Complainant he was traveling in Train No.16589 from Bangalore to Belgavi along with her wife and daughter in law with a baby by obtaining a reservation in Bogi NO.B1 seat Nos.67, 60 and 63 on 21.07.2015 to attend the engagement ceremony of his nephew at Belgavi. As stated in the Complaint, early in the morning on 22.07.2015 in between 3.00 AM and 5 AM some unknown miscreants entered the reserved AC Coach and lifted a blue bag of the Complainant containing the valuable like gold ornaments original I.D. Cards, ATM Debit Cards, Two spectacles and a small statue of Mangalgouri with silver face. In total worth of Rs.15,67,000/-.

19.     The Complainant reported the theft to the T.T.E. after initial reluctance he received the Complaint due to the shock the Complainant could not give the detail account the subject matter of the theft, on the same day he lodged a Complaint at Huballi Railway Police Station with the detailed account of stolen goods.

20.      The counsel of the OP opposed the claim and stated that passengers are responsible for their luggage and the Railways are not responsible for the loss of alleged goods. The Complainant had not booked nor declared the valuable to the railways authorities.

21.      The learned counsel for the OP relied the provision of Sec.100 of Railways Act under which the railways cannot be held liable for compensation.

22.         The order of the National Consumer Commission in its Judgment of this Commission in a similar case including those of G.M. South Central Railway V/s R.V. Kumar and another which has been produced by the Complainant the Hon’ble Commission clearly explained the difference between goods and luggage as per the Railways Act, 1989 goods and luggage are two different things defined separately under Clause (19) and (23) respectively and Sec. 2 of said Act explained regarding of these clauses shows that the word ‘luggage’ means baggage carrying personal belongings of the passengers. Further, luggage can be carried by passengers himself or entrusted to the Railway Administration for carriage. Goods means containers, pallets or sub-articles of transport use to consolidate goods and animals it appears that ‘goods’ cannot materials in the/ nature of Merchandise and does not include personal affect or provisions u/s 13 (1) (a) of Railway Claims Tribunals Act, the tribunal has jurisdiction to try the disputes related to the responsibility of the Railways Administration as carries in respect of claims of compensation for loss destruction, damage or non-delivery of animals or goods entrusted to the Railways administration carried by railways. The word used by the legislature in section 13 (1) (a) (i) are goods has expressly and specifically included “luggage”. Thus under the above section the Railway Claims tribunal has jurisdiction to try and entertain the claim for loss etc. Only of goods entrusted to Railway Administration for carriage by the railways. In the present case, the luggage was carried by the Complainant themselves and was not entrusted to the Railway Administration for carriage by railways. Hence, it is the absence of entrustment of luggage, the railway claims tribunals have no jurisdiction to try and entertain the disputes.

 23.        The counsel of the OP had submitted that as per Para 506.1 and 506.2 of coaching tariff No.26 part No.1 Vol. 1 all the articles taken into the carriage are carried at entire risk of the owner. Similar provision existing in Sec.100 of Railways Act, 1989.

 24.      In the above cited case, the Hon’ble National Commission has observed that Sec. 100 is divided into two parts, one part deals with luggage booked by the passengers and other part deals with the luggage which is carried out by the passengers in his charge. The second part of the Sec.100 provides that the passengers travelling by a train is entitled to carry certain baggage or luggage within a permissible limit of weight free of cost, there is no question of entrusting such luggage/baggage to the Railways and getting receipt thereof.

25.         Further, the learned counsel of OP submits that the TTE had performed the duties allotted to him.

26.         The duties of T.T.E. is to check the ticket of the passengers and keep the vigil in the coach that intruders entered the coach and he shall ensure that the door of the coach are keep locked while train is moving and that the end of the doors of the vestibules trains are locked between 22:00 and 06.00 hours.

27.         The price difference between reserved and unreserved is quite high in the train passengers buy the reserved tickets expecting pleasant and safe journey.

28.      Since there was a failure on the part of the T.T.E. to prevent the entry of unauthorized person entering in the reserved Bogi.

29.     Here, the main issue rises before us, that the claim of the Complainant is to be look into. Here Complainant had produced photos and invoice to show that the Complainant has carried the jewelry with him worth of Rs.15,37,000/- On carefully scanning the documents on records produced by both the parties the complainant, it is admitted fact that Complainant had travelled on 21/07/2015, while arguing the matter the learned counsel for OP submitted that the complainant had mentioned less articles in the complaint lodged with the TTE in the running train, and the complaint lodged with the railway police Hubli is after thought. The copy of the complaint report taken by the TTE, produced by the complainant was not visible so the forum sent a letter to furnish the legible copy of the complaint lodged by the complainant in running train as such it has been collected from the railway police station Hubli in which the complainant had clearly mentioned the particulars of the property stolen in the running train with the description Houla bangles, diamond finger thoda, bracelet, ATM/Debit card, 3 finger rings, long mangal sutra, diamond ear rings baby patta, chain which clears that the complainant had given the summary details of the stolen articles at the very first instance of the incident moreover the complainant had produced the invitation of the engagement of his nephew and also the bills pertaining to the jewelleries. Hence we come to the conclusion that the negligence is the breech of the duty, Op’s are responsible for the theft occurred so as the complainant is entitled for the partial relief i.e., the value of the articles described in the very first complaint lodged with TTE the amount tuned to Rs. 12,29,500-00. Hence, we answer Point No.1 in affirmative, Point No.2 in partly affirmative.

 30.  POINT No.3:  For the reasons and discussion made above and finding on the above points, we proceed to pass following: 

//ORDER//

1. This Complaint is partially allowed.
2. OPs are directed to pay a Rs.12,29,500/- (Rupees Twelve Lakh twenty nine thousand five hundred) to the complainant towards the value of the theft articles.
3. Ops are directed to comply this order within a period of 60 days from the date of this order, failing which the OPs are liable to pay interest at 09% p.a., till realization.
4. Parties have to bear their own cost
5. Send a copy of this Order to both the parties free of cost.