DISTRICT CONSUMER DISPUTES REDRESSAL FORUM. BOLANGIR.
……………………………
Presents:-
- Sri P.Samantara, President.
- Sri G.K.Mishra, Member.
Dated, Bolangir the 30th day of March 2016.
C.C.No.47 of 2014.
Sri Rama Narayan Mishra, son of H.K.Mishra.
At-Raghunathpada,Titilagarh, P.O/P.S-Titilagarh,
District- Bolangir.
.. .. Complainant.
-Versus-
The General Manager, East Coast Railway.
Bhubaneswar, Dist-Khurda.
.. .. Opp.Party.
Advocate for the complainant-Sri R.Rath & C,S,Mishra.
Advocate for the Opp.Party -Sri R.K.Tripathy.
Date of filing of the case-25.06.2014
Date of order - 30.03.2016
JUDGMENT.
Sri P.Samantara, President.
Brief to the fact, the complainant was traveling from Titilagarh to Bhubaneswar with his wife in train No.18426 (Durg-Puri intercity) in S-5 coach, berth No.10 and 13 vide ticket No.70238 against PNR No.661-9885598 on dated 04.10.2013.
2. It is complained although luggages are chained and locked into the berth. Theft occurred and the loss includes Rs 5,400/- cash, SBI ATM Card, Five numbers of exclusive sarees and dresses and also returned ticket for dt.08.10.2013 in Tapaswini express. The total effect value worth to Rs 30,000/- only.
3. The complainant averred that the R.P.F, TTE of the train TTE in AC coach and other employees of railway did not co-operate in lodge of the F.I.R. citing various technical reasons and lastly6 on dt.05.10.2013 at about 9 A.M. one F.I.R. has been lodged at GRPS, BBSR. It is the duty of railway authorities to protect the passengers in reserved coaches along with safety of luggages and valuables, failing identity definitely comes under deficiency of service in duty and liable to be compensated.
4. Relied on photo copy of ticket, FIR, letters on various occasions and affidavit & decision in reliance.
5. In pursuant to notice, the O.P appeared and filed the version contending, this forum lacks territorial jurisdiction to try in view of the cause of action arise in Talcher having being I coming to the knowledge. The consumer forum is not the appropriate forum to raise the issue in view of Railway Claims Tribunal Act,1987 having provision to act and Section 28, shall have over riding effect. RCT has exclusive jurisdiction u/s.13 & 15 read with section 28 of the Act and Section 15 bars courts and other authorities in exercise of jurisdiction, so the complaint petition is not maintainable and likely to be dismissed.
6. The allegation of theft that includes cash, SBI ATM card and exclusive sarees & dresses worth of Rs 30,000/- is not believable in absence of substantive purchase receipt or other mode of having possession to establish. The articles expressed in FIR is no more a booked luggage. It is submitted the theft has been occurred due to negligence and irresponsibility of the complainant.
7. The O.P. also averred, the confronted enquiry reveals the complainant had not approached to the concerned sleeper class Ticket checking staff. Section 100 of Railways Act says the O.P is not liable unless and until the luggage is booked. Booking of luggage with the railways is a condition precedent which means that the passenger is availing/hiring railways service for carriage of luggage also. The O.Ps are not liable to pay the value of stolen property/article as the complainant failed to take the responsibility and the entire liability cannot be thrown on the rail ways where the complainant carried the luggage free of charge and without booking while traveling. Under the aforesaid facts and circumstances the petition of the complainant berths no merits & be dismissed with cost in the interest of justice. Relied on confronted enquiry report, RTI information and latter written note of argument and photo copy of Judgments made reliance on this case.
8. Heard both the counsels at length and perused the documents on record.
9. In consideration of the issues both on facts and laws which are heavily contended by the parties in exhaustive manner. The petitioner contended the fact of theft has been rightly intimated to the TTE on duty and subsequent authorities recommended toeach other citing non proficient propriety. Lastly the petitioner lodged F.I.R. at GRPS, Bhubaneswar on dt.05.10.2013,latter which has been sent to IIC.GRPS, Cuttack on the point of jurisdiction vide GRPS/BBS’s letter No.2556 dt.05.10.2013 for further course of action but the transit has been failed as it transpire from the letter.
10. The O.P vehemently contended that as the cause of action arose at Talcher, then neither BBSR nor Cuttack is the ;right jurisdiction to entertain the complaint under the FIR content.
11. Further on the said F.I.R. no investigation conducted nor final form has been filed till the date. In absence of final form the matter in dispute is subjudiced and also non substantive & non established one can’t be assessed as confirmed one as because the petitioner has made affidavit and not adduced a piece of paper in proof of possession prior to theft that the articles in question is rightly entitled to the petitioner.
12. On the issue of law, the petitioner argued Sec.100 of Railway Act and also Sec.13 of Railway Act to justify their plea but the said section is applicable only in case of luggages missed during booking. Same is not applicable to reservation coach. Similarly in view of decision made under occupants and personal belongings.
(i)Vinaya Vilas Sawant Vs Union of India.
(ii)Syad Ahmed Vs Union of India, Southern Railway.
(iii) State of Karnataka Vs Vishwa Bharati House Building Co-operative Society-1996
Combinedly nullify that neither section 13 or 15 or 28 has the force to undermine the jurisdiction in over riding the Consumer Protection Act in specific to Section 3.
13. Our view is further fortified under the decision in which it is held- the Apex court has gone to the extent of saying- That if two different for a have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of consumer forum would not barred and the power of the consumer forum to adjudicate upon the dispute could not be negated- Kishorelal Vs Chairman, Employees State Insurance Corporation. Thus the case is maintainable under the law.
14, The O.P. also contended no doubt Sec.3 of Consumer Protection Act expand the jurisdiction to try the case but in view of the RCT Act 1987 and of Sec.28 shall have a over riding effect and bars the jurisdiction thereby liable to be dismissed and section 100 of the Act reads:-
“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 therefore 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 or misconduct on it’s part or on the part of any of its servants. The conjoint reading of both the sections clearly says the case is not maintainable and relied with plethora of decisions.
15. On the above made context we find decisions relied by the petitioner is more fit to the present context and fortified with the rulings that “ the remedies provided under there are not in derogation of those provided under other laws. It has jurisdiction to entertain a
in spite of the fact that other forums/courts would also have jurisdiction to adjudicate upon the lis .State of Karnataka Vs Vishwa Bharati House Building Society. So this court did not derive jurisdiction apart from Statute rather the principle well permits to drive within the statute.
16. The other aspect on factual of theft, on perusal of the confrontation enquiry report on dt.03.01.2014 which speaks, the petitioner did not meet the concerned TTE of the sleeper class and filing of F.I.R. at GRPS, Bhubaneswar is not competently well within the laws.
17. The FIR although lodged but for perusal no final form on the said case has been procured or provided in the minute discussion on the article under allegation of theft. Not a single paper or memo or receipt has been placed for consideration that articles has procured or bought or in possession since such days/dates. Loss of cash is not corroborated by any evidence that such cash has been dispensed by ATM counter or some other way so also the exclusive sarees or dresses. In absence of substantive on the possessive article/valuation or final police report, the claim of loss is considered as fanciful and far from corroboration to the truth.
18. It is pertinent to note that the petitioner has not produced any evidence in rebuttal of the contention advancement of O.P rather we feel not iota if truth has been in lead to establish that the loss content is worth of Rs 30,000/- in value. In view of the non solid and flappable evidence, the case of the petitioner pales into insignificance. Mere an affidavit will not be sufficient or would not serve the purpose for the claim of loss goods. There must be independent evidence. The arguments advanced by the O.P finds more plausible. It is thus clear that the petitioner has not bone to pluck with the contender.
The petition is ill founded one and hereby dismissed.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 30TH DAY OF MARCH 2016.
(G.K.Rath) (P.Samantara)
MEMBER. PRESIDENT.
