Order No.                  .

Complainant by filing this case states that he purchased Railway Tickets bearing PMR No.6114621568 dated 14.12.2012 in Train No.13009, Doon Express from Howrah to Mughalsarai.

          The complainant along with his wife and son boarded the train from Howrah on 14.12.2012 for reaching to Mughalsarai.  While on board, a group of unidentified miscreants entered the train, and they had a relation with the coach attendant Md. Raja.  The miscreants started criminal activities, when asked Md. Raja and one Kala Sona Jana informed that these are the day to day activities of these criminals.  No safety measures have been taken yet for protecting the life and property of the passengers of the Express train, though they should be provided with security measures.

          The criminals started their activities and the passengers, including the complainant were robbed of gold, silver, money and other valuables.  The criminals after robbing, escaped without any protest from other side.

          In Gaya station, the complainant found all the articles are missing.  On the very next day, a complaint was lodged in the East Central Railway.

          The complainant claimed that two large size trolley suit cases containing cash, woolen garments, cannon camera, litman stetho, Blood Presume instrument, gold and silver articles (Bel Leaves) for offering Lord Vishwanath, dresses sari and several other things like three return tickets from Varanasi to Howrah were stolen.

          As all belongings were lost, the complainant was bewildered.  He lodged a complaint to the GRP and boarded hotel named Lara India for that night.  On the 16^th of December, the complainant along with his family returned to Kolkata by air because everything including the return tickets were stolen.

          Due to deficiency in service and negligent behavior of the coach attendant the complainant suffered a great loss which is really difficult to compensate.  This incident put several question marks in the minds of the complainant.  How did the miscreants enter in a reserved compartment having no authorized reserved tickets?  How did the coach attendant allow these people to board the reserved compartment?  Is there any nexus between the railway workers and the criminals?

          This incident is the most common incident which the commuters face very often while travelling in the Express trains.  The complainant lost articles worth Rs.1,01,600/-.  He demands the sum to be paid by the Railway authority.  He also demands Rs.1,00,000/- for mental and physical humiliation by the Railway authority and Rs.90,000/- for harassment during transit by coach attendant and R.P.F. officer of Mughalsarai Station.  He also demanded a further interest on Rs.1,01,600/- till full realization.  The complainant also demands the litigation cost from the Railway authority.

          In the written version, the General Manager and the Chief Commercial Manager, Eastern Railway states that the alleged cause of action i.e. the occurrence of theft of the complainant’s luggage from Doom Express on the 14^th of December 2012 occurred in Bihar near Gaya.  The theft has not occurred in West Bengal.  So, the DCDRF, Kolkata Unit-II has no jurisdiction to entertain this case for adjudication.

          The Kolkata segment of his long journey was a peaceful one,  when the train passed through West Bengal, the passenger faced no problem at all.  So there was no negligence or deficiency in service on the part of the Eastern Railway.  So the General Manager and Chief Commercial Manager of Eastern Railway are unnecessary parties.

          That Gaya where the alleged theft was detected falls under jurisdiction of East Central Railway, having its Head Office at Hazipur, Bihar.  The allegation of negligence and deficiency in service may lie against the Divisional Manager, East Central Railway, Hazipur (OP2) and the Divisional Manager, East Central Railway, Mughalsarai (OP3).

          In the reserved coaches of Mail trains the ticket checking staffs are responsible for checking the passengers’ tickets.  The staffs are also responsible for booking of the passengers in such coaches on realization of Railway dues.  The coach attendants look after on board maintenance of Air conditioned Reserved Coaches of the trains and supply bed tolls to the booked passengers of such coaches,  the coach attendants are not permitted to allow unreserved passengers in such coaches.  The ticket checking staff who check the passengers’ tickets are working under the Divisional Railway Manager, East Central Railway, Mughalsarai.

          Therefore, OPs1 and 4 may be exempted from the allegations made against them by the complainant.  The problems faced by the complainant along with his wife and son are certainly not desirable but the General Manager and the Chief Commercial Manager, Eastern Railway are not responsible for all these misdeeds occurred in the Express train because all those happenings occurred in Gaya and adjacent areas and not in West Bengal.

          So in the version of OPs1 and 4 they have nothing to comment regarding loss, theft and damage occurred in the Doon Express.

          The luggage were not booked with the railway during the journey.  If the luggage were booked, the complainant would have got a receipt against his booking.  In this case, no receipt is issued.

          OPs1 and 4 liked to reserve their comments on theft, loss and damage in Doon Express and the sufferings of the complainant and his family, in the said train.

          The complainant has not booked his luggage alleged to have lost on board.  Had he received any receipt against his luggage listed in Annexure ‘C’ of the complainant’s petition, then the Railway Authorities would be responsible for loss, destruction, damages, deterioration of the luggage.

          The divisional Railway Manager Hazipur and the Divisional Manager, Mughalsarai of the East Central Railway, i.e. OPs 2 and 3 respectively alleged that this case is not maintainable in this Forum because the alleged theft was detected in Gaya which falls in the State of Bihar.  So, District Consumer Dispute Redressal Forum, Gaya is the appropriate Forum for lodging this complaint.

          Though the complainant has bought tickets from Kolkata through internet, but he cannot lodge any complaint in Kolkata.  A complaint cannot be lodged anywhere unless the cause of action has arisen in that place.  Here the alleged theft was detected in Gaya.

          OPs 2 and 3 offices are situated in Hazipur and Mughalsarai respectively.  So, the complainant should have taken necessary permission from the Forum u/s.112(b) of the C.P. Act, 1986 before lodging this complaint.

          Further the allegations of the complainant are not supported by his co-passengers.  The statement that the coach attendant has a nexus with the criminals is not supported by sufficient proof.

          The complainant carried all the valuables along with other luggage at his own risk.  So, no question of demanding compensation arises.

Decision with Reasons

On proper study of the complaint and the written version and also the nature of the defence as made by the OP Railway Authority it is found that it is undisputed fact that the complainant along with his wife and son boarded train from Howrah on 14.12.2012 for reaching to Mughalsarai.  The complainant along with his family members and luggage boarded in the Doon Express.  It was also an admitted fact that they had their reserved tickets in sleeper coach.  They were to reach Varanasi by the next day i.e. on 15.12.2012.  But in the meantime, from sleeper coach at night all their bags were stolen.  It was detected at Gaya Station.

About loss of luggage during journey from Howrah to Mughalsarai there is no denial that it was not lost somewhere near Gaya.  But in this case, practically the whole defence of the Railway is that the Railway authority has no responsibility for the carrier of the luggage of compartment as per provision of Section 100 of the Railway Act, 1989 on the ground the responsibility for carriage of luggage has always been defined separately from goods and this is because luggage can be carried in charge of passenger himself and Railway administration or its employees did not take charge of it and for obvious reasons Railway administration cannot be held responsible for loss or damage etc. if luggage is not in the OP’s custody and another reason is the definition of luggage from the goods as per the Railways Act is that all luggage carried by the Railway need not be booked by the passengers.  Since, the first Railway Act, 1954 the Railways had no responsibility if the luggage were not booked but it was responsible for all the booked luggage until in 1989 and extension was made in respect of such booked luggage as was carried in charge of passenger and all booked luggage obviously make the Railways liable only for the luggage entrusted to it in carriage not for the luggage which a passenger chooses to keep in his own custody.

In fact, Ld. Lawyer for the OP submitted in view of the above definition that Railways is not responsible in respect of luggage which a passenger choose to keep in his own custody and in this case, all the luggage were in custody of the passenger and it was not booked separately and it was never handed over to the Railways to take charge of the security as per provision 100 of Railways Act, 1989 it is not the responsibility of the Railway Authority and practically Ld. Lawyer for the OP relies upon such sort of principles of law.

But in this case, Ld. Lawyer for the OP perhaps fails to notice that the passenger purchased sleeper coach reserved tickets for himself and for his wife and son and they were passengers with valid reserved tickets at sleeper coach.  In this case, the word sleeper should be minutely considered.  Sleeper coach means journey is for night hours and in sleeper coach the safety must be given to the bona fide reserved passengers during night hours so that their belongings must not have been stolen or removed by said unauthorized passengers even after existence of Railway guard and coach attendant in each coach.  There must be guard in each coach during night hours journey.  If Railway Authority fails to provide such service to the reserved coach passengers who availed of sleeper coach for their smooth journey at night, then they are answerable to the passengers.  But here Railway Authority has failed to give such positive answers that in the said coach there were guards.  On the contrary as per the version of the complainant, the coach attendant Md. Raja and one Kala sona Jana admitted that there were lapses of security measures in the ill-fated train, Doon Express.  The unidentified miscreants looted articles, garments, woolen garments, saree, canon camera, litman stetho, gold and silver leaves for offering to Lord Vishwanath, of the 3A coach near Goya.  So, it is clear that there was gross negligence on the part of the Railway Authority and for the laches of the Railway authority, the luggage were stolen at mid night or dawn and the loss was caused on transit.  The complainant lodged a complaint at Mughalsarai station.  But we must keep in mind that Section 100 of Railway Act 1989 was amended in the year 1961 and after such amendment the present lines of section is as follows “ A Railway administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless Railway service has booked a luggage and give the receipt thereof and in the case of luggage which is carried by the passenger in his charge unless it is proved that the loss, destruction, damage or deterioration was due to the negligence or misconduct on his part or on the part of its any servants.

After studying the above Section we have gathered that there are two parts and one part is in respect of luggage which has been booked by the Railway authority by giving a receipt thereof to the person and in such case if it is not delivered, the Railway authority is bound to pay compensation.  And in the second part it is stated that in 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 mis-conduct on his part of servants.  If second part is taken into consideration, it is found that the luggage need not necessarily be booked by the passenger having valid passenger ticket.

But as per version of Section 124 it is required that goods must be owned by the passenger.  But in view of Section 124 with second part of Section 100 of Railway Act, 1989, it appears that the responsibility in respect of goods owned by the passenger and company or on the train even after such goods owned by the passenger and company in his commitment or in the train even after such goods is not booked and as per provision of Section 2(23) definition of luggage is also considered and it is found that after proper evaluation of the provision of Railway Act, 1989 that luggage may either be carried by the passenger in his charge or entrusted to the Railway authority for carriage and further considering that definition in between goods and luggage we have gathered that this definition is not necessary because neither the condition of booking nor the nature of responsibility is ever deferred just because an article or a commodity is booked as goods or as luggage even then the nature of responsibility of Railway administration as carrier has deferred from time to time under the act as that of common carrier.  Fact remains that after proper interpretation of the entire position of law of the present fact we are confirmed that the nature of responsibility has been same both in case of luggage and goods whether it is booked or not.

But after taking into account, the above findings including spirit of provision of Section 100 of the Railways Act, 1989 and the present fact and circumstances, we have gathered that the responsibility for loss, damage etc. of the luggage shall be governed according to whether luggage were carried by the passenger in his own charge or whether the luggage lost or damaged being booked for the portion of journey or not and in view of the above findings we are convinced to hold that under any circumstances and even under Section 100 of Railway Act, 1989 Railway cannot anyway claim that they have no responsibility even if the luggage was not booked by the passenger but as because he is bona fide ticket holder of a reserved compartment of sleeper coach 3A of Doon Express.  Then higher responsibility lies upon the Railway authority to give all securities, safety of their journey.  But in this case, Railway authority casually submitted by filing written version by mentioning Section 100 of Railways Act, 1989 and Railway authority has no responsibility because it was not booked.  Probably the Railway administration having high qualities of person never went through the provision of law of Section 100 of Railway Act, 1989 because the Section is divided in two parts one in respect of booked luggage and another in respect of non-booked luggage that means which are generally kept by the passenger during their journey and in both the cases same responsibility is fixed by the Act.  Then it is clear that the Railway Authority is bound to give compensation for such lost articles during their journey by Doon Express from Howrah to Mughalsarai and admitted fact is that their belongings were stolen near Gaya.  Fact remains that at night in sleeper coach no outsider shall be permitted by the attendant of the said coach or security guard but in this regard Railway is silent whether there was appropriate security arrangement.  Then it is clear that there was no security guard, so outsider came and the entire journey of the complainant was unsafe.

When the train has been paid with reservation charge for sleeper coach then it is the responsibility of the Railway Authority to give all service including safety, security and other amenities, because one cannot believe that the sleeper coach is booked for the purpose of guarding their belongings by passenger whole night and for giving chance to ticket checkers and security guard to enjoy whole night to sleep at some other places.  But now-a-days this is the practice and fact remains in so many cases the coach conductors do not come down from coach after arrival of any train and to check up that any other person with reserved ticket is getting chance to enter into specific coach or not and they have got their sleeper coach seat at night and most of the cases we have observed during journey 3^rd parties are occupying by giving bribe and this is the common practice in most of the trains.  But the Railway authority is not in a position to check the situation and they are reluctant to do so because the ticket checker and coach attendants and conductors are very much busy in their business with the passengers having their no ticket.  Sometimes ticket checkers expect these passengers without ticket than the passenger with ticket because the passenger with ticket will not give any better result to the ticket checkers or guards but by handling ticketless passengers, they shall have to enjoy their ex gratia and it is a clear picture of corruption in Railway and none is here and there to control them.  Whatever, it may be, we have depicted a very beautiful picture of Railway Administration about their service of the conductor, guard and ticket checkers.  It is a very common picture.  But there is none to oppose these ticketless passengers.  There is no necessity to pay huge money for booking of sleeper coach in view of that fact by paying 50% of the total fair they can avail of the journey because they have their relations in the Railway who provide service to ticketless passengers but not to serve the passengers with valid ticket. 

The passengers with valid tickets are not entertained by the coach attendant and ticket checkers and question of security is absent and it is the horrible picture of all the valid ticket holders in the reserved coach.

Fact remains for not giving proper service and for negligent manner of service Railway Authority is completely responsible and no doubt for their laches and misconduct of the Railway Staff all the articles were stolen so Railway Administration is responsible for their negligent manner of service and they are not exempted but all the principles as laid down in Section 100 of Railways Act, 1989 most probably had not been realized by the Railway Authority for which the argument was advanced before this Forum by showing Section 100 of the Railway Act, 1989.

We are directing the Railway Authority to read Section 100 daily by their staff to realize that there are two parts but in both the cases responsibility is same.

Considering all the facts and circumstances and considering poor service of the Railway Authority in sleeper coach at night hours in particular train Doon express from Howrah to Mughalsarai is well proved and fact remains that there was no safety for journey of a passenger of any train in sleeper coach, most probably Railway Authority has tried to say that in sleeper coach at night, the passenger shall have not to sleep to guard their articles and they must not have to close their eyelids only to give enough service to the ticket checkers and the guards and Railway police to sleep silently under the direct security of the non-sleeping passengers and this observation is made considering the argument as advanced by the Railway Authority before this Forum because again and again they tried to say that it is the duty of the passenger to keep watch in respect of their articles at night hours that means the Railway Authority is asking the passengers of sleeper coach not to sleep though it is sleeper coach henceforth Railway Authority shall have to note down in the coach “non-sleeper coach” Horrible experience has been acquired by the complainant and his family member during their journey.  It is not a stray incident but it is the common incident.  All the reserved coaches were occupied by the outsiders when ticket checkers is found a phoenix bird and in the present case it is proved that negligence on the part of the Railway Authority and their employees is well proved and for their negligent manner of service actually the articles of the complainant was removed or stolen away and in this regard it can safely be said that the coach security, attendant of the coach were with the side of the miscreants or they were not in the train or they permitted unauthorized passengers to avail of train for their own ex-gratia which they got daily other than the salary and so directly or indirectly for such loss of luggage of the complainant railway administration and its staffs are equally responsible.

          In the light of the above observation we are convinced to hold that the complainant has proved from any manner of doubt the negligence on the part of the Railway administration and their employees.  But they are not penalized but before the Forum, the person who appeared is the Ld. Lawyer of General Manager of E.R. and Chief Commercial Manager of E.R. who received the complaint but did not decide it because in our country, corruption in all levels is so high that the total ex-gratia is distributed among all.  An honest service to the valid ticket holders should be given at first for total development of the Railway authority.  All sorts of corruptions should be stopped, but this is absent and the present case is gaining instance in this regard.  In fact there is no desire of the Railway administration to give proper service during long journey.  In this case it is proved what type of service was given by the railway authority and there was no security and safety of the bona fide sleeper coach passengers from Howrah to Mughalsarai on that date.

          The General Manager, the Divisional Railway Manager, Hajipur, the Divisional Manager, Mughalsarai, the Chief Commercial Manager who ought to have enquired about the matter and they ought to have showed morality by regretting to the family.

          In the light of the above observation we are convinced to hold that complainant has proved beyond any manner of doubt the negligence on the part of the Railway Authority and their employees and no doubt for the negligence on the part of the Railway staff, complainant lost all their belongings.

          Anyhow, the Ld. Lawyer for the op has tried to convince that this Forum has no jurisdiction but in this regard we have considered the fact that the Divisional Manager and the Chief Commercial Manager’s office are at N.S. Road and Fairly Place respectively which are within the jurisdiction of this Forum and they have the authority to decide such complaint but they had no desire to decide the matter.  On the contrary, the Railway authority has very casual approach.

          After proper study of Railway Claims Tribunal Act 1987 it is found that loss or damage etc. of luggage is not the subject matter for decision by the Tribunal but claims Tribunal shall have to decide the following – 1. for loss or damage etc. of goods entrusted for carriage, 2. for refund of fair and freight and 3. for compensation for death or indulge caused in certain circumstances imparting during the course of railway for matters connected there but claim for loss of luggage Railway Claim Tribunal cannot decide the loss or damages etc. in respect of luggage kept in the custody of the passenger during journey.

          So we are convinced that this Forum has jurisdiction to decide the present redressal as claimed by the complainant and the present Forum has jurisdiction to decide it and fact remains on journey if any theft is committed in that case the entire matter may be dealt with by the Forum.

          In the light of the above observation and also considering the entire materials we have gathered that it is a very painful and horrible picture as presented before the Forum by a tourist lover family who lost all their luggage on board and no doubt it was caused due to gross negligence of the Railway employees who were on duty on the said train (Doon Express) on the very day and fact remains that complainant did not get proper security and service from the Railway Authority during the journey for which Railway is responsible and for which they are liable to pay compensation and practically in this case compensation cannot be evaluated on the basis of money but they are entitled to get some compensation because their loss is unimaginable and in the circumstances Railway authority shall have to pay Rs.1,00,000/- to the complainant as per provision of C.P. Act 1986.

          In the result, the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the ops.

          OPs are hereby directed to pay compensation of Rs.1,00,000/- to the complainant within one month from the date of this order for causing mental pain, agony, harassment and for their negligent and deficient manner of service rendered to the complainant as a bona fide passenger of Doon Express in sleeper coach No.3A.

          OP shall have to comply this order by paying total Rs.1,10,000/- (Rs.1,00,000/- as compensation and Rs.10,000/- cost as awarded) within one month from the date of order failing which for each day’s delay and for non-compliance of this order of the Forum, Railway Authority shall have to pay punitive damages @ Rs.200/- per day till full implementation of this order and if it is collected, same shall be deposited to this Forum by the Railway Authority.

          Even if it is found they are very much reluctant to comply the order in that case penal action u/s 27 of C.P. Act 1986 shall be started against them and further penalty of Rs.10,000/- shall be imposed as per law.