This complaint has been filed by Babu Ram, complainant against Union of India (opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act').
Briefly stated, the case of the complainant is that he is senior citizen and practicing lawyer in the District Courts, Faridkot. His permanent home address is # B-V/307, Ward No. 13, Street Dr. Tulsi Ram, Kotkapura, District Faridkot. On 3-1-2015, complainant booked 11 reservation seats/berths of 3 tier sleeper class coach through reservation registration form of Sleeper class of Barmer-Haridwar Link Express train No. 14888 to go to Saharanpur on 23-1-2015 to be boarded from Bathinda Railway Station at 11.15 p.m. Five seats were allotted through Journey-cum-Reservation Ticket No. 99606546 dated 23-1-2015 of PNR No. 284-2681554. Six seats were allotted through Journey-cum-Reservation Ticket No. 99606548 dated 23-1-2015 of PNR No. 230-0911092.
The complainant booked 11 return reservation seats/berths through same reservation form of 3 tier sleeper class of Haridwar-Barmer Express Train No. 14887 to be boarded from Sharanpur to Bhatinda on 24-1-2015 at 9.15 p.m. Five return journey reservation/berths were allotted through reservation ticket No. 90606547 dated 24-1-2015 of PNR No. 262-9092243 as follows :
Coach No. Seat/Berth Sex Age
S-7 65 LB M 63 yrs
S-7 71 SL F 60 yrs
S-7 68 LB F 80 yrs
S-7 66 MB M 32 yrs
S-7 67 UB M 29 yrs
Six return seats/berths were allotted through journey-cum-reservation ticket No. 99606549 dated 24-1-2015 of PNR no. 284-2682151 as follows :-
Coach No. Seat/Berth Sex Age
S-7 42 MB M 34 yrs
S-7 43 UB F 30 yrs
S-7 41 LB F 58 yrs
S-7 44 LB F 19 yrs
S-7 45 MB M 20 yrs
S-7 46 UB M 16 yrs
It is pleaded that complainant hired the services of Northern Railway w.e.f. 23-1-2015 to 24-1-2015 for going and return journey through booking of 11 reserved seats in Coach No. 7 of Barmer-Hardiwar Link Express Train and Vice versa. Thus, he is consumer of the opposite parties. The complainant alongwith all the family members went to Bathinda Railway Station from Kotkapura on 23-1-2015 for boarding in Barmer-Haridwar Train No. 14888. After arrival of the train at Bathinda Railway Station, the complainant alongwith all the family members occupied the reserved seats in the allotted Coach No. S-7 alongwith locked suitcases and other luggage bags and kept the same nearby their seats. The coach attendant duly checked and verified seats but no security person was available in the coach and no coach attendant came again. In the morning on 24-1-2015, they left occupied seats alongwith suitcases luggage bags when the train reached at Saharanpur. The complainant alongwith all the family members after performing the ring ceremony function on 24-1-015, came to Saharanpur Railway Station alongwith all the suitcases and bags. When Haridwar-Barmer Express Train No. 14887 reached the platform, the complainant alongwith all the family members occupied the allotted reserved seats in Coach No. S-7. The locked suitcases alongwith bags were kept nearby their seats. The coach attendant duly checked and verified their seats, but no security person was available in the coach and no coach attendant came again.
It is further the case of the complainant that he alongwith all the family members woke up early in the morning on 25-1-2015 when Haridwar-Barmer Link Express Train was about to reach at the platform of Bathinda Railway Station. They collected their suitcases and luggage bags, but complainant felt shocked when noticed that a locked valuable suitcase is missing. The complainant alonglwith all the family members searched here and there but in vain. When the train stopped at platform at Bathinda Railway Station, it was too cold and fogy on 25-1-2015 in the morning. The complainant and his family members heard that Punjab Mail Superfast Express train is coming from New Delhi to Ferozepur. Due to unbearable cold on 25-1-2015 early in the morning and having small kids, the complainant and his family members decided to go to Kotkapura hometown alongwith the remaining suitcases and luggage bags. The complainant purchased 10 tickets from Bathinda to Kotkapura of Punjab Mail Superfast Express Train No. 12137.
It is alleged that complainant has lost valuable belongings in the missing suitcase due to negligence and deficiency of service of the opposite parties in the running train who failed to provide safety and security to him. They are fully liable for deficiency of service to the consumers. The details of the lost items is mentioned as under :-
Sr. Item Cost of the item
No. (Rs.)
1. 3 readymade ladies suits 4300/-
(Rs. 1600+Rs.1400/-+Rs. 1300)
2. 2 readymade pents and shirts @800/- each 1600/-
3. One coat pent including stitching charges 14300/-
4. 2 Golden Armlets 26500/-
5. 1 Golden Necklace 29600/-
6. 1 Golden Ring 5200/-
7. 1 Ladies Purse 400/-
8. Cost of Suit case 1200/-
9. Cash/currency notes 3600/-
Total : 86700/-
As per complainant on 26-1-2015 being holiday of Republic day, he went to Bathinda for lodging FIR for missing valuable suitcase but no RPF/GRP official was available at the platform. Again on 27-1-2015, complainant went to the office of the opposite party No. 3 for lodging FIR for missing valuable suitcases, but they advised to go to Bathinda where cause happened or to go to Barmer Railway Station where Haridwar-Barmer Link Express terminated. No response was given to the complainant except this advise. On the last day on 28-01-2015, the complainant went to Barmer Railway Station for lodging FIR for the missing valuable suitcase where they refused to entertain the matter as the suitcase was lost in journey in between Ambala Cantt. and Bathinda. On 30-01-2015, complainant sent registered complaint-cum-notice to all the concerned authorities for compensation of the loss occurred to the tune of Rs. 86,700/- due to negligence of the opposite parties. After lapse of about one and half month, an official of GRP, Bathinda, asked the complainant to come at Bathinda and give fresh statement about missing of valuable suitcase. The complainant denied to give fresh statement suspecting that the matter would be hushed up.
On this backdrop of facts, the complainant has prayed for directing the opposite parties to pay Rs. 86,700/- with interest @ 12% p.a., compensation to the tune of Rs. 1,00,000/- for harassment, negligence and deficiency of service and Rs. 2,000/- as cost of the complaint.
Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written version. In written version, the opposite parties raised legal objections that this Forum has no jurisdiction to try and decide the complaint as only the Railway Claims Tribunal has got the exclusive jurisdiction to try and decide the said complaint in view of Section 13 read with Section 15 of the said Act. Any complaint for claim regarding alleged loss of goods etc., can only be tried and decided by Railway Claims Tribunal. Jurisdiction of any other court/Fora is barred. Therefore, complaint is liable to be dismissed with cost. That Railway Administration is not liable for any loss of luggage which has not been booked or where the loss has occurred without any negligence or misconduct on the part of Railway Administration or any of its servants as per Section 100 of Railways Act, 1989. That complainant has concealed material facts and documents from this Forum as well as the opposite parties. Therefore, the complainant is not entitled to any relief. The complainant has concealed the fact that he has failed to prove the alleged loss in train and quantum thereof. The complainant has concocted a false story to get undue benefit and gain from the opposite parties. It is on record that Haridwar Barmer Express Link Train No. 14887 reached Bathinda at 6.50 a.m. on 25-1-2015 whereas the Punjab Mail Express which the complainant alleges to have boarded on 25-1-2015 started at 7.20 a.m. There was no complaint of any alleged loss with TTE of Train No. 14887 or at Railway Station, Bathinda. The complainant did not lodge any complaint upto 30-01-2015 which shows that there was no loss at all in the train . The complaint has been filed with a false and concocted story later on. That complainant is not consumer of the opposite parties. That complainant has no locus standi or cause of action to file the complaint. That complaint is not maintainable in the present form and that the complaint is bad for non-joinder of necessary parties as the complainant has not impleaded other passengers who allegedly travelled with complainant against the same tickets.
On merits, the opposite parties have controverted all the material averments. It is further mentioned that security personnel keep on visiting different coaches and the coach attendant/TTE remains present in the coach and checks the tickets and arranges and assists the passengers in getting their allotted seats. Every passenger has to take proper care of his luggage/bags etc., of his own. The opposite parties are not responsible for any alleged loss caused by negligence and carelessness of passengers themselves. The complainant alleged that they were sleeping and on the other hand he has alleged that no security person was available/visited which are self contradictory. After controverting all other averments, the opposite parties prayed for dismissal of complaint.
Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 3-4-2015 (Ex. C-1), photocopies of tickets (Ex. C-2 to Ex. C-6), photocopies of legal notice (Ex. C-7 to Ex. C-8), photocopy of letter (Ex. C-9), photocopy of envelop (Ex. C-10 & Ex. C-11), affidavit of Mahavir Kumar dated 25-6-2015 (Ex. C-12) and copy of FIR (Ex. C-13).
In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 29-7-2015 of Amanpal Singh (Ex. OP-1/1) and photocopy of letter dated 3-2-2015 (Ex. OP-1/2).
Parties have also submitted written submissions.
We have heard complainant, learned counsel for the opposite parties and gone through the record and written submissions of the complainant.
The complainant has reiterated his stand as set up in the complaint and as detailed above. The complainant has further submitted that first objection of the opposite parties is regarding jurisdiction but the claim is on account of theft of suit case. This claim is not maintainable before Railway Claims Tribunal. As such, this Forum has jurisdiction in such matters. To support these submissions, complainant has relied upon :-
(i) 2005 (IV)CPJ 79 (NC) case titled Divisional Railway Manager & Another Vs. Abhishankar Adhikari
(ii) 2013 (III) CPJ 469 (NC) case titled Union of India Vs. Dr. Shobha Agarwal
It is further pleaded by the complainant that opposite parties were negligent as there was no security personnel and coach attendant to perform their duty. Had there been any security personnel and coach attendant, there was no question of theft of the suit case belonging to the complainant. The opposite parties have no documentary evidence to prove deployment of security personnel as well as duty of the coach attendant. No evidence has been produced by the opposite parties to prove this fact. Therefore, adverse inference is to be drawn against the opposite parties as it is proved that there was no security personnel and coach attendant in the coach wherein complainant was traveling. The complainant has produced on record his affidavit wherein he has detailed the reason for delay in registration of FIR. When the delay in FIR is only due to non availability of RPF/GRP official and callous attitude of the opposite parties, the complainant cannot be made sufferer for this lapse. The complainant has detailed the articles lost by him. The complainant is not supposed to retain the bills/invoices of such type of articles. There is nothing to disbelieve this version of the complainant. Therefore, loss of the complainant also stands proved by way of sworn affidavits of complainant and his son Mahavir Singh.
To support these submissions, complainant has cited :-
(i) 2012 (II) CPJ 640 (NC) South Central Railway & Others Vs. Jagannath Mohan Shinde
(ii) AIR 2004 Supreme Court 2368 Sumatidevi M. Dhanwatay Vs. Union of India & Ors.,
(iii) 2006 (II) CPJ 142 Vinod Sanghi Vs. Union of India Railway
(iv) 1996 (II) CPJ 31 (NC) Union of India & Anr. Vs. Manoj H Pathak
(v) 2013 (IV) CPJ 155 (Utta.) Indian Railway & Ors. Vs. Anchal Garg
(vi) 2012 (III) CPJ 27 South Central Railway Vs. Suchi Singh & Ors
On the other hand, learned counsel for the opposite parties has submitted that this Forum has no jurisdiction to entertain and decide the matter involved in this case. The appropriate Forum to decide the matter is only Railway Claims Tribunal. Jurisdiction of any other court/Fora is barred.
To support this submission, learned counsel for the opposite parties relied upon :-
(i) 2008 (2) CLT 93 (N.C.) Jatinder Chand Juneja Vs. Union of India
(ii) 2012(2) CLT 365 Narender Kumar Vs. Stationer Superintendent, Railway Station, Sonepat & Ors.
(iii) 2013(1) CLT 296 Southern Railway Vs. Stalin Herald
(iv) 2000(1) CLT 33 Ravneet Singh Bagga Vs. M/s. K L M Goyal Dutch Airlines and another
It is further submitted by learned counsel for the opposite parties that there is inordinate delay in reporting the matter to the police. The theft took place on the morning of 25-01-2015 but the complainant has not lodged any compliant with TTE of Train No. 14887 or with the police of Railway Station, Bathinda. The complainant has not lodged any report upto 30-01-2015. This fact itself makes the claim of the complainant doubtful. In case any theft was reported to the police immediately, the culprit my have been arrested and stolen suitcase may have been recovered.
It is further submitted by learned counsel for the opposite parties that the case law relied upon by the complainant are not applicable to the facts of the case. The facts of the cited cases are all together different from the facts of this case.
As per complainant he alongwith 10 other family members traveled in the train but there is nothing to show that complainant or his family members took any steps to ensure safety of their suitcases/luggage bags. The complainant has also not alleged any specific negligence on the part of the opposite parties. Of course the complainant has alleged that no security personnel was there in the coach and no coach attendant visited the coach after checking of the tickets. On the other hand, the complainant has stated that they woke-up in the morning of 25-1-2015 and noticed their suitcase missing. Therefore, it shows that complainant and his family members kept/remained sleeping for whole night. They cannot allege that there was no security personnel or coach attendant in the train. The complainant has failed to prove any deficiency of service on the part of the opposite parties.
The complainant has alleged loss to the tune of Rs. 86,700/- but there is no evidence to prove this case. The bald statement of complainant cannot be accepted as evidence regarding valuation of lost articles. From all angles, complainant has failed to prove his case. Therefore, complaint deserves dismissal.
We have carefully gone through the record, written submissions of the parties, case law cited by complainant and learned counsel for the opposite parties and have considered the rival contentions.
Since the opposite parties have raised first objection regarding jurisdiction of this Forum to entertain and decide the complaint. Therefore, before recording any finding on the main controversy, it is to be seen whether this Forum has jurisdiction to entertain and decide the complainant or not.
In the case of Divisional Railway Manager & Anr. Vs. Abhishankar Adhikari (Supra), the complainant-respondent was traveling by Delhi-Kalka Mail AC-3 tier Coach. At about 5.45 a.m. he was the only passenger in his coupe and when he came back to his birth after brushing his teeth and washing his mouth, he found his VIP Trolley suitcase containing one camera, one cell phone, Rs. 5500/- in cash and some other belongings missing. The point of jurisdiction of the Forum was also examined in this case. It was categorically observed that every railway passenger is a consumer in terms of Section 3 of the 'Act'. The jurisdiction of the Consumer Fora is not ousted in such matters as the loss of luggage is not covered by Section 13 of the Railway Claims Tribunal Act, 1987. Regarding Section 15 of Railway Claims Tribunal Act, it was observed that section 15 does not cover the matter in question.
In case of of Union of India Vs. Dr. Shobha Agarwal (supra), the complainant was traveling in AC second class sleeper with reserved berths and the suit case was found missing. After discussing the provisions of Section 13 of the Railway Claims Tribunal Act, 1987, it was concluded that jurisdiction of the Consumer Fora cannot be barred by virtue of provisions of Section 15.
The opposite parties have mainly relied upon cases of Jatinder Chand Juneja Vs. Union of India and Ors. (supra) and Nrender Kumar Vs. Station Superintendent, Railway Station (supra). In the case of Jatinder Chand Juneja (supra), the complainant suffered injuries. Therefore, this case is quite distinguishable.
Of course in the case of Narender Kumar (supra), the case of the complainant was that he boarded the train No. 4518 Unchahar Express for Allahabad and on the next morning he found his bag missing. Hon'ble State Commission concluded that complaint is not legally maintainable in view of the bar of jurisdiction created by Section 15 but the cases referred in this judgement were covered under Section 124A and 123 of the Railway Claims Tribunal Act, 1989. Section 123 and 124A of the Railway Act relate to matter involving untoward incident and untoward incident is also defined under Section 123 of the Railways Act.Section 124-A which reads as under :-
“124-A Compensation on account of untoward incident -When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident :
Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -
(a) suicide or attempted suicide by him;
(b) self-inflicted injury
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident
Explanation – For the purposes of this section 'passenger' includes -
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.”
Therefore, as per Section 124A of the Railways Act, 1989 also, the bar is only regarding untoward incidents which are certainly different from the incident of theft etc., Thus, keeping in view the aforesaid legal proposition, we have come to the conclusion that jurisdiction of this Forum is not barred in the case of theft.
Now coming to the main controversy. It is well settled that complainant has to prove his case by affirmative evidence. The only material allegations of the complainant to claim compensation are that after boarding the train, they kept their suit cases and bags nearby. It is further alleged that there was no security personnel in the coach and coach attendant did not come again. There is no allegation that some other passengers (unauthorized) used to board/ boarded in the train illegally from different places. The complainant has not specifically mentioned the precautions/safety measure taken by him to safeguard his luggage. The allegations of the complainant are also somehow contradictory. In the later part of the complaint, it is alleged that complainant and all the family members woke-up in the morning of 25-1-2015. Therefore, in such circumstances, complainant cannot allege that there was no security personnel or coach attendant in the coach.
The complainant has cited various judgements to support his claim. Now it is to be seen whether in the absence of any step to take care of the luggage, the complainant is entitled to any relief on the basis of cited case law :
(i) Divisional Railway Manager & Anr Vs. Abhishankar Adhikari (supra)
In this cited case, the complainant was traveling in AC 3 Tier Coach. He was only passenger in his coupe when he left his berth for brushing his teeth and washing his mouth at the wash-basin provided in the coach and when he came back to his berth, he found his VIP Trolley Suitcase containing one camera, one cell phone Rs. 5500/- in cash and some other belongings missing.
In the case in hand, it is not the case of the complaint that he was the only passenger traveling in particular coach. Therefore, this citation is not helpful to the complainant.
(ii) Union of India Vs. Dr. Shobha Agarwal
In this case, the complainant alongwith her daughter was traveling in a AC second class sleeper with reserved berth. It was also alleged by the complainant that some suspected person was seen snooping here and there about which the complaint was made to the ticket checker but no action was taken by him. The same suspected person was again seen in reserved coach at about 2'O clock in the night. When complainant woke up at 7'O clock in the morning she found that her grey colour suitcase which had been tied under the berth with the help of chain and lock was missing from there.
In the present case, it is not the case of the complainant that he tied the suit case in question with any chain or lock. Therefore, this case is also quite distinguishable.
(iii) South Central Railway & Others Vs. Jagannath Mohan Shinde
In this case, complainant, his wife and daughter were traveling in their reserved berths. Their bag containing gold ornaments and cash was secured with a chain to the lower berth rod. When the train reached Nashik Station, complainant's wife noticed that the Train Ticket Examiner (TTE) had permitted a person to enter the reserved compartment. When the train arrived at Aurangabad Station, complainant found that their bag which they had secured with a chain was untied and gold ornaments and cash worth Rs. 1,31,000/- was missing. It was alleged that theft was committed by unauthorized person.
At the cost of repetition, in this case there is no allegation that any unauthorized person was permitted to travel in that coach by TTE or any unauthorized person entered in the coach. Therefore, this case law does not help the complainant for any relief.
(iv) Sumatidevi M. Dhanwatay Vs. Union of India and others (supra)
In this case the complainant was assaulted by some unauthorized passengers and her gold, silver, pearl, diamond and other valuables were taken away forcibly. Thousands of persons entered into the compartment and assaulted the passengers including the complainant.
The facts of this case are also quite distinguishable from the case in hand.
(v) Vinod Sanghi Vs. Union of India Railway (supra)
In this case, the complainant was carrying two suitcases and both were tied with the chain to the rings provided below the seat for the said purpose. The complainant took all the safety measures for the purpose of ensuing safety of luggage. At about 2.15 a.m. some unauthorized persons entered into compartment and committed theft of luggage of the complainant and other persons.
In the case in hand, there is nothing to show that complainant took all the safety measures to ensure safety of the luggage. It is not the case of the complainant that some unauthorized persons entered the compartment and committed theft. Therefore this case is also not helpful to the complainant.
The facts of the other three cases :
(vi) Union of India & Another Vs. Manjor H. Pathak (supra)
(vii) Indian Railway & Ors. Vs. Anchal Garg (Supra)
(viii) South Central Railway Vs. Suchi Singh & Ors (Supra)
are distinguishable for the similar reason.
Therefore, the only conclusion that can be drawn is that the case law cited by complainant is also distinguishable and he cannot get any relief on the basis of this case law also.
Resultantly, this complaint fails and is hereby dismissed with no order as to costs.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
02-03-2016
(M.P.Singh Pahwa )
President
(Jarnail Singh )
Member
