BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 74/10.
THIS THE 23rd DAY OF MAY 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Sri. Nathulal Agarwal, S/o. Late Bankelal
Agarwal, aged about 61 years, R/o. 1-8-63,
Brahin Wadi, Station Road, Raichur.
//VERSUS//
OPPOSITE PARTY :- 1. The Union of India, Central Railway, Chatra
Pathi Shivaji Terminus, MUMBAI.
2. Station Manager, Raichur Railway Station,
Raichur.
CLAIM : For to direct the opposite to pay sum of Rs.
23,000/-, to pay a sum of Rs. 1,00,000/- with interest, cost and other reliefs.
Date of institution :- 23-09-10.
Notice served :- 03-11-10.
Date of disposal :- 23-05-11.
Complainant represented by Sri. M.K. Daftary & Daftari, Advocate.
Opposite Nos. 1 & 2 represented by Sri. D. Suresh, Advocate.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant by name Nathulal Agarwal against the opposite Nos. 1 & 2 Central Railway U/sec. 12 of Consumer Protection Act for to direct the opposite to pay sum of Rs. 23,000/-, which is amount lot by him in the poverty to pay a sum of Rs. 1,00,000/- as a compensation with interest, cost and other reliefs.
2. The brief facts of the complainant’s case are that, he traveled on 16-02-09 in Train No. 6381 from Pune to Raichur vide PNR No. 8450341434 along with another in seat No. 31 & 32 of coach No. S-10. There were no TTE or coach attendants available in the train to control unauthorized passengers from entering in the coach. Nobody was available to provide seats for reserved passengers. On that day, due to rush of unauthorized passengers moving in the coach, some persons pick pocketed an amount of Rs. 23,000/- from his pocket. He made his good efforts to make a complaint in that regard to TTE or any other authorized persons regarding theft, but no such authorities or persons available to him in the coach or in various Railway Stations in between Pune to Raichur. Totally, there was uncomfortable journey in the said coach. After reaching Raichur, he made complaint before the Railway Police and also he made representations to this Railway Authorities, but none of them shown interest in tracing out the pick pocketed amount or they have not convinced him for non availability of the services of TTE or any other authorities, accordingly, he filed this complaint for the reliefs as prayed in his complaint.
3. Opposite Nos. 1 & 2 appeared in this case through Advocate, filed its written version by contending that, complaint filed by the complainant is not maintainable, in view of section 80 of CPC. This Forum has no jurisdiction to entertain the complaint, in view of Railways Claims Tribunal Act of 1987. TTE who were on duty on that day, more particularly in coach No. 10 available in the coach itself, they have verified passengers with their tickets and signed the chart regarding the number of passengers traveled on that day in coach No-10. All other allegations made by the complainant are specifically denied and thereby it prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, his journey from Pune to Raichur on 16-02-09 in coach No. S-10 in seat No. 31 & 32 was unpleasant due to Boarding of unauthorized passengers in the coach No.10 TTE or coach attendants were present to control the crowd, in view of the said crowd, somebody pick pocketed his amount of Rs. 23,000/-, thereafter no Railway TTE or other official present in any one of the coach for to make complaint till reaching his destination at Raichur. After reaching Railway, he filed complaint before Railway Police Raichur and before opposites, but all of them shown their negligence in hearing his complaint and thereby both opposites found guilty under deficiency in their services.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, who is noted as PW-1. The documents Ex.P-1 to Ex.P-6 are marked. Written arguments filed. On the other hand, affidavit-evidence of TTE Central Railway, Sholapur was filed, he was noted as RW-1. The documents Ex.R-1 to Ex.R-3 are marked.
7. Among the documents filed by the complainant Ex.P-1 is the Railway Ticket in which date of boarding of the train is shown as 16-02-09 with reservation in coach No. S-10. Ex.P-2 is the copy of the police complaint filed by this complainant at Raichur before Railway Police on 17-02-09. Ex.P-3 is the Reminder letter by complainant to G.M. Railway dt. 24-08-09. Ex.P-4 is the acknowledgment having receipt of the said complaint. Ex.P-5 is another letter of the complainant dt. 31-01-10 and Ex.P-6 is the Reminder letter dt. 05-03-10.
8. The documents filed by the opposites are Ex.R-1 is the Railway Chart, Ex.R-2 is the Exceptional Data Report and Ex.R-3 is the Excess Fair collected by the authority towards journey of complainant in coach No. S-10.
9. In the light of the pleadings of the parties, their respective evidences and documentary evidences referred above. We have noticed some of the following undisputed facts in between the parties are:-
1. That on 16-02-09, complainant and another one have traveled in coach No. S-10 in Train No. 6381 with Berth Ticket PNR No. 8450341434 in seat No. 31 & 32 from Pune to Raichur.
2. Specifically, it is undisputed fact that, complainant lost his amount of Rs. 23,000/- due to pick pocket which was kept in watch pocket while in the said transit.
3. It is undisputed fact that, complainant has filed his complaint regarding pick pocketing of his amount of Rs. 23,000/- before Railway Police, Raichur on 17-02-09 and before concerned Railway Authorities at Raichur.
4. It is further undisputed fact that, till today complainant’s total amount not recovered or part of it, and not give any convincing explanations to him, for such incident and allegation.
10. Keeping in view of these undisputed facts between the parties. Now, let us take up the contentions of the opposite, one by one to see as to whether, these contentions are sufficient to reject this complaint.
11. The first contention of the opposite is that, this Forum has no jurisdiction to entertain this complaint, and this complaint is not maintainable before this Consumer Forum, in view of section 13 & 15 of Railway Claims Tribunal Act of 1987.
12. We have considered all these submissions made by the learned advocate for opposite in this regard, we are of the view that, these contentions are not acceptable contentions in view of section 3 of C.P. Act. Section 3 of the said Act, is giving the suitable answers to those two points raised by the opposites and thereby, we have come to a conclusion that, the consumer complaint filed by the complainant is maintainable and this Forum has got jurisdiction to deal with the subject matter of the complaint, accordingly we have not discussed the above said legal facts in detail by relying upon the ruling, A.S. Chadra V/s. Union of India reported in 1992-ALT-1-123.
13. The next contention raised by the learned advocate for opposite is that, complainant has not complied the necessary requirements of section 80 CPC before filing this complaint against Railway and thereby the complaint in the present Forum is not maintainable.
14. We are of the view that, the above fact is now became a settled law that, consumer complaint is not a civil suit. Section 80 of CPC cannot be made applicable to consumer complaint. Issuing of prior mandatory notice either U/section 80 of CPC or under any provisions of special enactment is not necessary and also not required. In this regard we have relied upon the various rulings:
1) MP and Another V/s. S.H. Tribhuvan Prasad Chaturvedi & Another reported in I (1991) CPJ 455.
2) AIR 1969 SC 1300 Deerendranath v/s. Sudeerchandra.
3) AIR 1991 Bombay 394 Vasant Amba V/s. Bombay Municipalities.
4) AIR 1986 Kerala 219 M/s. Kerala Transport Company V/s. Appovu Cables.
Hence, this contention of the opposite is rejected, as it is not correct interpretation of provisions of C.P. Act.
15. The main contention of the opposite among others as noted above is that, complainant has not proved deficiency in service on the part of opposite. It is contended that, the affidavit-evidence filed by the complainant is not at all evidence as required under Indian Evidence Act. Evidence means examination in chief, as well as cross examination, but in present proceedings, no opportunity for cross examination was provided, as such, the affidavit-evidence of complainant is not an evidence. Filing interrogatories by the opposite is also not a cross-examination of complainant, accordingly, it prayed by him to discard the total affidavit-evidence of complainant.
16. In this regard, we have referred a recent ruling reported in 2011 CTJ 556 (CP) (SCDRC) HDFC Bank Ltd., V/s. Lily Biswas.
17. In the said case, their lordships of the State Commission of West Bengal, Kolkatta, have discussed similar facts as raised by the learned advocate for opposite in this case. Their lordships in that cse observed as:
“The provision of C.P. Act do not provide any scope of cross-examination of witness on dock. Rather, it has prescribed that, the evidence matters be disposed by swearing affidavit evidence and eliciting information by putting questionnaires to them.
18. The Hon’ble National Commission, dealt, similar case, reported in CTJ 2010 (NCDRC) 677 Mony Square Ltd., V/s. vinutha Agarwal & Ors.
19. In another case reported in 2009 (9) SCC 221 Mallayya kumar Ganguly V/s. Dr. Sukumar Mukarjee & Others, their lordships of the Hon’ble Supreme Court discussed regarding the applicability of the provisions of Indian Evidence Act and observed that;
“Complaints under C.P. Act before the Consumer Forum are tried summarily and Evidence Act, in terms not applicable i.e, provisions of Evidence Act are not applicable and the Forum under the Act are to follow the principles of the natural justice.
20. The said principles were reaffirmed in a case V.Kishan Rao V/s. NikhilSuperSpecialtyHospital and another, reported in 2010 SAR Civil 550. In view clear position of the settled law, we are of the view that, the said contention of the opposite to reject the affidavit-evidence of complainant is not tenable.
21. Let us examine, the main allegations of the complainant, it is a fact that, complainant gave his complaint regarding pick pocketing of Rs. 23,000/- from his pocket on 17-02-09 before the Railway Police, Raichur. The said theft took place in his journey at night hours, while he was sleeping in reservation coach. The facts noted in the complaint Ex.P-2 and the reminder letters of him on different dates vide documents Ex.P-3, Ex.P-5 & Ex.P-6 including the reply of opposite to the complainant vide Ex.P-4 are supporting the above incident.
22. In support of the case of complainant, he relied on the following rulings:
1. II (2006) CPJ 142 (NC) Vinod Singh V/s. Union of India Railway.
2. III (2007) CPJ 86 (NC) Union of India & Anr. V/s. Alok Kumar.
3. IV (2005) CPJ 79 (NC) Divisional Railway Manager & Anr V/s. Abhishanker Adhikari.
4. IV (2005) CPJ 57 (NC) GM South Central Railway V/s. R.K Kumar & Anr.
23. Opposite not referred any authorities in support of its contention. From the document of opposite Ex.R-1 amended chart and EDR report Ex.R-2 we can say that, TTE checked passengers tickets, who traveled on that day in coach No. S-10. Except this fact, nothing can be attributed from these documents to show that, the duty TTE or any other coach guards were present throughout night on that day or till reaching the destination by this complainant. Similarly Ex.R-3 excess fair ticket is not helping in any way to the opposites in support of its contention.
24. In view of the principles of the rulings of the Hon’ble National Commission in a case cited at Sl.No.1 and other cases noted at Sl.No-2 to 4 above. We have accepted the affidavit-evidence of PW- 1 and his documents, and came to a conclusion that, opposite authority or officers of it failed in providing perfect service to the complainant or to the other passengers in coach No. S-10 and failed to protect life and property of complainant during his journey. Other submissions made by the learned advocate for opposite are not helpful for it, to destroy the affidavit-evidence of complainant and his documents. Hence we are of the view that, it is a clear cut case of deficiency in service by the opposite Railway towards complainant and the complainant proved the said fact before us and thereby we answered Point No-1 in affirmative.
POINT NO.2:-
25. As regards to the reliefs prayed by the complainant, we have gone through the principles of the rulings of the Hon’ble National Commission cited at Sl.No. 1 & 2 above, we are of the view that, the complainant lost an amount of Rs. 23000/- and also his journey was uncomfortable, because of the negligence of the opposite Railway officers, as such, it is a proper and fit case to award a compensation amount of Rs. 23,000/- which is an amunt equal to that of pick pocketed amount to the complainant accordingly, the complainant is entitled to recover an amount of Rs 23,000/- as a compensation from the opposite Nos. 1 & 2 jointly and severally.
26. The complainant is also entitled to get a lumpsum amount of Rs. 3,000/- under the head of deficiency in service by the opposite. Similarly he also entitled to get an amount of Rs. 3,000/- towards cost of this litigation. Hence the complainant entitled to recover a total amount of Rs. 29,000/- with interest at the rate of 9% p.a. on the total sum of Rs. 29,000/- from the date of this complaint till realization of the full amount, accordingly we answered Point No-2.
POINT NO.3:-
27. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed with cost.
The complainant is entitled to recover a total amount of Rs. 29,000/- from opposite Nos. 1 & 2 jointly and severally.
The complainant is also entitled to get interest at the rate of 9% p.a. on the above total sum of Rs. 29,000/- from the date of the complaint till realization of the full amount.
Opposites have been given one month time to make the payment of the said amount with interest from the date of this judgment.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 23-05-11)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.
