The case of the complainant Shrimati Mira Chakraborty, under Section-12 of Consumer Protection Act, 1986, in essence, is that for annaprashan ceremony as well as reception party of her grandson Snehal Chakraborty at Jadavpur, Kolkata to be hold on 23.09.2008 while she was proceeding towards Kolkata on 02.09.2008 by availing Uttar Banga Express Train (No.3148) in reservation compartment at sleeper class in Coach No.S.E.-1, berth No.23 from New Coochbehar Station, her husband accompanied her for boarding the train and at that time the complainant boarded the train with her bag and baggage including her purse-cum-ladies bag wherein she put all gold ornaments, ATM card with railway ticket and other important articles, prescriptions and medicines etc. And thus the said train reached at NJP station at about 9:30 P.M.. At NJP station her ticket was verified by the T.T.E. and since then no T.T.E. and police personnel posted and attendant in the said coach and even no patrol duty was made by the concerned police personnel for which the said coach remained unsafe and unprotected. Before starting sleeping the complainant, checked her luggage and putting her ladies bag below her head and before going to sleep she pulled down shutter and window glasses. While she was travelling, she found during night several unauthorized passengers having no reservation document entered into the said compartment un-authorisedly. At around 12:30 A.M. to 1:00 A.M. on 03.09.2008 while she suddenly woke up found no her said bag containing ornaments, documents etc and she found somehow that ladies bag was taken by the miscreant while many of the lights of the coach were switched off and there was gloomy condition inside the said coach. At first without having her said ladies bag she started shouting by saying that her bag had been stolen, she rushed to the railway guard, police or T.T.E. for lodging her complaint but she found no police personnel or T.T.E., or guard. Being a helpless lady, the complainant applied her all efforts her recover the stoles side bag from the running train but all her efforts turned futile for want of railway guard or T.T.E. After her pulling the chain, the train reached the Maldah Town Station. However, as per instruction of co-passenger she did not leave the train for lodging any complaint before the Maldah Town Station as because for such leaving she must have to leave the train. However, the complainant thereafter went to GRP Post of Maldah station and lodged a complaint in this respect thereto. On the basis of that complaint GRPS Case No.24/2008 under Section 379 dated 03.09.2008 was started. By filing an instant application the complainant claimed the reliefs, so that the value of the stolen property are to be awarded in her favour.
The op nos. 1 & 2 contested this case by filing written version and denied all material allegations as alleged against ops. It is contended inter alia in the said written version to the effect that since alleged occurrence the Maldah GRPS Case No.24/2008 dated 03.09.2008 under Section-379 IPC has been started. After investigation the I.O. of that case submitted final report being No. 10/2009 dated-27.04.2009. The ops by filing supplementary written version admitted that the complainant was the passenger of the train in question under the above mentioned coach and berth as mentioned by her. As the complainant did not raise any objection regarding the final report she is not entitled to get any relief as sought for. It is also contended that as the complainant did not adduce any cogent evidence, in support of her case, she is not entitled to get any relief as sought for. In the circumstances, the ops have prayed for dismissal of the case with cost.
Under the above averment both parties went on hearing with the following points.
Points to be decided:-
1) Whether the complainant is entitled to get reliefs as sought for.
2) To what other relief/reliefs is the complainant entitled to?
Decision with reasons
Point Nos. 1 & 2 –
Both these points are taken up together for consideration for the sake of convenience as they are interlinked and interrelated.
On abstracting the pleadings of the both parties we got relevant ingredient to dispose of this case.
Admittedly, the complainant was the passenger of Uttar Banga Express train (Train No.3148) in reservation compartment at sleeper class in coach No.S.E.-1, berth No.23 dated 02.09.2008. Admittedly, the F.I.R. in question has been lodged by her at Maldah GRPS. It is found from the record that I.O. after investigation submitted final report against accused in final form. In course of hearing argument, unfortunately, the ld. Advocate of the op could not satisfy us as to why the complainant was not examined during investigation of the said GRPS case. That apart the ops did not adduce any cogent evidence to the effect that the complainant ever accepted the said final report.
In course of hearing argument though the ld. Advocate of the op after drawing our attention over the Section-100 of Railway Act submitted that as the valuable goods/articles i.e. gold, ornaments etc. were not properly booked in the Railway Authority according to law, the complainant is not entitled to get any relief as sought for, but according to decision reported in 2010 CTJ 275 (CP) (NCDRC) (Union of India , Ministry of Railways & Ors. - Vs – J. S. Kunwar) we got materials to say as the reserveed coach was not remained with proper attendant, the Railway Authority will be liable to pay the claimed amount as sought for. In this connection we would like to mention that in view of above mentioned decision it is to be said that if the passenger having reservation gets no help from the attendant of the coach, it is to be presumed that there was sufficient deficiency in service as alleged against Railway Authority. Considering this circumstances, we would like to mention that there was deficiency in service in absence of coach attendant, and according the complainant is entitled to get reliefs as sought for. It is not evident that the complainant was examined by the I.O. during investigation of the above mentioned GRPS case.
After close scrutiny of the both parties’ case, as well as the documents filed by the parties in connection with this case and after having regard to the evidence on record as adduced by the parties and also after having regard to the arguments advanced by both parties we are inclined to hold that to rebut the contents of the complaint as well as the evidence adduced on behalf of the complainant was unfortunately no evidence has been adduced on behalf of the op. After close scrutiny of the entire record we got materials to opine that according to statement of loss of the articles as mentioned in the GRPS Case No.24/2008 dated 03.09.2008 under Section 379, the complainant is not entitled to get the award on silver item/ornaments of Rs.3,000/- and cash of Rs.4200/-. That apart this Forum could not get any cogent evidence to rebut the statement of the complainant in relation to theft or stolen of the articles mentioned in Sl. No.1 to 6 as fully described in schedule to the complaint. In the circumstances, we do hold that the complainant is entitled to get reliefs in part as mentioned in the complaint.
Thus the case succeeds in part.
Hence, it is
ORDERED
That the Consumer Case No.2011-73 under Section 12 of Consumer Protection Act, 1986 be and the same is decreed on contest in part against the ops with cost of Rs.5,000/- (Rupees five thousand).
The ops are directed jointly or severally to pay the sum of Rs.1,47,000/- (Rupees one lakh forty-seven thousand) in favour of the complainant for valuation of the stolen property as mentioned in Sl. No. 1 to 6 of the schedule to the complaint.
The ops are further directed to pay a sum of Rs.30,000/- (Rupees thirty thousand) as compensation for mental pain, agony and trauma suffered by the complainant.
If the ops fails to liquidate the above mentioned decretal dues within one month from this date, in that case the complainant is to recover the said entire decretal amount along with interest @10% p.a. to be calculated on and from the filing of the case till recovery of the entire decretal amount by filing this decree into execution as per provision of law.
