(Delivered on 06/12/2021)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL MEMBER.

1.         Appellants   have preferred the present appeal feeling aggrieved by the order dated 21/04/2016 passed by the  learned Additional  District Consumer  Commission, Nagpur in Consumer Complaint No. RBT/CC/13/327 whereby the complaint filed by the complainants under the Consumer Protection Act, 1986 came to dismissed.  

2.         Short facts leading to filing of the present appeal may be narrated as under,

            Complainant No. 1-  Sau. Aruna Harish Wadetiwar  is the wife of  complainant No. 2- Mr. Harish Narayanrao Wadetiwar and both are  resident  of Nagpur. In the year 2012 there was  the marriage of their son  Siddhartha on 17/12/2012 and so  they had gone to Mumbai at the  house of their  daughter  and were returning back  from Mumbai on 18/11/2012  by Vidarbha Express, Train No. 12105 in coach No. B-1 on Berth No. 6 and 8. Complainants  have  contended that  they were  carrying  valuable  ornaments  in the trolley bag  by way of luggage and gold and silver  ornaments  were valued  to the extent of 12,59,492/-.  Complainants have contended that  there was no Security Guard in the coach in which  they were travelling  and some unreserved  passengers  also entered  in the  coach many times  but no action was taken by the TTE despite  objections.  The complainants have alleged that  the TTE did not call the Security Guard for  protection of the reserved passengers. On 19/11/2012 when the complainants  had reached  to their  destination  at Nagpur and opened their  trolley bag  they came to know that  their valuable  gold and silver  ornaments  were stolen and so that they immediately  approached to the Police Station, Central Railway, Nagpur and lodged the report (FIR) regarding theft of Gold Ornaments  worth Rs. 12,70,000/-. Complainants have alleged that an offence  was also registered under  section 379 of I.P.C.  against  the unknown person.  Complainants have alleged that  since the  gold and silver ornaments  were stolen  from their  trolley bag while they  were travelling  in the coach in Vidarbha Express the same  had taken  place due  to sheer  negligence  and deficiency  in service  on the part of the Central Railway and therefore, the O.P. Nos. 1 to 3 were liable  to pay compensation  as well as damages  and so the present complaint.

3.         O.P. Nos. 1 to 3 appeared and filed their written statement on record thereby denying  all the allegations  in toto.  The O.P. Nos. 1 to 3 have denied  that  the  passengers  tried  to contact  the Railway Protection  Force or that  the complainants  have  lodged  any report.  The O.P. Nos. 1 to 3 have taken a plea that no report was lodged to the  Railway Administration  by the  present  complainants.  O.P. Nos. 1 to 3 has also taken a plea that the Railway Administration was not responsible or liable for the loss or damage to the luggage during the course of travelled unless the goods of the passengers were booked  in the luggage van.  O.P. Nos. 1 to 3  have also taken  a plea that   the passengers  had themselves not taken the  necessary  precautions  nor lodged  the report  in time. For the forgoing reasons the O.P.Nos. 1 to 3 had not committed any deficiency in service  and they were  also not liable  to pay any damages or compensation and so the complaint  deserves  to be dismissed.

4.         The complainants have filed their evidence affidavit as well as documents  on record.  O.P.Nos. 1 to 3 also filed  their  evidence affidavit  as well as  written notes of argument.  The learned Additional District Consumer Commission, Nagpur thereafter went through the oral argument, documents  as well as written notes of argument  by both the parties.  After appreciating  the oral  and documentary  evidence  adduced by both the parties the learned Additional District Consumer Commission, Nagpur came to the conclusion that  there was no deficiency in service   on the part of the O.P. Nos. 1 to 3 and complaint was not tenable. Accordingly the learned Additional District Consumer Commission, Nagpur dismissed the complaint  as per order dated 21/04/2016, Against  this order dated 21/04/2016 passed by the learned  Additional District Consumer Commission, Nagpur the present  appellants  have come up in appeal.

5.         We have heard Mr. Robin Somkuwar, learned advocate for the appellants and Mr. Nitin Lambat, learned advocate for the respondent Nos. 1 to 3. We have also perused the record and also gone through the written submission.

6.         At the outset  the learned advocate  for the appellants  have pointed  out that  the  appellants  lodged  the report  in the Police Station, Central Railway promptly  on 19/11/2012 and an offence under section 379 of I.P.C. was also registered.  Learned advocate for the appellants has also drawn our attention to the copy of the F.I.R. and same discloses that an offence of theft was duly registered by the Railway Police Station on 19/11/2012. Secondly, it is vehemently submitted by the learned advocate for the appellants  that the learned Additional District Consumer Commission, Nagpur had not properly  appreciated  the fact that  the  theft of gold ornaments  worth of Rs. 12,70,000/-  had taken place when the appellants  were travelling  in the coach of Vidarbha Express.  According to the learned advocate for the appellants  the O.P. Nos. 1 to 3 had indulged  in deficiency  in service  as  the O.P. Nos. 1 to 3 had not  taken  utmost care regarding  the safety  of luggage of the passengers including  the  appellants. The learned advocate for the appellants has contended that the passengers from unreserved  compartments were  also entering  in the reserved coach.  Mr. Nitin Lambat, learned advocate for the respondent Nos. 1 to 3 has strongly rebutted this contention and has pointed out that the Railway Administration was not at all liable or responsible for luggage of the passengers who were travelling by train unless the luggage is duly booked in luggage van.  In this respect, the learned advocate for the respondent Nos. 1 to 3 has drawn our attention also to the section 106 of the Railway’s Regulations. There is no dispute at all regarding the fact that the theft had taken place of gold ornaments owned by the present appellants. There is also no dispute that  theft was  while in transit.  It is also  no dispute  that  the appellants  had also  lodged  report  with  the Railway Police Station on 19/11/2012 promptly and  an offence  came to be registered  under section 379 of I.P.C. but  the  only question  to be considered  is  whether  the Railway Administration  or respondent Nos. 1 to 3 had indulged  in deficiency  in service or were liable  for compensation.

7.         We find that  the learned Additional District Consumer Commission, Nagpur has also  dealt with the Section 106 of Railway Regulations  which laid down  that  the Railway Administration cannot be held liable  for loss of goods   or luggage unless they  are  properly booked with the  Railway Administration. After dealing  with  the Section 106 of the Railway Regulations  the learned Additional District Consumer Commission, Nagpur has observed  that the present   complainants  have not  led  any evidence  to show that  the O.P. Nos. 1 to 3 were  not liable  to pay compensation  or had committed  any  deficiency  in service.  The learned advocate for the appellants  has challenged  these findings  and  in order to  support  his  contentions has relied  upon one judgment  delivered  by the Hon’ble Supreme Court in the case of Sumatidevi Dhanwatay Vs. Union of India and Ors. in Appeal  (Civil) No. 2252 of 1999.  We have gone through the same judgment.  In that case  also  the  appellant  was travelling  by 1^st Class Air Conditioned Berth with gold and silver  ornaments  while she was travelling  from Nagpur to Bombay by Howrah-Bombay Mail but in that case facts were  rather  different as  during the course of journey  thousands  of  persons  entered  in to  the compartment  and assaulted  the passengers including  the appellant. Moreover,  the crowed   became  violent and  they broke the doors, window bars , glass panels  and also  assaulted  the passengers  and so  the appellant  had  pulled  the  alarm chain and  when the train  stopped at Igatpuri Station she approached  the Railway  Authorities  for protection  but  no assistance  was given.  Appellant  thereafter lodged the complaint  claiming compensation  of Rs. 9,32,256/-  In that case  the State  Consumer Commission allowed the claim of the appellant  but the same  was dismissed  by the Hon’ble National Commission and  appeal was  preferred before  the Hon’ble Supreme Court. In that connection the Hon’ble Supreme Court had observed that there was negligence on the part of the Railway Administration.  It is thus clear that  the facts  in the aforecited  case were on much different footing since huge crowed  had entered  in to the  train compartment  and had broken  doors and window panels  beside assaulting  the appellant who are passenger.  In that  context the Hon’ble Supreme Court had held  the  Railway Administration  liable  but in the  present case  the  complainants  have come up only with the allegation  of theft of luggage or goods.  We are therefore of the view that the case of Sumatidevi Dhanwatay Vs. Union of India and Ors. in Appeal  (Civil) No. 2252 of 1999 relied  upon by the learned advocate for the appellants  would  not go to help in the case of  the  appellants.

8.         During the course of argument Mr. Nitin Lambat, learned advocate for the respondent Nos. 1 to 3 has also relied  upon  one judgment  delivered by the Hon’ble Supreme Court in the case of Vijay Kumar Jain Vs. Union of India & Anr.  in Special Leave  to Appeal (Civil) Nos. 34738-34739 of 2012.  We have gone through the same judgment.  In that case also  the facts were  identical  and petitioners  had boarded  the Train No. 3007 UP Udhyan Abha  Express  on 23/01/2004 and  had occupied berth  No. 41 in Sleeper Coach S-2 and placed his attachi case on berth No. 43 because  the same was not occupied. The petitioner dozed off  and he found that his attachi case  was missing.  The petitioner has lodged  F.I.R. and thereafter also filed complaint under section 12 of the Consumer Protection Act. In that matter the District Consumer Forum dismissed the complaint by holding the petitioner  to be  negligent.  In that context   the Hon’ble  Supreme Court had held that  the Railway cannot be   held responsible for the  alleged loss of attachi case by way of theft. Here also the facts are quite similar and so we feel that the case of   Vijay Kumar Jain Vs. Union of India & Anr.  (Cited supra) relied  upon by  Mr. Nitin Lambat, learned advocate for the respondent Nos. 1 to 3 will be squarely  applicable  to the facts of our case.  In the light of aforesaid discussion, we are  unable to accept  the contention advanced  by the learned advocate for the appellants  that the learned Additional District Consumer Commission, Nagpur  has not properly  appreciated  the oral, documentary  evidence on record  or  that  the findings given  were erroneous  in nature. On the other hand, we find that the learned Additional District Consumer Commission, Nagpur has elaborately dealt with material placed on record and  given findings which cannot be termed  as perverse. We do not find any substance in the appeal  and proceed to pass the following  order.

ORDER

1. Appeal is dismissed.
2. No order as to costs.

3. Copy of order be furnished to both of parties, free of cost.