SRI NILAKANTHA PANDA, PRESIDENT

                The Complainant has filed this complaint petition, U/s – 12 & 13 of erstwhile Consumer Protection Act, 1986, read as U/s-35 of C.P.A.-2019 of the new Act (here-in-after called as the “C.P. Act - 2019”), on dated 17/01/2015, alleging a “deficiency-in-service” by the Ops, where OP No.1 is the General Manager, S.E.Railways represented on behalf of the “Union of India”, OP No.2 is the Divisional Commercial Manager, East Coast Railway, Khurda Division and OP No.3 is the Station Superintendent, Balasore Railway Station, Balasore.  

                That the factual matrix of this case is that on 04/11/2014, the complainant along with his wife and one child of seven months old, had been to their home town by boarding from Balasore to Vishakhapatnam in Coach No.S-5, Seat No.50 & 52 by Shalimar-Vishakhapatnam Superfast Express bearing train No.22853 and kept his personal luggage under the lower berth. That after mid night, after passing of Khurda Station, at around 01:40 A.M. (Dated 05/11/2014), the complainant went to sleep and woke up when the train reached at Berhampur Station and went for toilet and after returning he found his maroon coloured VIP suitcase containing valuables was missing.

                He searched the entire berth, but could not trace out the same. At that time, he found not a single personnel of Railway authority, not even the TTE was present in the coach to attend the passengers. Finding no other way out, after getting down from train, the complainant lodged a FIR before the Railway Police, Vishakhapatnam Railway Station on 05/11/2014, so also on advice of the Vizac RPF, reported the matter before IIC, Berhampur Govt. Railway Police Station on 08/12/2014.

                That during the above described situation, while the instant complainant, runs from pillar to post, none of the OPs No -2, has turnout to complainant’s help for, either to tress missing suitcase and / or to help him to get any legal remedy. 

                The above acts of the OPs speaks itself that, both the OPs wilfully neglected both the complainant & his belongings and therefore, both the Ops are jointly and severally liable to compensate the complainant for their negligence and illegalities committed towards the complainant. Thus, the complainant, having been left with no other option, was constrained to file this case with the reliefs as sought for in his complaint petition.

                The cause of action to file this case arose on 05/11/2014 when the suitcase of the complainant was alleged to be missing and the complainant lodged complaint. Hence, this case.

                To substantiate his case, the complainant has relied on the following documents, which are placed in the record, as mentioned hereunder-

1. Photocopy of ticket booking form, issued by its Employer.
2. Photocopy of journey ticket.
3. Photocopy of complaint dated 05/11/.2014 (Vizag RPF).
4.  Photocopy of complaint dated 8.12.2014 (Ber’pur GRP).
5. Photocopy of police papers in respect of Berhampur GRPS Case No.57 dated 07/12/2014.
6. Case citation Revision Petition 602/2013 of National Commission, Northern Railway VS Balbir Singh of State Commission Chandigarh, Northern Railway VS Anupama Sahrma of State Commission Chandigarh, UOI VS Sanjev Dilsukharani of Nation Commission & UOI VS Vishal Kumar Dev of State Commission (Odisha).

                As it appears from the case record that notices were issued against the Ops and the OP No.1 & 3 have received the notices, but they did not choose to appear in this case for which both they were set ex parte. OP No.2 made his appearance through its council and filed written version.

                According to OP No.2, the complainant booked the ticket for his journey with his family i.e. wife and child of 7 months from Balasore to Vishakhapatnam by Shalimar-Vishakhapatnam Superfast Express Train No.22852 dated 04/11/2014 in Coach No.S-5 and Seat No.50 & 52. The complainant has neither booked the alleged articles nor insured at luggage counter for security of the articles and he has kept the luggage with him in his own risk. So, it is the responsibility of complainant to safeguard his own properties. Therefore, invoking Section 100 of Railway Act, the question of deficiency in service on the part of the Railway Administration cannot be attributed to. Hence, it is prayed that the complaint may be dismissed on merit with cost.   

                To substantiate his case, the OP has relied on the following citation, which is placed in the record, as mentioned hereunder-

1. Photocopy National Commission Revision Petition – Smt. Chandalika KA VS North Zone railways.

                That in view of the above averments of parties, the points for determination in this case are as follows:-

(i)            Whether the Complainant is a Consumer or not?

(ii)           Whether the complainant has cause of action to file this case?

(iii)          Whether this consumer case is maintainable?

(iv)          Whether there is any deficiency in service on the part of the OPs?

(v)          Whether the complainant is entitled to get the relief, as sought for?

(vi)          To what other relief(s), the Complainant is entitled to?

F   I  N  D  I  N  G  S

                First of all it is to be ascertained as to whether the complainant is a “Consumer” or not. From the averments of the pleadings of both the parties and document produced on behalf of the complainant vide Annexure- 1 & 2, it is clearly admitted and established that the complainant purchased a proper reservation ticket on appropriate payment of consideration, for hiring / availing Services of Railway Administration, for his journey with his family i.e. wife and child of 07 months from Balasore to Vishakhapatnam by Shalimar-Vishakhapatnam Superfast Express Train No.22852 on dated 04/11/2014 in Coach No.S-5 and Seat No.50 & 52. Therefore, the complainant is well covered under the previews of definition of a “Consumer” as defined under the provisions of the Consumer Protection Act, 2019.   

                That to arrive at conclusion, weather, there is a “Cause of Action” arose / lies on the Railway Administration, the following points, as stated by both complainant & respondent, are to be addressed collectively.  They are as under:-,

1. As no Extra Charge / Luggage Charge / Luggage Insurance was paid, Railway is not liable for luggage mishandling.
2. That Good and / or luggage as carried by passengers – Difference of Good & Luggage in context to Railways Act and its.
3. Responsibility and duties of a TTE in reservation compartment, as enumerated in the Railway Act.
4. Extra status to be enjoyed by the “Reservation Ticket Holder”
5. Applicability of Sec – 100 of Railway Act, to this case matter.
6. Denial of the fact of Theft, as claimed by complainant.

                That, it is an admitted fact that, as per the prevailing Railway Rule every “ valid ticket” is allowed to carry luggage up to 40 K.G., with it. Hence payment of any additional charges in any mode is not required for its “safety”.  That it is quite evident that the complainant has paid for two full tickets, whereby it is entitle to carry personal luggage up to 80 K.G. That for minimum standard of safety, the fee / charges are already included in the ticket itself. That as the OP did not dispute in this context about bulk of luggage carried, this plea for extra charges is not acceptable.

                That while arguing during the hearing of this case matter, the Ld. Counsel of OP argued that, the complainant has mistakenly sheltered under a wrong court, rather should have resorted to “Railway Claim Tribunal” for getting appropriate remedy for alleged loss of belongings. That to ascertain the validity of claim of Ld Counsel, this Commission is of view that the said RCT is meant for “Goods”, not for “luggage”. That the said Railway Act has already defined “Goods” & “Luggage”, in clause no 19 & 23 of Sec 2 of it. A common reading would mean “Luggage” means personal belongings, may be carried by the person or be entrusted to rail authority. Whereas “Goods” means voluminous articles, may require human / animal effort for movement, for transport. The RCT in this context deals with loss, distraction, damage and / or non-delivery of “Goods” only, not for the “Luggage” carried by passenger. Last but not the least, RCT Act Sec-13 and rest of the relevant sections deals with compensation for loss, destruction, damage, deterioration, non-delivery of Booked Goods only. Whereas, on the contrary, this commission decides & deals with the question of remedy & redressal for “Deficiency” on the part of the OP, for loss of “luggage”, which squarely does not come under exclusion clause S-15 of the Railway Act and hence barring S-15 of the same Act does not act upon. Hence it is concluded by this commission that complainant has rightly sheltered under this court.

                That as regards the issue of “negligence” of the Railway Administration, a list of duties is prescribed by the rail administration itself heading as “TTE for Sleeper Coaches”, which is invoked here for discussion.  That out of rest of the duties as prescribed, the duties arranged against serial number 4, 14, 16, & 17 are very relevant in connection to the present case matter. They are;-

                “4. He shall check the tickets of the passengers in the coach, guide them to their berth / seats and prevent unauthorized persons form the coach. He shall in particular ensure that persons holding platform tickets, who come to see off or receive passengers do not enter the coach.

                14. He shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required.

                16. He shall ensure that the end doors of vestibule trains are kept locked between 22.00 and 06.00 hrs., to prevent outsiders entering the coach.

                17. He shall remain vigilant particularly during night time and ensure the intruders, beggars, hawkers and unauthorized persons do not enter the coach.”

                That according to the above settled rule of railway itself, a TTE is required to remain very vigilant on the train and ensure no person other than valid ticket holder should enter in to it, even person holding platform ticket should not also enter the train to see off and / or receive passengers. That in addition to the on said duties, a TTE is required to latch the couch, lock the doors and ensure no beggars, hawkers, unauthorized persons, intruder  enter the couch and ensures every passenger for their safely landing at their destination. That in this stage it is very important to discuss the argument that was presented by the complainant that during the travel time period of the complainant, no TTE and / or any other railway staff visited the couch. That to substantiate its claim the complainant has placed the booked travelling ticket, which is not checked / counter signed by any of the railway authority / ies. That in contrary to this argument the Ld Council of OP argued, that the TTE was very much present on the train. That for non-checking of the ticket, the Council of OP argued that the ticker holder (Complainant) did not travel, on that date against the booked ticket. But the Council of OP could not able to produce any evidence of that ticket was re-allotted to some other passenger and / or to on-train RAC ticket holder. That in an additional ground the Council of Complainant, argued that if the complainant did not travel on that day, then how come he lodged FIR at the Vizac GRP, in appropriate day & time. Hence this Commission safely arrives at the conclusion that there was no TTE in the train during complainant’s travel time and travel distance. Hence it is safely believed and relied that due to negligence of the Railway (TTE) the luggage of the complainant got stolen.

                That beyond the above technical & legal analysis, it is an admitted and experienced fact that the price difference between un-reserved ticket & reserved-ticket, is quite high, for this reason, the passenger is rightfully entitled to a “standard level” of comfort, security & safety. That it is felt and established that the above standard was not maintained / ensured by the railway administration. That basing on above analysis supra, this Commission arrives at the conclusion that the complainant’s luggage was “stolen” due to “negligence” on the part of the OPs, which amounts to a deficiency on the part of the OP.

                Hence upon travelling through the substance, as aforesaid and described circumstances leads this Commission to arrive at unanimous conclusion that there is gross deficiency on both the part of the OPs and all the OPs are jointly and severally liable for loss incurred on the part of the complainant.

                Having regards to our finding reflected above, the Complaint petition is allowed and both OPs are jointly & severally set liable.

                So, now upon careful consideration of all the materials available in the case record vis-a-vis submission made by complainant & O.Ps, this Commission is of the unanimous opinion that the OPs have not adjudicated their dispute properly before the Commission. There is no solution arrived by the O.Ps for the loss sustained / suffered by the Complainant incurring out of deficiency on the part of OPs, which legally termed as deficiency-in-service by the O.Ps. Therefore, the complainant is reserves the right to be entitled to get the relief as sought for.

                Hence, it is ordered –

                                                                                                  O   R   D   E   R

                Having regard to the judgement reflected above, the Complaint Petition of the instant Consumer bears merit and hence allowed on contest against O.Ps No.2 & on exparte against O.Ps No.1 & 3. That this Commission is of the unanimous opinion that there is a gross deficiency on the part of the OP No -1, as that of OP No -2. Hence the O.P No – 1 & 2, are hereby severally and jointly set liable for their deficiency of service. The Ops are hereby directed to;-

1. To pay to the complainant a sum of Rs 03, 60, 000/-, along with interest @9.00 % P.A. from cause of action (05/11/2014), till date of actual payment, for cost of theft of luggage.
2. To pay to the complainant a sum of Rs 05, 000/-, for litigation expenses.
3. To pay to the complainant a sum of Rs Rs 03, 60, 000/- for compensation and mental agony as suffer by the complainant.
4. That delay in compliance of this order for manner for compliance of this order, for both the OPs, shall carry fine of Rs 500/-, per day, payable by the defaulter OP/s to the complainant. All the aforesaid amounts will be paid by the Ops to the complainant within a period of 60 days from receipt of this order.

                That deferment in any manner / mode / reason / step for compliance of this order, both the OPs, shall carry an additional fine of Rs 750/-, per day and an additional interest of @ 12.00% P.M., upon Order No 1 to 4, payable by the defaulter OP/s to the complainant.

                In case of failure by any of the O.Ps to comply any the orders as abovementioned, within the aforesaid stipulated time frame, the Complainant is at liberty to realize the same in the shape of cash, kind and / or in any other mode as  aforementioned, from the O.P/s as per prevailing law.

                Pronounced in the open Court of this Commission on this day i.e. the 11th day of September, 2023 given under my Signature & Seal of the commission.