PER MR. ROHIT KUMAR SINGH

1.       The present Revision Petition No. 1104 of 2019 has been filed by the Petitioners under Section 58(1)(b) of the Consumer Protection Act, 2019 against the impugned order dated 07.03.2019 passed by the Hon’ble State Consumer Disputes Redressal Commission, Chhattisgarh in First Appeal No. 881/2018. The State Commission’s order quashed the impugned order dated 25.08.2018 passed by the District Forum in Consumer Complaint No. 17/899.

2.       For convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3.       Brief facts of the case, as per the Complainant are that Complainant alongwith his wife and children were travelling in Amarkantak Express on 09.05.2017 from Katni, Madhya Pradesh to Durg, Chhattisgarh in a sleeper coach. The family had an American Tourister bag containing cash amounting to Rs.1,25,000 approximately, gold jewellery and silver jewellery, all of which was stolen. The total value of all the articles in the bag, including cash, was estimated to be Rs.9,35,300. The Complainant lodged an FIR with the GRP Thana at Railway Station Durg.

4.       The Complainant filed a Consumer Complaint No. CC/17/899 before the District Consumer Disputes Redressal Forum, Durg. The District Forum, vide its order dated 25.08.2018 directed the Respondent/Opposite Party Nos. 1, 2 and 3 jointly and severally to refund the entire amount of Rs.9,35,300/-. The Respondents were also held liable to pay an amount of Rs.20,000/- towards compensation and Rs.10,000 towards litigation expenses.

5.       The Respondents filed an Appeal No. FA/18/881 before the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur. The State Commission, vide its order dated 07.03.2019 quashed the impugned order dated 25.08.2018 passed by the District Forum in CC/17/899. No order as to the cost of the appeal was passed.

6.       The Complainant/Petitioner filed the Revision Petition mainly on the following grounds: 

i) Because the Respondents cannot be allowed to take a defense under Section 100 of the Railways Act, 1989 since the conduct of Train Ticket Examiner and GRP Staff was grossly negligent in allowing unauthorized persons inside the coach.

ii) Because the Hon’ble National Consumer Disputes Redressal Commission has held in various cases that entry of unauthorized persons in the coach amounts to deficiency in service on the part of the Railway.

iii) Because the Railway Claims Tribunal does not have the jurisdiction to grant compensation to the passenger who has lost his luggage on account of negligence of a railway employee.

iv) Because the Complainant had taken due care and precaution to safeguard the luggage.

7.       The learned Counsel for the Petitioner/Complainant argued/submitted that the stolen bag was duly chained and that he had also submitted receipts of ornaments that were present in the bag. It was submitted that the defense of Section 100 of the Railways Act states that the benefits of the section cannot be extended in cases of negligence and misconduct. The Petitioner submitted that in the case of “Northern Railway vs. Neetu Gupta & Anr. 2018 SCC OnLine NCDRC 114” it was held that in case of misconduct or negligence on the part of Railways, the Indian Railways are responsible for the loss of luggage carried by passengers with them. The Petitioner further submitted that in “General Manager, South Central Railway & Ors. vs. Jagannath Mohan Shinde 2012 SCC OnLine NCDRC 183” the NCDRC held that entry of unauthorized persons in the coach amounts to deficiency of service on the part of Railway. The Petitioner further submitted that in the Supreme Court verdict in “General Manager Northern Railways & Anr. vs. Radha Ramnathan [SLP (C) Diary No. 1498/2021]”  it was held that the Railways can be held liable for the stolen items under the Consumer Protection Act.

8.       In the evidence affidavit submitted by the Petitioner Mr. Dilip Kumar Chaturvedi before the District Forum, Durg, Chhattisgarh, he has stated that “the Ticket Checker allowed unauthorized persons to sit in the reserved coach without any reservation.” The Petitioner stated that this is a deficiency in service on the part of the Respondent.

9.       The Learned Counsel for the Respondent argued/submitted that there was no deficiency in service as the T.T.E. while discharging his duties had checked the entire coach and did not find any unauthorized person in the coach and the Petitioner had admitted that there was patrolling by GRP Staff. It was submitted that the provision of Section 100 of the Railways Act, 1989 provides that “the Railway administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless a Railway servant has booked the luggage and given a receipt there for.” It was further submitted that the Petitioner had not booked any goods prior to boarding the train. It was further submitted that the bag was stolen from the custody of the Petitioner’s wife, who was seated in a different coach and his wife has not deposed about the alleged theft. It was further submitted that the Petitioner has not proved any negligence or professional misconduct on the part of the Railway officials.

10.     The issue for consideration is whether the theft of the Petitioner’s bag containing cash and ornaments amounts to deficiency in service on the part of the Railways. We have examined the pleadings and associated documents placed on record, including the reasoned orders of the District Forum and the State Commission and rendered thoughtful consideration to the arguments advanced by the learned Counsels for the Parties.

11.     It is evident that the Petitioner had taken reasonable precautions to safeguard his luggage as the same was chained and locked. In the case of “G.M. South Central Railway vs. R.V. Kumar and Anr. 2005, SCC Online NCDRC 222” the duties of the T.T.E. attached to the second class sleeper coach were reiterated. This includes ensuring 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, ensuring that the end doors of vestibuled trains are kept locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach, remaining vigilant particularly during night time and to ensure that intruders, beggars, hawkers and unauthorized persons do not enter the coach. It was further held in this case that:

“A passenger traveling by a train is entitled to carry certain baggage or luggage within permissible limits of weight, free of cost. There is no question of entrusting such baggage/luggage to the Railways and getting a receipt thereof. If a loss takes place of such a luggage, Railways can be held responsible provided that there is negligence on the part of Railways or any of its servants, provided, of course, that the passenger himself has taken reasonable care of his personal baggage as expected of a prudent person.”

12.     As per Section 100 of the Railways Act, 1989, “a railway administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless a railway servant has booked the luggage and given a receipt therefor and in the case of luggage which is carried by the passenger in his charge, unless it is also proved that the loss, destruction, damage or deterioration was due to the negligence or misconduct on its part or on the part of any of its servants.” In the instant case, had the T.T.E. been vigilant and performing his duties, the theft of the said bag could have been avoided. The theft occurred after 2:30 A.M. at night. The end doors of vestibuled trains should have been locked between 22.00 and 6.00 hrs. to prevent outsiders entering the coach, remaining vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorized persons do not enter the coach. The patrolling by the GRP staff was carried on only once on the night of the incident. In the case of “Union of India v. Udho Ram and Sons” 1963 AIR 422”, it was held that “It may be true that any precautions taken may not always be successful against the loss in transit on account of theft, but even so evidence should be offered with respect to the extent of the precautions taken and with respect to what the Railway Protection Police itself did at the place, where the train had to stop. It must be taken to be the duty of the Railway Protection Police to get out of the Guard's van whenever the train stops, be it at the railway platform or at any other place. In fact, the necessity to get down and watch the train when it stops at a place other than a station is greater when the train stops at a station, where at least on the station side there would be some persons in whose presence the miscreants would not dare to tamper with any wagon and any tampering to be done at a station is likely to be on the offside.” 

13.     A perusal of Section 13 of the Railway Claims Tribunal Act, 1987 shows that the said Tribunal does not have jurisdiction to grant compensation to a passenger who has lost the luggage being carried by him with him on account of the negligence of a railway employee. In the case of “Northern Railway vs. Neetu Gupta & Anr. 2018 SCC OnLine NCDRC 114” it was held that if the complainants are travelling in a reserved compartment, it is the duty of the railway officials to ensure that no unauthorized person enters the said compartment.  In the case of “Union of India v. Ajay Kumar Agarwalla and Anr. 2015 SCC OnLine NCDRC 2956” it was held that “though it cannot be said with certainty that had the TTE discharged the duties assigned to him under the Circular dated 11.9.1998, the suitcases of the complainants could not have been stolen, there is a reasonable possibility of the theft having become possible on account of the main entrance doors of the coach having not been latched when the train was on the move and the vestibule doors having not been locked from 10 P.M. to 6 A.M.”

14.     In view of the above discussion, it is concluded that the Railways are liable for the theft and there was deficiency in service provided to the Petitioner, owing to the negligence of the concerned Railway officials. The Railways owed a duty of care towards the passengers traveling in a reserved coach with their personal belongings and luggage. In the interest of justice, the order of the Ld. District Forum is modified with the following directions:

The Respondents are jointly and severally liable to partly compensate the Petitioner by paying 50% of the amount awarded by the District Forum i.e. Rs.4,67,650/- towards compensation for the loss of his personal belongings within one month failing which interest @ 9% p.a. will be payable from the date of expiry of one month till the date of realization. The Respondents are further jointly and severally liable to pay Rs.20,000/- towards mental agony to the Petitioner within one month from the date of this order. There shall be no order as to costs.

15.     With the above order, the instant Revision Petition No.1104 of 2019 stands disposed of accordingly.

16.     All pending Applications, if any, stand disposed of accordingly.