Chandigarh

StateCommission

A/274/2016

K S Bhatti - Complainant(s)

Versus

Union of India - Opp.Party(s)

Madhu Dayal, Adv.

16 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Appeal No.	:	274 of 2016
Date of Institution	:	27.09.2016
Date of Decision	:	16.01.2017

 

K.S. Bhatti son of Bakshish Singh, resident of 74, Sector 16-A, Chandigarh.

……Appellant/Complainant

V e r s u s

1. Union of India through Ministry of Railways, Room No.239, Rail Bhawan, Raisina Road, Connaught Place, New Delhi-110001.
2. General Manager, Northern Railways, Baroda House, K.G. Marg, Connaught Place, New Delhi-110001.
3. Station Superintendent, Norther Railways, Chandigarh Railway Station, Chandigarh.

…..Respondents/Opposite Parties

Argued by: Ms.Madhu Dayal, Advocate for the appellant.

                  Ms.Neha Gupta, Advocate proxy for Sh.Sunil K.Sahore, Advocate for the respondents.

===================================================

Appeal No.	:	281 of 2016
Date of Institution	:	06.10.2016
Date of Decision	:	16.01.2017

1. Union of India through Ministry of Railways, Room No.239, Rail Bhawan, Raisina Road, Connaught Place, New Delhi-110001.
2. General Manager, Northern Railway, Baroda House, K.G. Marg, Connaught Place, New Delhi-110001.
3. Station Superintendent, Norther Railways, Chandigarh Railway Station, Chandigarh.

……Appellants/Opposite Parties

V e r s u s

K.S. Bhatti son of Bakshish Singh, resident of H.No.74, Sector 16-A, Chandigarh.

         ....Respondent/Complainant

Argued by:Ms.Neha Gupta, Advocate proxy for Sh.Sunil K.Sahore, Advocate for the appellants.

                    Ms.Madhu Dayal, Advocate for the respondent.

 

Appeals under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we will dispose of the aforesaid two appeals, arising out of common order dated 14.07.2016, passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short the Forum), in consumer complaint bearing no.266 of 2015, vide which, it accepted a complaint, filed by the complainant (now appellant in FA No.274 of 2016 and respondent in FA No.281 of 2016) and directed the respondents/opposite parties, as under:-

“a]  To pay an amount of Rs.10,000/- as compensation for causing mental agony and physical harassment to the complainant due to their deficient services;

 b]  To pay Rs.5000/- towards litigation expenses.

 The above said order shall be complied with by the Opposite Parties within 45 days of its receipt, failing which they shall be liable to pay interest on the above awarded amount as at sub-para [a] above from the date of filing this complaint till it is paid, besides paying litigation expenses”.

2.         Arguments, in both the appeals were heard by this Commission on 13.01.2017. Since, the appeals have been filed against the common order dated 14.07.2016, as such, legal issues involved therein, are the same.  In view of above, Counsel for the parties, in both the appeals, during final arguments agreed that the appeals can be disposed of, by passing a consolidated judgment.
3.         Under above circumstances, to dictate order, facts are being taken from appeal bearing no.274 of 2016, titled as K.S. Bhatti Vs. Union of India and ors. The complainant and his wife are senior citizens and had filed a consumer complaint bearing no.266 of 2015, alleging deficiency in providing service, on the part of the opposite parties/respondents, which resulted into theft of their luggage, while travelling in a train from Allahabad to Chandigarh, causing financial loss to them. Admittedly, both of them had booked two berths, for ‘to and fro’ journey from Chandigarh to Allahabad and Back. For return journey they boarded the train namely Unchahar Express on 16.04.2013 from Allahabad to Chandigarh. They were put in AC 2 Tier Coach/Bogie (in short the coach). They were allotted berth nos.13 and 15. They wanted to secure their luggage with the chain, however, they failed to do so because the hook to lock the luggage, underneath the seat/berth, was not available. This was pointed out to the coach attendant namely Mubarak Ali. He told them ‘not to worry’, as the coach, in question, will remain closed during journey. During transit, one unknown person, impersonating himself as railway employee, booked order for one dinner, charging Rs.90/- from the complainant and his wife. When he failed to report, after waiting for a longtime, the matter was reported to the above-said coach attendant, who told the complainant that no such person of the opposite parties had enter in the coach and the opposite parties have not taken any booking for the dinner. Despite reporting entry of an unauthorized person in the coach, the said coach attendant failed to take proper care and rather in a very mischievous manner, allowed one unauthorized person to enter the coach and allowed him to sleep on berth no.14, which was not allotted to any passenger, as per list displayed at the entry of the coach. The complainant and his wife went to sleep. At about 4.50 a.m., when the train left Sahibabad Station, it was realized by them that their luggage was missing. Matter was reported to the coach attendant, however, he failed to take any action, rather, they were intimated that they should report the matter to the Police at the next Police Station. When the train reached Delhi on 17.04.2013, an FIR No.20130057 was got registered with the Police Station, Railway Station, Delhi, at 06.00 a.m., wherein it was mentioned that during journey their suitcase; purse of wife of the complainant with cash of Rs.35,000/-; purse of the complainant with cash of Rs.2100/-; two mobile phones, Voter ID cards and other important documents were stolen. One more suitcase, was reported missing containing cheque books, pass books etc. of the bank. It was specifically stated that theft has occurred because the said coach attendant failed to perform his duties and was deficient in providing service to the complainant and his wife during their journey from Allahabad to Chandigarh. The complainant and his wife reached Chandigarh by hiring a taxi. Complaint was also lodged against Mubarak Ali, the coach attendant, however, no action was taken against him. Faced with above said circumstances, a complaint was filed before the Forum.
4.         Upon notice, joint reply was filed by the opposite parties, stating that the theft had taken place on account of carelessness and negligence on the part of the complainant and his wife. They failed to take proper precaution to secure their luggage, despite warning given by the opposite parties at the railway coaches, platforms, reservation centres etc., that the passengers themselves will be responsible for security of their luggage and for loss, railways will not own any responsibility. It was further stated that the train was properly secured and a coach attendant was available in it. It was also stated that the matter of theft was not reported to the concerned coach attendant. No entry was made in the complaint book available with the said person. It was specifically stated that the lost luggage was not booked with the opposite parties. It was further stated that the complainant would not fall within the definition of a consumer and further, the Forum at Chandigarh, has no territorial jurisdiction to entertain and decide the instant complaint.
5.         The complainant filed rejoinder to the reply filed by the opposite parties, wherein it was pleaded that contract to provide service was entered into between the complainant and the opposite parties at Chandigarh, where the tickets in question were purchased, as such, the Forum had the territorial jurisdiction to entertain and decide the complaint. It was further stated that as per the Rules/Regulations of the Railways, it is open to a passenger, to carry luggage upto 50 kgs., alongwith him, in a coach, for which appropriate amount is charged alongwith ticket(s), for travelling. The luggage being carried by both the passengers at the relevant time, was within limitation. It was further stated that when theft was noticed, the complainant wanted to report it to the coach attendant but he was not available at the relevant time. He went to attendant of the adjoining coach, who advised him, to lodge a report with the Police, at the next Railway Station, which was reported within about one hour, from the time, when theft was noticed.
6.         The parties led evidence, in support of their case. Written arguments were also submitted by the parties.
7.         After hearing Counsel for the parties, and, on going through the evidence, and record of the case, the Forum, accepted the complaint, in the manner, stated above. 
8.         Feeling aggrieved, against the order impugned, appeal No.274 of 2016 has been filed by K.S. Bhatti/ complainant, with a prayer to enhance the compensation awarded by the Forum. Whereas, on the other hand, cross appeal bearing No.281 of 2016 has been filed by Union of India and ors./opposite parties, with a prayer to set aside the order impugned.
9.         We have heard Counsel for the parties, in both the appeals, and, have gone through the evidence and record of the cases, carefully, and are of the considered opinion, that the appeal bearing No.281 of 2016 filed by the opposite parties, deserves to be dismissed. It is specifically pleaded by the complainant that the coach attendant namely Mr.Mubarak Ali, was negligent in performing his duties. He allowed unauthorized person to enter the reserved coach, which resulted into loss of luggage/belongings of the complainant and his wife. The Forum has rightly stated that to the averments made to that extent, there was no rebuttal. Affidavit of Coach Attendant was not placed on record, to controvert the allegations leveled by the complainant, against him. Despite complaint having been made, no action was taken against the coach attendant. Under similar circumstances, the National Consumer Dispute Redressal Commission, New Delhi (National Commission), in a case titled as Union of India Vs. Dr.(Smt.) Shobha Agarwal, Revision Petition No.602 of 2013, decided on 22.07.2013, noting theft of luggage of a passenger due to negligence on the part of the coach attendant, observed as under:-

“……………..the two Fora below have returned their concurrent finding in respect of the allegation of negligence on the part of the petitioner based on the facts placed before them. The order of the State Commission is in line with the judgements of this Commission in similar cases including those of Union of India & Ors. Vs. J.S. Kunwar [1 2010 CPJ 90 (NC)] and Union of India & Ors. Vs. Sanjiv Dilsukhraj Dave & Anr. [2003 CTJ 196 (CP) (NCDRC) and Mrs. Kanthimathi & Anr. Vs. Govt. of India where the liability of the railways in such cases has already been examined established in such cases in the light of the provisions of sections 97 and 100 of the Railways Act. We do not wish to reiterate here the details of these cases except to refer to the observations of this Commission in the case of Sanjiv Dilsukhraj Dave & Anr. (supra) and the same are reproduced thus:-

“A major responsibility cast on the TTE in addition to examining the tickets is that of ensuring that no intruders enter the reserved compartments. This is certainly a gross dereliction of duty which resulted in deficiency in service to the Respondents. The price difference between the unreserved ticket and a reserved ticket is quite high and the traveling public who buy a reserved ticket would expect that they can enjoy the train journey with a certain minimum amount of security and safety. One has to presume that passenger would take reasonable care of his luggage. But, he cannot be expected to take measures against intruders getting easily into reserved compartments and running away with goods, when the railway administration is charged with the responsibility to prevent such unauthorized entry. We have entered the 21st century and we cannot carry on our daily life in the same age old fashion with bearing brunt of indifferent service provided by public authorities like Railways. People expect in the 21st century a modicum of efficient and reliable service, which provides at least safety of person and property while traveling in reserved compartments”

Undisputedly, the complainant and her daughter were travelling in a reserved coach and it was the duty of the TTE to ensure that no intruders entered the reserved compartment. Since apparently there was a failure on the part of the TTE to prevent entry of unauthorized person in the coach during the night, the Fora below were right in holding the petitioner liable for deficiency in service to the respondent in this regard……”

 

                Against above order passed, the opposite parties filed Special Leave Petition No.761 of 2014, which was dismissed by the Hon’ble Supreme Court of India, on 31.01.2014.

10.         Furthermore, as the tickets were purchased at Chandigarh, it was rightly held by the Forum that it had territorial jurisdiction to entertain and decide the complaint. The negligent attitude of the opposite parties is apparent, when we noticed argument of their Counsel that investigation is still going on, in the incident of theft reported by the complainant. Furthermore, there is nothing on record to show that any action was taken against the said coach attendant, despite specific complaint having been filed by the complainant against him.

                In view of above, appeal bearing No.281 of 2016, filed by the opposite parties/appellants, stands dismissed, with no order as to cost.

11.         Now we will have to see, whether the Forum, in allowing the complaint filed by the appellant/complainant, was justified in not granting relief qua loss of luggage/belongings, referred to above. It is apparent on record that immediately after theft was noticed by the complainant at 4.15 a.m. on 17.04.2013 during journey from Allahabad to Chandigarh, it was reported to the Police Station, Railway Station, Delhi, at  06.00 a.m. It is a specific stand of the complainant that the above-said coach attendant was not available at the place of his duty. In the FIR, it is specifically mentioned that on account of theft, the complainant suffered loss of two suitcases; two mobile phones; Rs.37,100/- in cash and one big purse of his wife. The Forum has given no finding, as to why the complainant/appellant is not entitled to get compensation, qua loss of luggage/belongings, referred to above. Once it is proved on record that theft has occurred on account of deficiency in providing service by an employee of the opposite parties, it was incumbent for the Forum to grant reasonable amount of compensation, qua the loss of luggage/belongings aforesaid. Similar finding was given by the National Commission, under similar circumstances, in a case titled as General Manager, South Central Railway and ors. Vs. Jagannath Mohan Shinde, Revision Petition No.3574 of 2007, decided on 11.04.2012.
12.         This Commission is aware that there is a tendency to exaggerate the quantum of loss caused, at the time of reporting thereof. Qua price of the loss of luggage/belongings aforesaid, receipts are not available on record. To settle equities, we are granting reasonable compensation to the appellant/ complainant, in appeal bearing No.274 of 2016, qua loss of luggage/belongings aforesaid, claimed by him. Under these circumstances, we grant an amount of Rs.20,000/- towards loss of cash; Rs.5,000/- towards loss of two suitcases; and Rs.14,000/- towards loss of two mobile phones i.e. totaling to Rs.39,000/-. Amount of compensation awarded by the District Forum is also enhanced from Rs.10,000/- to Rs.15,000/-.
13.         In view of above, appeal bearing No.274 of 2016,  filed by the appellant/complainant is partly accepted. The opposite parties/respondents (Union of India and Ors.) are jointly and severally directed as under:-
    1. To pay Rs.39,000/- referred to above, to the complainant, alongwith interest @8% p.a., from the date of theft i.e. 17.04.2013.
    2. To pay Rs.15,000/- as compensation, instead of Rs.10,000/-, for mental agony & physical harassment caused to the complainant and deficiency in providing service.
    3. To pay cost of litigation to the tune of Rs.5,000/-, as awarded by the Forum.
    4. The awarded amount shall be paid by the opposite parties/respondents, to the complainant/appellant, within a period of two months, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr. no.(i) shall carry penal interest @10% p.a. from 17.04.2013 instead of 8% p.a. and the amounts mentioned at sr. nos.(ii) and (iii) shall carry interest @10% p.a. from the date of filing the consumer complaint before the Forum, till realization.
14.         In view of the findings given by this Commission, no relief can be granted to the appellants/opposite parties in appeal bearing No.281 of 2016, and, as such, the said appeal is dismissed with no order as to costs.
15.         Certified copy of this order be also placed on the file of connected appeal, referred to above.
16.         Certified copies of this order, be sent to the parties, free of charge.
17.         The file be consigned to Record Room, after completion

Pronounced.

16.01.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Rg