Chandigarh

DF-II

CC/266/2015

K.S.Bhatti - Complainant(s)

Versus

Union of india - Opp.Party(s)

Sh. Chetan Dayal Adv.

14 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

======

Consumer Complaint  No	:	266 of 2015
Date  of  Institution	:	26.5.2015
Date   of   Decision	:	14.07.2016

 

 

 

 

 

K.S. Bhatti S/o Bakshish Singh, Resident of 74, Sector 16-A, Chandigarh.

                …..Complainant

Versus

 

1]       Union of India through Ministry of Railways Room No.239, Rail Bhawan, Raison Road, Connaught place, New Delhi 110001.

2]       General Manager, Northern Railways, Baroda House K.G., Marg, Connaught place, New Delhi 110001.

3]       Station Superintendent Northern Railways, Chandigarh Railway Station, Chandigarh.

 

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         MRS.PRITI MALHOTRA             MEMBER

 

 

For complainant(s)      :     Ms. Madhu Dayal, Advocate  

 

For OPs                 :     Sh. Sunil K. Shore, Advocate

 

 

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          The Hon’ble State Consumer Disputes Redressal Commission, U.T.,    Chandigarh, while setting aside the exparte order dated 22.6.2015 passed by this Forum, vide its order dated 29.7.2015, remanded back the present case to this Forum, for deciding the same afresh, on merits, in accordance with the provisions of law.   

2]      As per the case, the complainant alongwith his wife booked two berths for, to and fro journey from Chandigarh to Allahabad and Allahabad to Chandigarh by train No.14217 i.e Unchahar Express AC 2 tier compartment/bogie. It is alleged that when the complainant and his wife  were returning from Allahabad to Chandigarh in the said train on 16.4.2013, due to negligence of the employees of the OPs, his suitcase containing cash, as also valuable items, was stolen from  the said train. FIR in this regard was lodged by the complainant at Railway Station Chandni Chowk Delhi. But the Railway police failed to locate the suitcase of the complainant till date. It is pleaded that the OPs were required to provide safety to the passengers, as also to their luggage, while they were  traveling in the train, but they failed to do so, as a result whereof, the theft, aforesaid took place. It is alleged that the theft took place because the officials of the railway who were on duty allowed unauthorized person to enter the reserved compartment of the train. Alleging the said act of OPs as deficiency in service, this compliant has been filed.

 

3]       Opposite Parties in their joint reply while admitting the factual matrix of the case stated that the alleged theft did not take place due to negligence of the Opposite Parties rather the incident of theft took place owing to carelessness and negligence of the complainant. It is asserted that the railway authorities always displays on the time table board, railway coaches, platforms, reservation centre that the passenger himself is responsible for his own luggage and the railway is responsible for booked luggage only. It is further asserted that the train was having adequate security/guard. The TT was duly available in coach.  But the complainant never brought to the notice of the TT the alleged theft nor did he lodge any complaint in the complaint book with the TT. It is further asserted that the complainant was carrying the suit cases, which were not booked by him nor paid anything for carrying with him the same while traveling, thus in this view of the matter he is not a consumer under Consumer Protection Act 1986. Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

4]       The Complainant also filed rejoinder thereby reiterating the averments as made in complaint and controverting that of the Opposite Parties made in the reply.

 

5]       Parties led evidence in support of their contentions.

 

6]      We have heard the ld. Counsel for the parties and have also perused the record as well as written arguments.

 

7]       The ld.Counsel for the complainant submitted that the complainant alongwith his wife booked two Berths in Train No.14217 - Unchahar Express AC 2 tier compartment for to & fro journey from Chandigarh to Allahabad and Allahabad to Chandigarh. She submitted further that the efforts of the complainant to lock their luggage with the chain was unfruitful, as there was no hook under their berth in the compartment.  Further claimed that an unknown person impersonating himself as Railway Employee entered the reserved compartment and took order for dinner by charging Rs.90/-, but after waiting long when the complainant did not get the food, he enquired from the Coach Attendant Mubarak Ali, who disclosed that no such authorised person of the Railway had come in the compartment and no order for food has been taken.  It is further submitted that the Coach Attendant Mubarak Ali after sometime brought some unauthorized person into their reserved compartment and let him sleep on Berth NO.14 without entries on the passenger list.  When, the complainant awoke at about 4.50 AM, it is realized that their suitcase with belongings i.e. purse of his wife carrying cash of Rs.35,000/-, purse of the complainant containing Rs.2100/-, 2 mobile phones, Voter IDS and other important documents, clothes, another suitcase of the complainant containing cheque book & passbook of his bank account, were missing.  It is also submitted that when the complainant tried to contact the Coach Attendant Mubarak Ali, he was not available on his seat and thus, the information of theft was given to the other Coach Attendant.  Further submitted that when train reached Chandni Chowk Delhi, the complainant along with his wife got down of the train and got the FIR dated 17.4.2013 registered at Railway Station Chandni Chowk Delhi.  Thereafter they boarded the taxi and travelled back to Chandigarh.  Narrating the above facts, it is argued by the counsel for the complainant that the OPs failed to provide proper services to the complainant as the staff of the Opposite Party was careless and negligent, who got unauthorized person entered into the reserved compartment and let him sleep in the compartment in violation of the rules & regulations of the Railways as only a person with reserved tickets can undertake the journey in reserved compartments. It is argued that the Opposite Parties failed to provide adequate security in order to ensure the security of the passengers and also claimed that due to non-provision of locking system under the berth in the compartment, the theft had taken place.  It is further claimed that the OPs did not adhere to the duties of the Coach Attendant as stated on the Steel Plate fixed on the entry door of the coach for the safety of passengers and their baggage, which reads as under:-

         No.1)    XXXXXXXXX

No.2)    to check tickets of passenger when they first enter the coach to occupy berth            if a TT/conductor is not there, attendant to exercise this check.

         No.3 & 4)    XXXXXXXX   

No.5)    to keep the compartments locked when the train is on the run and open them for occupation as and when required.

         No.6-8)  XXXXXXXXX

No.9)    To prevent the entry of beggars/hawkers and other unauthorized passengers inside the coach, especially in the corridor and to keep corridor and space near the bathroom free from obstructions.

No.10)   to keep vestibule doors locked between 2200/0600 hours to prevent miscreants entering the coach.

No.11)   to keep good lookout on corridor of the coach from attendant’s seat, particularly during the night and not to sleep when on duty.

 

8]       It is further claimed that due to the deficiency in service and non-compliance of due care, the complainant had suffered huge financial loss, apart from suffering mental agony and physical harassment and hence complainant has prayed to compensate him for the loss as well as for deficiency in service and litigation expenses.

 

9]       The ld.Counsel for the Opposite Parties primarily objected; qua the jurisdiction of this Forum to entertain the present complaint, according to him no cause of action in favour of the complainant arose at Chandigarh i.e. within the jurisdiction of this Forum and placed reliance on a judgment of Sonic Surgical Vs. National Insurance Co. Ltd.

 

10]      He further objected that there is non-joinder of necessary parties as the complainant had lodged FIR qua the said theft with the GRP (Government Railway Police) and they have not been impleaded as party before this Forum.  In order to shift their burden, the OPs claimed that the safety and security of lives & property of citizens is the responsibility of State Government and in Railways, the State Government is to ensure the security through the concerned Railway Police by providing adequate security and any criminal offence which took place in the train is investigated and dealt with by the Government Railway Police.   It is claimed that in the present case, the investigation of the theft was required to be done by GRP, Delhi and hence there is no deficiency in service, on the part of answering OPs.  It is also claimed that if the GRP had failed to take any action in the alleged complaint of the complainant then railways is not responsible for the same.

 

11]      Despite taking above objections, the counsel for the OPs claimed that as per Section 100 of the Railways Act, 1989, the Railway is not responsible for the loss, destruction, damage, deterioration or non delivery of unbooked luggage.  Claimed, that the theft of the luggage had occurred due to the negligence of the complainant as he failed to take care of his luggage & belongings.  It is further claimed that it is always displayed on the Time Table Board, Railway Coaches, Platforms, Reservation Centre that the passenger is himself responsible for his own luggage.  At the end, it is stated that the Railways is responsible for any loss only in case of loss of booked luggage and not otherwise. It is also claimed that the alleged theft was never brought to the notice of TT nor any complaint was lodged in the complaint book with the TT. 

 

12]      As regards the objection of jurisdiction of this Forum is concerned, the same is out rightly rejected for the simple reason that the complainant entered into contract of service with OPs i.e. booked his tickets in question at Chandigarh only i.e. within the jurisdiction of this Forum and for that contract of service entered into between the parties, this Forum has the jurisdiction to entertain & adjudicate the matter in question and also there is no objection from the OPs qua the booking of tickets at Chandigarh.

 

13]      The objection of the OPs that the present complaint is not fit for want of non-joinder of necessary party i.e. GRP with whom an FIR of the theft was registered.  This plea is also devoid of any merit as the GRP is an independent body and the present complaint is filed only for the deficiency in service provided by the OPs.

 

14]      Now in regards to the evidence available on record, it is to be decided whether the OPs provided due services to the complainant, as committed and also to see whether the complainant is entitled for the loss, if positive, then to what extent ?

 

 

15]      The OPs had not contradicted the allegations of the complainant that their employee i.e. Coach Attendant Mubarak Ali allowed an unauthorized person to enter into the reserved compartment and let him sleep without reflecting of his name in the passengers list.  Also there is no cogent evidence to show that the locking system under the Berth of the complainant to hide and lock the luggage was properly maintained.  The allegations of the complainant that the Coach Attendant Mubarak Ali could not be intimated about the theft due to his non-availability, goes rebutted. The OPs neither contradict the allegations of the complainant nor did they place on record the affidavit of their employee Mubarak Ali in order to contradict the allegations of the complainant, that he facilitated an unknown person to enter the reserved compartment and made him sleep on Berth No.14 as alleged by the complainant.  The lack of care and unethical act on the part of the employee of the OPs, who facilitated entrance of an intruder into the reserved compartment, lead to the commission of theft and loss to the complainant, amounts to gross deficiency in service and unfair trade practice.  It is observed that extra amount for reserved tickets are paid in order to get the safe and secure journey, but the OPs committed breach of their duty and failed to protect the passengers with their property in the reserved compartment. 

 

16]      The Section 100 of the Railways Act referred by the OPs claiming that the OPs are liable only in case the luggage is booked with them.  In our opinion, even the protection of Section 100 of the Railways Act is not available to the OPs and to clarify, the said section is reproduced below:-

       “100. Responsibility as Carrier of luggage

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 therefore and in the case of luggage which is carried by the passenger in his charge, unless it is also provided 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.”

 

17]      Going through the above provision, it is clear that no doubt the liability of the OPs is with regard to the loss of only the booked luggage, but an exception is provided whereby it is categorically stated that in case there is any negligence in providing due services on the part of the OPs, due to the negligence or misconduct on the part of the railway administration or on the part of any of its servant, then the liability on account of deficient services cannot be escaped. In our opinion, the case of the complainant is squarely covered under the exception of Section 100 of the Railways Act.

 

18]      From the above discussion, it is clear that only due to the negligence and careless attitude of the employee of the OPs i.e. Coach Attendant Mubarak Ali, who allowed an unauthorized person to enter into the reserved compartment of the complainant which made possible, the theft of luggage and other belongings of the complainant.  Thus, the deficiency in service on the part of the OPs is writ large.

   

19]      While arriving to the above conclusion, we put reliance on the judgment of Hon’ble National Commission, New Delhi – General Manager, North Central Railway Vs. Dhirendra Kumar Rai & Anr., decided on 5.6.2015 - 2015(3) CLT 82.  We also put reliance on another judgment of the Hon’ble National Commission, New Delhi – Union of India Vs. J.S.Kunwar, decided on 15.12.2009 - 2010(1) CPJ 90, wherein in Para No.3, it has been specifically held as under:-

3.   In the present case, admittedly the attache was lost in a reserved compartment. Complainant made enough effort with the Train Escort and the T.T. to register FIR and he was supposed to file it on 18.7.2002. He filed the same on 19.7.2002 after reaching Dehradun at P.S. G.R.P. Dehradun. Except mere averment and the vague allegations that the attache must have been stolen in middle of the night and the complainant is at fault by not putting his luggage under lock and key which has been provided with each seat. Petitioners are unable to substantiate their pleas against the complainant. We rely on the decision rendered by this Commission in Union of India & Ors. Vs. Sanjiv Dilsukhraj Dave and Anr., I (2003) CPJ 72(NC)=2003 CTJ 196 (CP) (NCDRC)-

“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.”

This view has been reaffirmed in the case of G.M. South Central Railway v. Dr. R.V. Kumar and  Anr.,IV(2005) CPJ 57(NC)= 2005 CTJ 862 (CP) (NCDRC).

 

            The above referred judgments squarely covers the case of the complainant. 

20]      In view of the above discussion, we are of the opinion that the complaint deserves to be allowed against the OPs for the deficient services rendered to the complainant. Accordingly, the complaint is allowed and the Opposite Parties are jointly & severally directed 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.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

14^th July, 2016     

                                                                             Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER