Per Mr B A Shaikh, Hon’ble Presiding Member

1.      This appeal is filed by the original complainant; feeling aggrieved by order dtd.02.01.2010, passed by District Consumer Forum, Nagpur in consumer complaint No.558/2009, by which the complaint is dismissed.

2.      Facts in brief giving rise to the present appeal are as under.

a.      The original complainant / appellant herein is the wife of Sanjay Niranje. Sanjay Niranje was serving in Railway department.  The Railway department issued a free pass to Sanjay Niranje alongwith railway ticket for undertaking journey by him and his wife from CST, Mumbai to Nagpur on 23.12.2008 under reserve coach of train namely Vidarbha Express. Therefore, the complainant and her husband alongwith their minor son, who was about three years, boarded said train at Mumbai. The said train departed on 23.12.2008 at 7.45 p.m. at CST. The complainant occupied berth No.29 as per reservation ticket.  However, she subsequently exchanged the said berth with berth No.43 of the same coach.  She slept alongwith her minor son over the said berth. She had kept her ornaments of gold total worth Rs.2,32,000/- in one purse and she kept that purse below the pillow and she slept over that pillow during night time.  Her husband occupied berth in another coach of the said train as per railway ticket.  However, when the complainant woke up before five minutes of reaching that train to Wardha Railway Station. Her husband also came to her at that time.  It was found by them that all the ornaments, which were kept in the purse were stolen away by some unknown person. It is alleged by the complainant that when they made a complaint about the same to TTE – Mr Sunil Kumar Singh, who was on duty in that train. But by that time the train left the Wardha station and therefore, the said TTE asked her to lodge report at Railway Police at Nagpur Station. 

b.      The complainant then alighted from the said train at Nagpur Railway Station on 14.12.2008 and she lodged the report at the Railway Police Station at Nagpur about the theft of her aforesaid ornaments.  Police registered crime and thereafter recorded her statement on 25.12.2008 at Nagpur. Again on 21.03.2009 Police informed her by letter that still the thief is not detected and as soon as stolen ornaments are recovered, further information about the same will be given to her. Then on 17.05.2009 Police showed her some recovered property for identification, but the same was revealed not belonging to the complainant.

c.       It is alleged by the complainant that TTE, who was on duty at the relevant time did not take any care to se that some unknown passengers do not enter into reserved coach by which the complaint was traveling.  She also alleged that there was no Police guard in that coach and many passengers, who were not holding confirm tickets of reservation, were continuously moving in that coach and therefore, her ornaments have been stolen away by those persons. She, therefore, alleged deficiency in service on the part of opposite party Nos.1 & 2, who are authorities of Railway department and claimed from them compensation of Rs.2.32 Lacs towards the loss sustained by her due to theft of her ornaments and she further claimed compensation of Rs.50,000/- for physical & mental harassment and litigation cost of Rs.25,000/-.

3.      The original opposite parties / respondents herein appeared before the Forum below and filed their common reply.  They denied that allegations made in the complaint against them  and submitted that it was necessary for the complainant / appellant to record the entry of her ornaments of gold with the respondents and to obtain receipt of the same. But she did not do so.  Moreover, it was her own responsibility to take care of her ornaments, but she failed to do so.  Moreover, she did not bring to the notice of TTE, working in the coach as regards the unauthorised passengers entered into that coach / compartment.  It is specifically denied that the complainant had made complaint to TTE namely Mr Sunil Kumar Singh at Wardha Railway Station about commission of theft of her gold ornaments.  It is denied that the ornaments of the appellant are stolen away due to carelessness on the part of the respondents and that they rendered deficient service to the appellant.  Therefore, they requested that the complaint may be dismissed with cost. They also submitted that the complaint is not maintainable before the Forum as separate Tribunal is established for adjudication of such claims under a separate law.  Therefore, it was prayed by the respondents that the complaint may be dismissed.

4.      The Forum below after hearing both the parties and considering evidence brought on record dismissed the complaint holding that the as the railway pass was obtained without payment of any charges, the services of respondents was obtained free of cost and hence the complaint before the Forum below is not maintainable. The Forum below therefore dismissed the complaint by passing impugned order.

5.      This appeal is thus filed by the original complainant.  We have heard the learned advocate Mr S M Kasture appearing for the appellant and advocate Mr N Lambat appearing for the respondent.  We have also perused the entire record of the appeal.

6.      The learned advocate of the appellant mainly relied on the decisions in the following cases.

i.        Northern Railway Vs. Sachin Mittal, IV(2017) CPJ 439 (NC).

          In that case, the theft of suitcases took place when the said suitcases were being carried by the complainant in a train. It was found in that case that the some unauthorised persons in reserved coach were not asked by the TTE to deboard.  This amounts to act of negligence on the part of TTE a railway employee, which also constitutes deficiency in service on the part of Railways.  Therefore, it was directed that the Railway shall pay Rs.25,000/- to the complainant by way of compensation.

ii.       Laxman Tamappa Kotgiri Vs. G M., Central Railways and Ors., 2006 CTJ 1076 (Supreme Court).

          In that case, it is observed that the medical service is rendered at government hospital / health centre / dispensary as part of the conditions of service to the government employee and his family members, this would not amount to free service but it constitutes service for the purpose of the Consumer Protection Act, 1986.

Thus, according to the learned advocate of the appellant in the instant case also the husband of the complainant was serving in Railway and he got free pass for undertaking journey by railway. Thus, according him, the aforesaid decision of the Hon’ble Supreme Court is applicable to the present case.

7.      The learned advocate of the appellant he also submitted that the Forum below erred in dismissing the complaint on the ground that the services of railway were hired fee of cost.  Moreover on the merits of the case, he submitted that it was the sole responsibility of the respondent to take all care and precautions in the railway compartment so as to avoid the incident of theft and as the required care and precautions were not taken by the respondent, the ornaments of the appellants were stolen away.  Hence, he submitted that the compensation sought for in the complaint may be awarded.

8.      On the other hand, the learned advocate of the respondents submitted that it is not proved that there was any negligence or carelessness on the part of the respondent and hence the respondent cannot be held responsible for the commission of theft of ornaments of the appellant. He relied on the decisions in the following cases.

i.        Chief Station manager, South East Central Railway & 2 Ors. Vs. Mamta Agrawal, in RP No.590 of 2015, decided by the Hon’ble National Commission on 12.09.2017.

          In that case, the loss / damage was not caused due to negligence or misconduct on the part of servant of the Railway Administration.  Moreover, no booking was made with the railways as regards the stolen goods.  Hence, it is held that no deficiency in service on the part of Railway officials and hence the complaint was dismissed.

ii.       Vijay Kumar Jain Vs. Union of India & Anr., Petitions for Special Leave to Appeal (Civil) Nos.34738-34739 of 2012.

          In that case, the petitioner was allotted berth No.41 in Sleeper Coach but he had voluntarily placed attachi case on berth No.43.  Therefore, it was held that the railway cannot be held responsible for the alleged loss of attachi by way of theft or otherwise.

9.      The learned advocate of the respondent further submitted that appellant herself did not take proper care & precaution to prevent the theft of alleged ornaments and hence she herself is responsible for commission of theft of her ornaments and as the said ornaments were not booked with the respondents, no deficiency in service can be attributed to the respondents.  He, therefore, requested that the appeal may be dismissed.

10.    It is seen that though in the consumer complaint filed before the Forum below, it is alleged by the appellant that some unauthorised passengers were moving in the said compartment by which the she was traveling, but she did not say so in her report / FIR lodged with the police immediately after reaching at Nagpur Railway Station.  Moreover, she did not state about the  unauthorised persons had entered into her compartment, in her separate additional statement recorded by police on next day of the incident i.e. on 25.12.2008.  Thus, submission made by the appellant in the consumer complaint that some unauthorised persons were allowed to enter into that compartment, appears to be after thought and hence cannot be believed.

11.    As per the provisions of Section 100 of Railway Act, 1989, Railway Administration can be responsible for the loss of any luggage of the railway passengers only when the said luggage is booked by the railway servant and receipt of the same is issued or when the said loss of luggage has been caused due to negligence or misconduct of Railway Administration or on the part of any of its servant.

12.    In the instant case, admittedly, the ornaments in question were not booked by the appellant with the Railway Administration.  Moreover, it is not proved by the cogent evidence that the said ornaments were stolen away due to negligence or misconduct on the part of Railway Administration or on the part of its any servant.  Hence, we find that no deficiency in service can be attributed to the respondent for loss of ornaments belonging to the appellant as occurred during journey by railway.

13.    We find that the appellant / original complainant has not made it clear as to what were the terms & conditions of the service of her husband with the railway department / respondents, in pursuance of which the said free pass / free ticket was issued to her husband by the Railway Administration.  The appellant has not filed affidavit of her husband or any document of Railway Administration to prove that the said railway pass / ticket was issued by the Railway Administration as part of condition of service.  Thus, the aforesaid decision relied on by the learned advocate of the appellant are not applicable to the facts & circumstances of the present case.

14.    We also find that as deficiency in service on the part of respondent is not proved, the impugned order by which the complaint has been dismissed deserves to be confirmed in appeal.  Accordingly, we proceed to pass the order below.

ORDER

i.        The appeal is dismissed.

iv.      No order as to costs in this appeal.

v.       Copy of the order be furnished to both parties free of cost.