Subhashchandra Naphade, complainant (here-in-after referred to as ' complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Union of India and others (here-in-after referred to as 'opposite parties).
Briefly stated, the case of the complainant is that the marriage of his daughter was fixed for 20-01-2014 in Hotel Palmsprings, Bharat Nagar, Bibiwala Road, Bathinda. In order to solemnize marriage, complainant got booked five seats of his family including himself, Jyoti Patil, Deepti Gajare and Puja Patil for coming from Mumbai Central to Bathinda with Central Railways, Pune (Maharasthra) through Train Janta Express No. 19023/FZR, Bombay to Ferozepur. The complainant got booked seats No. 34 to 38 in S8 on 30-12-2013. They were scheduled to board the train on 17-1-2014 from Mumbai Central at 7.25 A.M. and were scheduled to arrive at Bathinda on 18-1-2014. They paid Rs. 2596.24 to opposite party No. 2. Later on one seat of Deepti Gajare was got cancelled.
It is pleaded that as per schedule, the complainant alongwith his family members boarded the said train on 17-1-2014 with their luggage in the reserved coach S8 for coming to Bathinda. On 18-1-2014 at about 8.00 P.M. when train reached Maur Mandi, District Bathinda, 7/8 young boys having aged from 20 to 30 years, boarded in reserved coach. T.T. failed to restrain the said persons from boarding the reserved coach. The complainant alongwith other persons requested the young boys that it is reserved coach. They cannot enter the same and should have boarded un-reserved coach, but they did not pay any heed to their request and started proclaiming that Bathinda Platform is hardly at a distance of 10/15 Kms. They will not cause any type of inconvenience to the passengers and will cover the distance by standing in a corner of coach. They also requested that they will help complainant and other passengers in taking out their luggage from train at Bathinda Platform. At about 8.30 P.M when the train reached Bathinda Railway Platform, the said persons, against the wishes and consent of complainant and his family members started enacting a drama of helping them in taking out their luggage from the train on the pretext that the train is going to depart within few minutes. During the process, the said persons, taking undue benefit of heavy rush, near the window of train, made cut in the suitcase of complainant and taken out gold ornaments weighing about 210/220 gms and Rs. 70,000/- in cash and hurriedly eloped from the railway platform. The complainant came to know about theft only after reaching hotel when they unpacked their suitcases and found the gold ornaments and cash missing from the suitcase. They also noted a cut in the suit case of complainant. The complainant reported the matter to police of P.S. G.R.P. Bathinda and got registered FIR No. 10 dated 1-2-2014 u/s 379 IPC against unknown persons.
It is further pleaded that police of PS GRP, Bathinda failed to arrest the accused persons and recover the stolen articles despite repeated requests of the complainant. The complainant suffered loss of Rs. 8,00,000/- on account of theft of gold ornaments and cash of Rs. 70,000/-.
It is further pleaded that TT of the coach allowed unauthorizedly entering the persons in reserved coach and he failed to discharge his official duty. He was not even present in the coach which facilitated unauthorized entry into the coach by aforesaid unknown young persons and theft of article of complainant.
It is also alleged that opposite parties jointly and severally are responsible for this loss and are liable to pay compensation.
On this backdrop of facts, the complainant has claimed total compensation amounting to Rs. 9,50,000/- including compensation for loss and mental tension etc., in addition to Rs. 22,000/- as litigation expenses. Hence, this complaint.
In view of statement of learned counsel for the complainant, name of opposite parties No. 2 & 3 were deleted. Notice to opposite parties No. 1 & 4 were issued.
Upon notice, opposite parties No. 1 & 4 put an appearance through counsel and contested the complaint by filing written reply. In their joint written reply, the opposite parties raised legal objections that this Forum has no jurisdiction to try and decide the complaint. Only Railway Claims Tribunal has exclusive jurisdiction to try and decide the complaint under Section 13 and 15 of Railway Claims Tribunal Act and the complaint is liable to dismissed. That Railway Administration is not liable for any loss of luggage which has not been booked or where the loss has occurred without any negligence or misconduct on the part of Railway Administration or any of its servants. That complaint has not been filed through competent and authorized person. That complainant has concealed material facts from this Forum. The complainant has failed to prove alleged loss. He has concocted a false story to get undue benefit and gains from the opposite parties. Had there been any loss in train, he would have lodged immediate complaint in train itself or at Railway Station, Bathinda. If this Forum comes to the conclusion that any loss has taken place, only in that case it is stated that complainant is himself negligent. He relied upon unknown persons/passengers and handed over his luggage to them for his own convenience, without knowing their names. That complainant is not consumer. He has no locus standi or cause of action to file the complaint and the complaint is not maintainable.
On merits, reservation of tickets and boarding of train is not categorically denied but it is mentioned as a matter of record. All other averments of the complainant are denied. It is denied that 7-8 young boys of age 20 to 30 years boarded the reserved coach. It is mentioned that complainant or any other person did not report any such matter to the TTE at all. All other averments of the complainant are denied. The opposite parties have also reiterated their stand as taken in legal objections and detailed above. In the end, the opposite parties prayed for dismissal of complaint.
Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence two affidavit 26-8-2015 & 17-11-2015 of Surinder Kumar Singla (Ex. C-1 & Ex. C-12), photographs (Ex. C-2 to Ex. C-4), photocopy of reservation slip (Ex. C-5), photocopy of FIR (Ex. C-6), photocopy of bills (Ex. C-6 to Ex. C-10), photocopy of special power of attorney (Ex. C-11) and photocopy of bill (Ex. C-13).
In order to rebut this evidence, opposite parties has tendered into evidence affidavit dated 13-4-2016 of Parveen Gaur Dwivedi (Ex. OP-1/1), affidavit dated 26-4-2016 of Hem Raj (Ex. OP-1/2) and photocopy of first class duty card pass (Ex. OP-1/3).
The learned counsel for the opposite parties has also submitted written arguments.
We have heard learned counsel for the parties, gone through the record and written arguments of the opposite parties.
Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that although the opposite parties have not categorically denied that complainant and his family travelled in the train but complainant has also placed on record copy of reservation slip (Ex. C-5) to prove their travelling. The complainant has also alleged that theft took place. FIR (Ex. C-6) corroborate this fact. The complainant has also pleaded that theft was committed after making cut in the brief case. The photographs Ex. C-2 to Ex. C-4 also corroborate the averments of the complainant. Regarding loss, the complainant has brought on record receipt( Ex. C-13) which proves that complainant purchased jewellery from different jewellers and the purpose of purchase was marriage of his daughter. The complainant was travelling in reserved coach. Un-authorized persons are not allowed in reserved coaches. Therefore, TTE was negligent by not checking the un-authorized entry. The opposite parties are liable to compensate the complainant.
In support of his submissions, learned counsel for the complainant has cited :-
(i) 2012 (2) CPJ 640 case titled South Central Railway and Ors. Vs. Jaganath Mohan Shinde
(ii) 2010 (1) CPJ 90 case titled Union of India and Ors. Vs. J S Kunwar
(iii) 2003(2) CPJ 55 case titled General Manager, Southern Railway Vs. A Shameem
(iv) 2013 (2) CLT 585 case titled General Manager, South East Central Railway Zone Vs. Rakesh Kumar Goutam
(v) 2012 (3) CPJ 27 case titled South Central Railway Vs. Suchi Singh & Ors.
(vi) 2005 (IV) CPJ 79 (NC) case titled Divisional Railway Manager and another Vs. Abhishankar Adhikari
(vii) 2013(III) CPJ 469 case titled Union of India Vs. Dr. Shobha Aggarwal
On the other hand, learned counsel for the opposite parties has submitted that this Forum has no jurisdiction to entertain and decide the matter involved in this case. The appropriate Forum to decide the matter is only Railway Claims Tribunal. Jurisdiction of any other court/Fora is barred.
To support this submission, learned counsel for the opposite parties relied upon :-
(i) 2008 (2) CLT 93 (N.C.) Jatinder Chand Juneja Vs. Union of India
(ii) 2012(2) CLT 365 Narender Kumar Vs. Stationer Superintendent, Railway Station, Sonepat & Ors.
(iii) 2013(1) CLT 296 Southern Railway Vs. Stalin Herald
(iv) 2000(1) CLT 33 Ravneet Singh Bagga Vs. M/s. K L M Goyal Dutch Airlines and another
It is further submitted by learned counsel for the opposite parties that there is inordinate delay in reporting the matter to the police. The alleged theft took place in the evening of 18-01-2014 but the complainant has not lodged any compliant with TTE of Train or with the police of Railway Station, Bathinda. The complainant has not lodged any report upto 01-02-2014. This fact itself makes the claim of the complainant doubtful. In case any theft was reported to the police immediately, the culprit may have been arrested and stolen articles may have been recovered.
It is further submitted by learned counsel for the opposite parties that the case law relied upon by the complainant are not applicable to the facts of the case. The facts of the cited cases are all together different from the facts of this case.
It is further submitted by learned counsel for the opposite parties that if this Forum comes to the conclusion that this Forum has jurisdiction, even then, the case of the complainant is not proved. The complainant has named the persons who were travelling with him. The complainant has not appeared in witness box. No affidavit of complainant has been brought on record. Only affidavit of Surinder Kumar Singla was brought on record. He was not himself travelling with the complainant. He was not having knowledge of any facts. The affidavit of Surinder Kumar Singla will not prove the case of complainant. The complainant has failed to prove his case for want of evidence also.
The complainant has alleged theft of articles from the brief case but he has pleaded that this fact was noticed after reaching their hotel. There is no evidence that theft took place at Bathinda. Therefore, the complaint is liable to be dismissed.
We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.
Since the opposite parties have raised first objection regarding jurisdiction of this Forum to entertain and decide the complaint. Therefore, before recording any finding on the main controversy, it is to be seen whether this Forum has jurisdiction to entertain and decide the complainant or not.
In the case of Divisional Railway Manager & Anr. Vs. Abhishankar Adhikari (Supra), the complainant-respondent was traveling by Delhi-Kalka Mail AC-3 tier Coach. At about 5.45 a.m. he was the only passenger in his coupe and when he came back to his birth after brushing his teeth and washing his mouth, he found his VIP Trolley suitcase containing one camera, one cell phone, Rs. 5500/- in cash and some other belongings missing. The point of jurisdiction of the Forum was also examined in this case. It was categorically observed that every railway passenger is a consumer in terms of Section 3 of the 'Act'. The jurisdiction of the Consumer Fora is not ousted in such matters as the loss of luggage is not covered by Section 13 of the Railway Claims Tribunal Act, 1987. Regarding Section 15 of Railway Claims Tribunal Act, it was observed that section 15 does not cover the matter in question.
In case of of Union of India Vs. Dr. Shobha Agarwal (supra), the complainant was traveling in AC second class sleeper with reserved berths and the suit case was found missing. After discussing the provisions of Section 13 of the Railway Claims Tribunal Act, 1987, it was concluded that jurisdiction of the Consumer Fora cannot be barred by virtue of provisions of Section 15.
The opposite parties have mainly relied upon cases of Jatinder Chand Juneja Vs. Union of India and Ors. (supra) and Narender Kumar Vs. Station Superintendent, Railway Station (supra). In the case of Jatinder Chand Juneja (supra), the complainant suffered injuries. Therefore, this case is quite distinguishable.
Of course in the case of Narender Kumar (supra), the case of the complainant was that he boarded the train No. 4518 Unchahar Express for Allahabad and on the next morning he found his bag missing. Hon'ble State Commission concluded that complaint is not legally maintainable in view of the bar of jurisdiction created by Section 15 but the cases referred in this judgement were covered under Section 124A and 123 of the Railway Claims Tribunal Act, 1989. Section 123 and 124A of the Railway Act relate to matter involving untoward incident and untoward incident is also defined under Section 123 of the Railways Act. Section 124-A which reads as under :-
“124-A Compensation on account of untoward incident -When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident :
Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -
(a) suicide or attempted suicide by him;
(b) self-inflicted injury
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident
Explanation – For the purposes of this section 'passenger' includes -
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.”
Therefore, as per Section 124A of the Railways Act, 1989 also, the bar is only regarding untoward incidents which are certainly different from the incident of theft etc., Thus, keeping in view the aforesaid legal proposition, we have come to the conclusion that jurisdiction of this Forum is not barred in the case of theft.
Now coming to merit. It is well settled that complainant has to prove his case by affirmative evidence. In this case, Subhashchandra Naphade is complainant. The complaint has been filed through special power of attorney Surinder Kumar Singla. The complainant has detailed the persons travelling with him. Surinder Kumar Singla was not travelling with the complainant. Therefore, he was not having personal knowledge regarding facts of the case. He was also not witness. It is well settled that statement of power of attorney cannot be treated as statement of complainant and can be treated as statement as of witness only. There is no evidence from the complainant himself to prove that any occurrence took place as alleged by the complainant. The documents brought on record by the complainant in evidence will not prove his material allegations.
The complainant has simply pleaded that 7/8 unknown persons entered in the reserved coach but he has further stated that theft was noticed after reaching hotel room. It is not the case of the complainant that they have noticed the persons committing theft in the area of Bathinda. Therefore, the conclusion is that complainant has also failed to prove any theft, as alleged, in Bathinda.
Resultantly, this complaint fails and is hereby dismissed with no order as to costs.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
22-05-2017
(M.P.Singh Pahwa )
President
(Jarnail Singh )
Member
