DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/118/2017
No. DF/ Central/
Varun Bansal@ Varun Kumar,
S/o Sh. Suresh Chand Bansal, R/o DS-125, Ward No. 19,
Near to Jangeshwar Mandir, Shivpuri Mohalla, Palwal,
Haryana-121102
Also office at:
M/S. Vinayak Trading Company,
178, Secod Floor, Gali Kinari Wali, Naya Bans,
Khari Baoli, Delhi-110006 …..COMPLAINANT
VERSUS
Union of India,
Through its General Manager,
Northern Railway, Baroda House, New Delhi-110001
Delhi Police
Through Commissioner of Police,
Delhi Police Head Quarter, ITO, New Delhi-110002 …..OPPOSITE PARTY
Quorum : Ms. Rekha Rani, President
Mrs. Manju Bala Sharma, Member
Mr. R. S. Nagar, Member
ORDER
Rekha Rani, President
1. Instant complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended alleging therein that the complainant is a businessman. On 12.02.2016, the complainant boarded the train EMU Palwal towards Ghaziabad from Palwal Station to reach Sadar Bazar Station with his pithu bag in which there was a small handmade bag containing client receipt along with Rs. 3,00,000/- cash, lunch & water bottle and sample of dal & order/demand. On reaching the destination, Sadar Bazar Station, Delhi, when he de-boarded the train, his water bottle felt and he found that the bag containing cash was missing and there was a cut at the bottom of his pithu bag. He realized that the small bag was stolen. He again boarded the train and checked his seat and coach but did not find his bag. Then he went to the Police Official, Sadar Bazar to lodge the complaint but the official refused to register the same. He requested Police Official of Railway Police to take into custody his cut bag which may be needed for evidence but he did not do so. Police Station, Old Delhi registered DD Entry No. 013A and FIR No. 23/2016 dated 12.01.2016, 15:10 hrs. u/s. 379 IPC. On 15.05.2016, SHO P.S. Old Delhi Railway Station filed an untraced report which was accepted by the Hon’ble Court of Ms. Ruby Neeraj Kumar, Ld. MM, Central, Tis Hazari Court. Complainant has suffered a loss of Rs. 3,00,000/- due to deficiency in service on part of railways. Hence, the complainant seeks compensation of Rs. 3,00,000/- with interest @ 18.25% from the date of incident till its realization and direction to railways to upgrade their security. Complainant has arrayed Northern Railways as OP1 and Delhi Police as OP2.
2. Both contested the claim vide separate replies. Northern Railways, OP1, prayed in the reply that complainant has not filed any evidence to prove that he was carrying the claimed item and further it was neither booked with railways nor entrusted by the railways for its safe custody. It is further stated that in terms of Section 100 of the Indian Railways Act, Railways is not responsible for any un-booked item. It is further stated that untraced report was accepted by concerned MM with no objection of the complainant. Both sides placed evidence by way of affidavit. Learned counsel for Northern Railways, OP1, stated that Railway administration do not undertake responsibility for the personal belongings/items carried in the personal custody of the passenger. He also stated that Railways cannot be held liable for un-booked items carried by the passenger.
3. In a similar case titled Vijay Kumar Jain, Advocate V/s Union of India & Anr Revision Petition no. 18 of 2008 dated 17.05.2012, before National Consumer Disputes Redressal Commission the complainant was travelling in Udyan Abha Express for travelling from Delhi to Sri Ganganagar on 23.01.2004. He went off to sleep on his berth. He woke up in the night and found his suitcase missing which allegedly contained articles worth Rs. 15,800/-. He filed complaint before the District forum seeking direction to the railway to pay him a sum of Rs. 15,800/-. District forum dismissed the complaint by observing that the complainant had negligently placed his luggage on berth No. 43. The District Forum relied upon the provisions of the Railways Act, 1989 and held that the railways cannot be held responsible for the goods which are not booked. Further it was observed that petitioner was carrying his luggage at his own risk as neither he entrusted the goods to the conductor nor booked the same with railway authorities by paying the requisite fee. State Commission dismissed the appeal. Hence the revision petition before the National Commission which was also dismissed. Special Leave Appeal (Civil) No (s). 34738-34739/2012 was filed before the Supreme Court against judgment and order dated 17.05.2012 in RP No. 18/2008 of National Commission. The Supreme Court dismissed the same. The facts of the instant complaint are similar to the facts of the case in Vijay Kumar Jain (supra).
4. National Commission in another case titled Chief Station Manager & Ors V/s Mamta Aggarwal Revision Petition no. 590 of 2015 vide its order dated 12.09.2017 observed as under:-
“7. The main ground taken by the Railways is that under Section 100 of the Railway 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 gave the receipt and in that case also, it should be proved that such loss/damage, etc., was due to negligence or misconduct on the part of the servants of the Railway Administration. In the present case, no such booking was made with the Railways and hence, the provisions of Section 100 of the Railways Act, etc., are applicable in the matter. In this context, this Commission has expressed its view on the provision of Section 100 of Railway Act in Revision Petition No.4098 of 2014, Union of India & Ors. Vs. Rama Shanker Misra & Anr., decided on 07-08-2015. In Union of India Vs. Sanjiv Dilsukhrai Dave & Anr., I(2003) CPJ 72 (NC); Southern Eastern Railway Vs. Ku. Bharati Arora, I(2004) CPJ 114 (NC); Union of India & Anr. Vs. Anjana Singh Chauhan, IV (2014) CPJ 198 (NC). Therefore, in our view in the present case there was no negligence attributable to any specific employee.”
5. Learned counsel for complainant has cited that various judgments in his written arguments. We have perused the same. The said judgments do not help the complainant as he has not proved as to how the Railways was negligent. There is no evidence that he carried Rs. 3,00,000/- cash with him while travelling in the train. Criminal case bearing FIR No. 23/2016 dated 12.01.2016 was examined by the concerned Magistrate when untraced report was filed by the concerned Police Station. Order dated 09.11.2016 of Ms. Ruby Neeraj Kumar, Ld. MM, Central in FIR no. 23/2016 indicates that complainant prayed for adjournment saying that he needed some time to consult his advocate. On 17.12.2016, learned MM observed that complainant submitted that he was satisfied with the investigation done by the police and did not wish to file any protest petition. In view of the statement of the complainant, untraced report filed by the police was accepted.
Complainant had sought adjournment before the concerned magistrate to consult his lawyer before he made a statement before the magistrate that he was satisfied with the investigation whereas in Para 5 of his complaint filed before us, he has stated that he had requested an official of railway police to seize his bag as incriminating evidence of the incident but he refused. Complainant has not mentioned any name and designation of the said police official although the same is always evident from the uniform worn by the police official nor he brought these facts into the notice of the concerned magistrate when the issue of acceptance of the untraced report was being considered.
6. In view of judgment of Apex Court in Vijay Kumar Jain (Supra) the complaint is dismissed. Copy of this order be sent to the complainant as per rules. File be consigned to record room.
Announced on this _____ Day of _____ 2018.
