State Consumer Disputes Redressal Commission
South East Central Railway vs Arvind Kumar Singh on 15 September, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2016/239
Instituted on : 10.06.2016
Arvind Kumar Singh Aged 58 years,
S/o Shri Krishna Narayan Singh,
R/o : C/o : Siddharth Geo Consultants,
House No.631/3, Ramkund, Samta Colony,
Behind Lifeworth Hospital, Raipur,
Tehsil and District Raipur (C.G.) Pin 492001 ... Appellant
Vs.
The Divisional Rail Manager,
South East Central Railway, Khamtarai Road,
Near Badi Railway Crossing, Raipur,
Tehsil and District Raipur (C.G.). Pin 492008
(Part of Indian Railways/Department/Office) .... Respondent
Appeal No.FA/2016/371
Instituted on : 12.07.2016
South East Central Railway,
Senior Divisional Manager (Commercial),
Khamtarai Road, Raipur, District Raipur (C.G.) ... Appellant
Vs.
Arvind Kumar Singh, Aged 56 years,
S/o Shri Krishna Narayan singh,
R/o : C/o : Siddharth Geo Consultants,
House No.631/3, Ramkund, Samta Colony,
Behind Lifeworth Hospital,
Raipur, District Raipur (C.G.). .... Respondent
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER HON'BLE SHRI NARENDRA GUPTA, MEMBER // 2 // COUNSEL FOR THE PARTIES IN BOTH THE APPEALS:-
Shri Prakash Jeet Jha, for the complainant - Arvind Kumar Singh. Shri R.K. Shukla, for the opposite party - Divisional Rail Manager, South East Central Railway, Raipur (C.G.).
O RDER Dated : 15/09/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2016/239 and Appeal No.FA/2016/371, which have been preferred respectively by the complainant Arvind Kumar Singh and O.P. Divisional Railway Manager, South East Central Railway, Raipur (C.G.) of Complaint Case No.104/2015 against the order dated 10.05.2016, passed by District Consumer Disputes Redressal Forum, Raipur C.G.) (henceforth "District Forum"). By the impugned order, the learned District Forum, has partly allowed the complaint of the complainant and directed as under :-
(a) The O.P. will pay a sum of Rs.47,751/- (Rupees Forty Seven Thousand Seven Hundred and Fifty One), which is 50% of actual cost of the stolen camera, handicam camera and GPS Garmin to the complainant along with interest @ 9% p.a. from the date of theft i.e. 11.10.2014 till payment.
(b) The O.P. will pay a sum of Rs.2,000/- (Rupees Two Thousand) to the complainant towards cost of litigation.
// 3 //
2. The complainant has filed appeal No.FA/2016/239 for enhancement of the awarded amount whereas the (O.P.) has filed appeal No.FA/2016/371 for setting aside the impugned order of the District Forum. The original of this order be retained in the file of Appeal No.FA/2016/239 and it's copy be placed in the file of Appeal No.FA/2016/371.
3. Briefly stated the facts of the complaint of the complainant are that the complainant was required to go to Bhusawal from Raipur for some urgent personal work and he had to come to Raipur back from Bhusawal after completing the work. For performing journey from Raipur to Bhusawal through train the complainant made booking / reservation from office of the O.P. in Coach No.AC Coach A/1 Second AC (2A) Berth No.25 for train No.12812, Up Hatiya L.P. Express (Super Fast) Cost for 09.10.2014 and paid a sum of Rs.1,902.47 towards fare. The P.N.R. No. of the above ticket is 6434411823 and made booking/reservation in train No.22845/Pune Hatiya Superfast for 11.10.2014 for performing journey from Bhusawal to Raipur in second A/C. and paid fare of Rs.2,137.47. The PNR No. of the above ticket is 8228784428. Thus the complainant paid total amount of Rs.4,039.94 in the office of the O.P. for performing the above journey. On 10.10.2014 the complainant started his journey from Raipur to Bhusawal at that time he was having a suitcase and the cost of the suitcase was // 4 // Rs.2,700/-. The complainant kept a Canon camera valuing Rs.31,500/-, a Sony Handicam Camera valuing Rs.29,500/- and a G.P.S. Garmin valuing Rs.42,500/- in the suitcase. Thus the value of the above articles was Rs.1,06,200/-. The suitcase was duly locked properly with the help of chain. After locking the suitcase the complainant slept because he was tired. On 11.10.2014 when the complainant awaken at about 5.00 A.M. then he found that his suitcase was missing and the chain from which he tied the suitcase and locked the same was cut. The complainant tried to search the suitcase and articles kept therein but he could not succeed to search the suitcase and also did not obtain any articles kept in the suitcase. The complainant came to know that his suitcase along with articles were stolen by some unknown miscreants. The complainant made complaint of the incident on 11.10.2014 before Railway Police Station, Bhusawal and lodged First Information Report against the unknown miscreants, but till date the complainant has not received the suitcase and the articles kept therein. It is the responsibility of the officers/employees who are working with the O.P. not to allow the unknown and unauthorised person in the reserved bogie / coach of the train and to secure the life and property of the passengers, but the O.P. did not succeed in performing its duty / responsibility. The above act of the O.P. comes in the category of deficiency in service and unfair trade practice. The complainant sent legal notice to the O.P. on 27.01.2015. Inspite of lapse of period of 15 // 5 // days from giving legal notice on 27.01.2015 to the O.P., the O.P. did no pay any compensation to the complainant and also did not give reply to the legal notice sent to the O.P. by the complainant. Hence the complainant filed consumer complaint before the District Form and prayed for granting reliefs as mentioned in the relief clause of the complaint.
4. The O.P. filed its written statement and averred that the complainant did not make booking/reservation for journey to be performed on 10.10.2014 from Raipur to Bhusawal in train No.12812 A.C-2 and also did not make booking/reservation for the journey to be performed on 11.10.2014 from Bhusawal to Raipur from Train No.22845. The complainant did not start his journey from Raipur to Bhusawal on 10.10.2014 and he did not hold a suitcase and articles, as mentioned in the complaint. The complainant did not keep the suitcase properly and did not tie the same with the berth seat through a iron chain and did not lock it. During journey, the complainant himself was negligent to look after his luggage. The complainant lodged report in respect of the incident before Railway Police Station, Bhusawal on 11.10.2014 against unknown person and in this regard Police made investigation but the O.P. is not aware regarding the stage of the investigation. The complainant did not make Railway Police Station, Bhusawal as party in the complaint, who can place the actual position // 6 // of the investigation before the District Forum. On the date of incident, in the reservation bogie of the train C.T.I. was on regular duty and the C.T.I. has regularly checked the tickets of the passengers in the reserved bogie and he did not find any unuthorised person who was travelling in the train. Besides it in the A.C. bogie the A.C. attendant are also present and they are continuously looking that any unauthorsed person cannot enter in the reserved coach. The O.P. did not receive the legal notice dated 27.01.2015 sent by the complainant. From the perusal of the complaint of the complainant it is clear that the incident was occurred with him near Bhusawal, therefore, the District Forum, Bhusawal has jurisdiction to take cognizance in the matter. The District Forum, Raipur has no jurisdiction to take cognizance in the matter, therefore, the complaint is liable to be dismissed. The incident occurred because during journey the complainant was negligent and was performing the journey irresponsibly. The complainant did not book the articles at the time of journey and also did not give any declaration at the time of reservation/booking. As per rule of the Railway, if any passenger is travelling in the train with any valuable article then it is necessary for him to declare it otherwise as per Section 103(2) of the Railways Act and Section 100 of the Railways Act, 1989 the rail administration is liable for the loss or damage to the article when the employee of the Railway booked the article and provide receipt for the same to the passenger and prove that the article was damaged or // 7 // lost due to negligence of the employee of the Railway, but in the instant case the complainant did not book his articles and there is no fact that the employees of the Railway committed negligence due to which the articles of the complainant was stolen. The District Forum, Raipur has no jurisdiction to take cognizance in the matter as per Section 13 & 15 of Railway Claims Tribunal Act, 1987. The complainant did not inform the employee of the O.P. that during the journey he is carrying what articles and in these circumstances the complainant himself is responsible. From the perusal of the complainant it is clear that averment made by the complainant in respect of incident of theft related to Mudwara Station, which comes under Police Station Sagar G.R.P. The complainant also lodged report regarding the incident therefore in these circumstances the District Forum, Sagar (M.P.) has jurisdiction to take cognizance in the matter. The complaint of the complainant is outside the jurisdiction of the District Forum, Raipur, therefore, the same is liable to be dismissed. The complainant was required to take care of his articles and was required to duly locked the same, but the complainant did not plead regarding locking of the articles. The complainant himself was negligent during journey. The complainant did not immediately informed the C.T.I. regarding the incident. The complaint is liable to be dismissed.
// 8 //
5. The complainant filed documents. A-1 is Electronic Reservation Slip (Personal User), A-2 is Electronic Reservation Slip (Personal User), A-3 is First Information Report, A-4 is Form 1-B, A-5 is Retail Invoice of Manish Electronics, Raipur, A-6 is Tax Invoice issued by Aditi Infotech, A-7 is registered notice dated 27.01.2015 sent by Shri Prakash Jeet Jha, Advocate to the O.P. The complainant has also filed Hindi Anuvad Praman Patra and Anuvadit Type Copy of Fariyad.
6. Learned District Forum, after having considered the material paced before it by the complainant has partly allowed the complaint and directed the O.P. to pay the amount to the complainant as mentioned in para 1 of this order.
7. Shri R.K. Shukla, learned counsel appearing for the O.P. (Appellant of Appeal No.FA/16/371) has argued that the impugned order passed by the District Forum is contrary to law. The District Forum did not properly consider the provisions of Section 100 & 103 of the Railways Act, 1989 as well as provisions of Indian Railway Commercial Manual, Chapter XI relating to Booking of certain valuable articles as mentioned in para 1 of Schedule II of the Railway (Extent of Monetary Liability and Presumption of Percentage Charge) Rule 1101 of Rules 1990, therefore, the impugned order passed by the District Forum, is without jurisdiction. The District Forum, Raipur has no jurisdiction to take cognizance into the matter. The cause of action // 9 // had arisen within GRP Bhusawal, therefore, only District Forum, Bhusawal has jurisdiction to decide the matter. The Railway administration is not responsible for compensating the complainant. It is the duty of the complainant to book the luggage with railway authority, but the complainant did not book the luggage with the railway authority, therefore, the complainant is not entitled to get any compensation from the O.P. The impugned order passed by the District Forum suffers from irregularity and illegality and is liable to be set aside. He placed reliance on General Manager, Central Railway Vs. J.P. Singh 2010 (1) C.G.L.J. 35 (CCC); Revision Petition No.2025 of 2009 General Manager, East Central Railway, Hajipur Zone, (Vaishali) and others Vs. Manoranjan Kumar Order dated 25.11.2009 of Hon'ble National Commission; Appeal No.FA/15/400 South East Central Railway, Bilasur Through General Manager, S.E.C.R. Bilaspur Vs. Vivek Chhibba order dated 12.04.2016 of this Commission and Appeal No.FA/15/596 - South East Central Railway Through Senior Divisional Commercial Manager and others Vs. Nisha Jaiswal order dated 13.07.2016 of this Commission.
8. Shri Prakash Jeet Jha, learned counsel appearing for the complainant (Appellant of Appeal No.FA/16/239) has argued that the District Forum, Raipur has jurisdiction to try the case. The complainant boarded in train No.12812 Up Hatia L.P. Express (Superfast) from Raipur to Bhusawal, therefore, District Forum, Raipur // 10 // has jurisdiction to decide the case. He further argued that the complainant was carrying luggage with him and luggage was properly locked with the help of chain and proper precautions were taken by the complainant to secure the luggage. After cutting the chain, the suitcase of the complainant was stolen by some unknown miscreants. The price of the suitcase is Rs.2,700/- and articles valuing Rs.1,06,200/- were kept in the suitcase, which were stolen. It is duty caste upon the Railway authority to provide proper security and due to negligence and not providing proper security by the O.P., the incident took place. The District Forum has not awarded compensation as sought by the complainant in the complaint. The complainant has been able to prove that the value of the articles kept in the suitcase is Rs.1,06,200/- and the same has been proved by the complainant by adducing documents, but learned District Forum, has erroneously disallowed it and only awarded 50% of the total value of the articles, which is erroneous and is required to be modified. The appeal filed by the complainant be allowed and compensation as sought in the complaint be awarded in his favour.
9. We have heard learned counsel for both the parties and have also perused the record of the District Forum as well as impugned order.
10. So far as jurisdiction of District Forum, Raipur (C.G.) is concerned, the complainant pleaded that he was required to go to // 11 // Bhusal from Raipur and the journey was performed by him through train No.12812. The complainant purchased ticket at Raipur in Coach No.AC Coach A/1 Second AC (2A) & Berth No.25 for Train No.12812 Up Hatiya L.P. Express (Superfast) was allotted to the complainant. The P.N.R. No. of the above ticket is 6434411823. The complainant started journey from Raipur. On 11.10.2014 when he awaken at about 5.00 A.M. then he found that his suitcase was missing. It appears that the complainant was travelling in the train No.12812 Up Hatiya L.P. Express (Superfast) from Raipur to Bhusawal and the incident took place between Raipur to Bhuswal, therefore, the District Forum, Raipur has jurisdiction to decide the case.
11. In Appeal No.FA/14/252 - South East Central Railway Through The Senior Divisional Commercial Manager Vs. Ashwani Ritwal, this Commission vide order dated 11.03.2015 has observed thus :-
"17. On the basis of above cited judgements, it is established that respondent (complainant) was carrying articles with him during the journey in train and he obtained reserved ticket in Coach No.S-5 of Chhattisgarh Sampark Kranity Express Train No.12823, therefore, it is the responsibility of the railway administration to provide proper security to the passengers, who are travelling in the reserved compartment of the train and to prevent the unauthorised persons to enter in the reserved compartment."
// 12 // [See also South Eastern Central Railway, Through Senior Divisional Commercial Manager, decided by this Commission vide order dated 18.08.2015]
12. In Appeal No.159/2010 - General Manager, South Eastern Central Railway, Bilaspur (C.G.) vs. Smt. Pratima Tripathi, this Commission vide order dated 30.10.2010 has observed thus :-
"8. Counsel for the appellant has also drawn our attention towards the provisions of Section 100 of the Railways Act, 1989 as well as Rule 506.2 of India Railway Conference Association (IRCA) Tariff No.26 part II. We have gone through both these provisions and found that none of these provisions has any relation with any reserved compartment. It is true that normally passengers are expected to take care of their personal luggage, but when one travels in a reserved compartment, then naturally a duty is imposed upon servants of the Railway to take care of such passengers and their personal luggage, because unauthorized entry in such reserved compartments are restricted and no-one can enter in such reserved compartment, unless permitted by TTE or conductor in-charge of that compartment, therefore the appellant cannot get any benefit of Section 100 of the Railways Act, 1989 and rule 506.2 of India Railway Conference Association (IRCA) Tariff No.26 part II.
9. Considering the report of Divisional Security Commissioner and reply of TTE, submitted to his Authorities, we are convinced that an unauthorized person was allowed by the TTE to travel in reserved compartment and therefore the incident of theft has happened.
10. In these circumstances, the District Forum has not committed any mistake in awarding compensation against the appellant, equivalent to the value of articles kept in the purse and such value was // 13 // reported immediately after the incident by lodging report with the GRP. The appeal has got no force and is dismissed. No order as to cost".
13. In Revision Petition No.3574 of 2007, General Manager, South Central Railway & Ors. Vs. Jagannath Mohan Shinde decided on 11.04.2012, Hon'ble National Commission has observed thus :-
"............The plea of the Petitioner that since the Respondent had not booked the luggage against a receipt from the Petitioner / Authority as per Section 100 of the Indian Railways Act, Petitioner cannot be held responsible as a carrier of luggage if it is proved that the loss was due to the negligence or misconduct on the part of the any of its servants.
In the instant case, the TTE failed to perform his duties which clearly amounts to both negligence under Section 100 of the Indian Railways Act and deficiency in service as per the codified duties of TTE".
14. In Appeal No.690/2009 Abdul Momin Khan Vs. Indian Railway and others, decided by this Commission on 24.09.2010, it has been observed thus :-
"9. Counsel for the appellant has drawn our attention towards pronouncement of Hon'ble National Commission in the case of Union of India Vs. Sanjiv Dilsukhrai Dave, I (2003) CPJ 196 (NC), wherein taking note of rule 506.2 of Indian Railway Conference Association (IRCA) it has been observed that "Rule 506.2 of IRCA is also of no avail to the petitioner Railway. During journey one cannot be expected to take measures against intruders getting easily into reserved // 14 // compartments and running away with goods, when the Railway Administration is charged with the responsibility to prevent such unauthorized entry.
10. In view of the aforesaid, we find that deficiency in service against the respondent is established.
11. Now the question is remains to be decided is proper amount of compensation, to be awarded. In the FIR the appellant herself has declared Rs.12,000/- as the value of the articles which were stolen. Later on the figure was exaggerated, at the time of filing complaint before the District Forum and some bills have been obtained from here and there. We find that the earliest version of the complainant by way of first information should be believed. Therefore, the value of the stolen articles is presumed as Rs.12,000/- and this is the amount which can be awarded against the respondent on account of deficiency in service committed by it, in not protecting properly the body and luggage of the passengers during journey in reserved compartment".
15. In Union of India & Ors. Vs. Ranjan Kumar, III (2016) CPJ 264 (NC), Hon'ble National Commission has observed that "It is rule that employee though guilty of no fault himself is liable for damage done by fault or negligence of his servant acting in course of his employment. Same view equally applied when complainant suffers on account of misconduct such as theft or misappropriation. Petitioner is liable to reimburse complainant for loss suffered by him on account of theft committed by railway employee."
// 15 //
16. Section 100 of The Railways Act, 1989 reads thus :-
"100. Responsibility as carriers 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 therefor and in the case of luggage which is carried by the passenger in his charge, unless it is also proved 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. Section 103 of the Railways Act, 1989 reads thus :-
"103. Extent of monetary liability in respect of any consignment:- (1) Where any consignment is entrusted to a railway administration for carriage by railway and the value of such consignment has not been declared as required under sub section (2) by the consignor, the amount of liability of the railway administration for the loss, destruction, damage, deterioration or non-delivery of the consignment shall in no case exceed such amount calculated with reference to the weight of the consignment as may be prescribed, and where such consignment consists of an animal, the liability shall not exceed such amount as may be prescribed.
(2) Notwithstanding anything contained in sub-section (1), where the consignor declares the value of any consignment at the time of its entrustment to a railway administration for carriage by railway, and // 16 // pays such percentage charge as may be prescribed on so much of the value of such consignment as is in excess of the liability of the railway administration as calculated or specified, as the case may be, under sub-
section (1), the liability of the railway administration for the loss, destruction, damage, deterioration or non-delivery of such consignment shall not exceed the value so declared. (3) The Central Government may, from time to time, by notification, direct that such goods as may be specified in the notification shall not be accepted for carriage by railway unless the value of such goods is declared and percentage charge is paid as required under sub-section (2)".
18. On the basis of above cited judgments, it is established that the complainant was carrying suitcase with him during the journey in the train and the suitcase was duly locked with the help of chain and some miscreants after cutting the chain stolen the suitcase. It is the responsibility of the railway administration to provide proper security to the passengers who are travelling in the reserved compartment and to prevent the unauthorised person to enter in the reserved compartment .
19. In the instant case the Railway department has utterly failed to prevent such unauthorized person to enter in the reserved // 17 // compartment. In view of aforesaid, we find that deficiency in service against the O.P. is established.
20. Now the question remains to be decided is proper amount of compensation to be awarded ?
21. The complainant pleaded that the price of the suitcase is Rs.2,700/- and a Canon Camera valuing Rs.31,500/-, Sony Handicam Camera valuing Rs.29,500/- and GPS Garmin valuing Rs.42,500/- wee kept in the suitcase. The total value of the articles is Rs.1,06,200/-. In the First Information Report (FIR) and the notice, the value of the articles is given. The complainant filed retail invoice No.M/13-14/653 dated 06.07.2013 issued by Manish Electronics, Raipur (C.G.) in respect of Canon EOS 600D (18-55mm II IS) 8076089332, bill No.617 dated 16.05.2012 issued by M.K. Electronics, Raipur (C.G.) in respect of Sony PJ 230 and Tax Invoice No.13/2008-09 dated 06.11.2008 in respect of GPS Garmin. It appears that the GPS Garmin was purchased by the complainant in the month of November, 2008 and the date of incident is 11.10.2014 i.e. after near about 5 years and 10 months, therefore, the value of the above article at the time of incident is definitely less than 50% of its original value. Similarly other two articles were also purchased by the complainant in the month of May, 2013 and July, 2013 respectively, therefore, their price have been reduced upto 50% at the time of incident. The learned District Forum, has awarded to the // 18 // complainant 50% of total price of the articles kept I the suitcase i.e. 47,751/-. The cost of the suit case has not been allowed because the complainant has not filed bill in respect of the suitcase. The learned District Forum has rightly disallowed the compensation regarding physical and mental agony. The District Forum has rightly awarded Rs.47,751/- towards cost of the stolen property to the complainant.
22. Looking to facts and circumstances of the case, the evaluation of the cost of the articles made by the District Forum to the tune of Rs.47,751/-, appears just, proper and reasonable.
23. In our view the finding recorded by the District Forum, is just and proper and impugned order does not suffer from any irregularity or illegality and does not call for any interference of this Commission.
24. Hence the appeal No.FA/2016/239 filed by the complainant and appeal No.FA/2016/371 filed by the O.P., being devoid of any merits, are liable to be and are hereby dismissed. No order as to the cost of both the appeals.
(Justice R.S.Sharma) (Ms. Heena Thakkar) (D.K.Poddar) (Narendra Gupta) President Member Member Member 15/09/2016 15 /09/2016 15/09/2016 15 /09/2016