State Consumer Disputes Redressal Commission
Shri. Suresh S/O. Anandraj Jain vs Union Of India, Through Principal ... on 27 April, 2012
1 F.A.No.: 1090-07
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing : 17.10.2007
Date of Order: 27.04.2012
FIRST APPEAL NO.: 1090 OF 2007
IN COMPLAINT CASE NO.: 474 OF 2005
DISTRICT CONSUMER FORUM: JALGAON.
Shri. Suresh S/o. Anandraj Jain
R/o. 94, Navipeth, Jalgaon,
Tq. & Dist. Jalgaon. ...Appellant
-Versus-
Union of India, through Principal Secretary,
Railway Ministry, central Railway, New Delhi ...Respondent
... Respondent
Coram : Mr. D. N. Admane, Hon'ble Presiding Judicial Member
Mr. K. B. Gawali, Hon'ble Member Present: Adv. Shri. Modi for appellant.
Adv. Manish Navandar for respondent.
- :: ORAL ORDER ::-
Per Mr. K. B. Gawali, Hon'ble Member
1. The appellant who is the org. complainant challenges the judgment and order dated 31.05.2007 passed by District Consumer Forum, Jalgaon in complaint case No. 474/2005. The respondent is the original opponent.
2. The brief facts about the present appeal are as under:
The appellant is the resident of Jalgaon and is a businessman. It is the case of the appellant that on 21.02.2005 he had been to Mumbai for his business meeting. On 22.02.2005 he was traveling back to Jalgaon by train No.1057 namely Dadar to Amrutsar express which departs Dadar by 23.45 2 F.A.No.: 1090-07 p.m, having his berth No. 1 in coach No.S-7 and his ticket PNR No.815/7618409. It was contended by the appellant that during his journey he was carrying luggage containing one bag of Ecolite Company with dark brown colour. That after he boarded the train and occupied the berth he got his bag locked with the chain beside his berth on the side of window. That just after 10 to 15 minutes of the departure from the dadar station he fall asleep. That when the train reached at Igatpuri station, he had seen his bag in its place and that on the opposite berth one person was sleeping. It was further contended that when the train reached Nashik road station at about 3.30 to 3.45 p.m. he awoke and found that his bag was stolen away as the same was not found at its place. It was also contended by him that in the said bag there was a cash of Rs.
20,000/-, one mobile of Nokia company having model No.2300 costing of Rs.7,000/-, one diamond ring of 10 gm gold costing of Rs. 15,000/- and other articles, total costing of Rs. 57,500/-. He further averred that his bag must have been stolen away either by the person who was sleeping next to his berth or by somebody else. Thereafter on 04.05.2005 he filed a compliant with the Assistant P.S.I. Railway Sub-Division, Devlali. Before that he had also filed a complaint with the Railway Security Inspector namely Shri. Ajay Sansare on 31.03.2005 at Jalgaon. It was alleged by him that police could not get his bag to him and therefore the railway police and railway administration are responsible for the said loss to him. He therefore filed a consumer complaint under reference before the District forum, Jalgaon seeking direction to the respondent to pay him Rs. 57,500/- towards the cost of his articles which were stolen along with his bag, and additional compensation of Rs.10,000/- i.e. total Rs.67,500/-.
3. It is observed from the judgment and order passed by the District Forum that the notice was served on the respondent, however none was present, hence complaint was proceeded exparte. Accordingly on going through the papers and after hearing the complainant the District Forum by 3 F.A.No.: 1090-07 way of its impugned judgment and order partly allowed the complaint and directed respondent to pay to the complainant i.e. present appellant a compensation of Rs.2000/- towards physical, mental and financial loss and further Rs.1000/- as cost of the complaint. Both these amounts were directed to be paid within a period of 30 days; else it will carry an interest at 6 % p.a. with entire amount till realization.
4. Aggrieved and dissatisfied with the said judgment and order passed by the District forum the present appeal is filed in this commission by org. complainant for enhancement of the compensation. Notice was served on the respondent. The appeal was fixed for final hearing on 12.04.2012. Adv. Shri. Modi appeared for the appellant, whereas Adv. Manish Navandar for the respondent. We heard both the counsels at length. Adv. Navandar submitted the extract of the relevant provisions of the Railway Tribunal Act and the Railways Act, 1989 along with a copy of the judgment passed by this Commission, vide order dated 30.04.2009 in F.A. 974/2004.
5. The learned counsel Shri. Modi for the appellant submitted that the respondent though served with the notice were not present before the Forum. It was contended that, the bag of the complainant containing the articles amounting to Rs.57,500/- was stolen during his journey by the said train in between Igatpuri to Nashik. The complainant had filed the written complaint at Nashik Road Police Station on 01.03.2005 and also on 05.05.2005. The learned counsel Modi contended that since the appellant i.e. org. complainant had taken proper care of his bag by locking the same, the railway police and administration was negligent due to which his bag was stolen away causing him financial loss. He therefore contended that the District Forum did not appreciate the evidence on record which had gone unchallenged as the respondent did not contest the complaint and wrongly passed the impugned judgment and order directing only Rs.3000/- for mental agony and the cost of 4 F.A.No.: 1090-07 the complaint. Therefore requested to allow the appeal and grant the compensation as prayed in the complaint.
6. On the other hand, the learned counsel Shri. Manish Navandar for the respondent submitted that as per sub-section 1 and 1 (a) of 13, Sec. 15 and Sec. 28 of the Railway Claims Tribunal Act, 1997, the Consumer Fora has no jurisdiction to entertain and decide the complaint under Consumer Protection Act. He further contended that as per Sec. 100 of Railway Act, 1989 a railway administration is not responsible for the lost of luggage. The extract of the said section is reproduced as under:
"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 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".
7. In support of above said contention he also relied on the judgment and order passed by this Commission in FA No. 974/2004 on 30.04.2009. On the basis of the above said provision and also the ratio given in the said judgment and order the present appeal does not survive and hence required to be dismissed.
8. We have carefully gone through the papers as well as the oral submissions as put forth by the learned counsels of both the parties. We find that there are two important issues for our consideration and decision. The first is whether, the Consumer Fora has jurisdiction to entertain and decide the present complaint, and second is, whether the respondent is liable for compensation as sought by the complainant/appellant. As regards the first 5 F.A.No.: 1090-07 point about jurisdiction, from the perusal of provision u/s. 13, 15, 28 of the Railway Tribunal Act, 1997 it reveals, the bar of jurisdiction to other courts/forums is given in respect of compensation of loss or non delivery of animals or goods entrusted to a railway administration for carriage, and also to the claims for refund of fairs and/ or freight paid in respect of animal or goods entrusted to railway administration. The present case however pertains to the luggage carried by the passengers in his change and hence we do not think that there is a bar of jurisdiction to entertain and decide the present complaint. The learned counsel for the respondent by relying on the provisions of Sec.100 of Railway Act, 1989 contended that the railway administration shall not be responsible for the loss of the luggage which is not booked with the railway servant. However the perusal of Sec. 100 reveals that the railway administration can be held responsible in case of luggage carried by the passenger in his charge and if it is proved that the loss or damage of the said luggage was due to the negligence or misconduct on the part of any of the railway servants. The question is therefore whether; the appellant has proved the negligence or misconduct on the part of railway servant.
9. Appellants contention as per the complaint is that he had locked his bag with the help of chain besides his berth and that after 10 to 15 minutes from the departure of the train he fell asleep. He has further contended that upto Igatpuri the bag was there but when he got up at Nashik Road at about 3.30 to 3.45 a.m. he found his bag was stolen away. Although he had contended that as a part of precaution he had locked his bag with the help of chain to his berth, but nowhere in the complaint he has made any pleadings that the bag was stolen by breaking the chain or lock. It is therefore doubtful whether the bag was locked with the chain or otherwise. It can therefore be said that appellant was not diligent in taking sufficient precaution to safeguard his bag.
6 F.A.No.: 1090-0710. We also find that the complaint has gone unchallenged before the Forum as the present respondent/complainant did not contest the complaint. Hence, in view of the above said facts and observations although the railway administration can not be held totally responsible for the loss of luggage of the appellant, it has not come on record that sufficient care and precautions were taken by the servant of the railway, restricting the entry of unauthorized person in the said coach. Therefore, we agree with the District Forum holding the respondent to have committed deficiency in service to that extent only and to the amount of compensation as awarded towards mental agony and cost of the complaint. We therefore find no merit in the appeal. Hence, the order.
-:: ORDER ::-
1. Appeal is dismissed.
2. No order as to cost.
(K. B. Gawali) (D. N. Admane)
Member Presiding Judicial Member
Kalyankar