State Consumer Disputes Redressal Commission
Union Of India vs Smt Mira Chakraborty on 25 March, 2014
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET, KOLKATA-700 087. S.C. CASE NO- FA/893/12 (Arisen out of Order Dt. 30/08/12 in Case No.CC/73/2011 of District Consumer Disputes Redressal Forum, Jalpaiguri ) DATE OF FILING: 22.11.12 DATE OF FINAL ORDER: 25.03.14 APPELLANTS: 1. Union of India General Manager, Northeast Frontier Railway Maligaon, Guwahati, Assam 2. Divisional Railway Manager, N.F. Railway , Alipurduar Jn. Post & P.S. Alipurduar Dist- Jalpaiguri. RESPONDENT : Smt. Mira Chakraborty, W/O Sri Sukumar Chakraborty, Golbagan near Patakura Club Post- Coochbehar, P.S. Kotwali, District- Coochbehar. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : Mr. Saptarshi Roy, Ld. Advocate. FOR THE RESPONDENT: Mr. Tapas Chakraborty, Ld. Advocate. _____________________________________________________________________________ : O R D E R :
MR. J.BAG, LD. MEMBER The present appeal is directed against the Order dated 30.08.12 in C.C.No.73/2011 passed by the Ld. District Consumer Disputes Rederssal Forum , Jalpaiguri, allowing the complaint in part against the OPs with cost.
The complaint case, in brief, was as follows:
The Complainant , Smt. Mira Chakrobarty, purchased one reservation-cum-journey ticket for her journey by Uttar Banga Express, Train No. 3148, Sleeper Class in Coach SE/1, Berth No. 23 on
02.09.2008 . The petitioner boarded the train with her bag and baggage from New Cooch Behar Station .Her ticket was checked at NJP Station by a TTE. No police was posted in the coach which allegedly remained unsafe and unprotected till the train reached Sealdah. Before going to sleep, she checked her luggage and put her ladies bag below her head . The lights were put off. Several unauthorized persons having no reservation were seen to have entered into the compartment in the absence of any TTE or security person. At about 12.30 a.m , the Complainant suddenly woke up with the feel that her ladies bag /purse containing gold and silver ornaments, money, ATM card , prescriptions, medicines etc was missing. She started shouting with the apprehension that her bag had been stolen. When she rushed for seeking help of Railway Guard / Police or TTE for booking her compliant, she found none of them. The petitioner realized that to lodge a complaint with the Maldah Town Station, she would have to leave the train which she did not venture. Finally, she was able to write a complaint and lodge it before the Malda GRP. In the morning the Complainant having reached Sealdah Station went to Sealdah GRP for further persuasion. She was informed later that on the basis of her information, a GRPS Case bearing No. 24/8 was started on 03.09.2008 and accordingly, a GR Case was started bearing No. 1977/08 before the Chief Judicial Magistrate , Malda , but nothing has been recovered .The incident of theft was allegedly due to the deficiency and negligence in service of the TTE or Railway Guard/ Railway personnel with whom the safety and security of the passengers was entrusted. The loss suffered by the Complainant having been caused by the deficiency in service on the part of the OPs , the Complainant filed a petition of complaint before the Ld. DCDRF , Jalpaiguri , with a prayer for passing orders to pay a compensation of Rs.1,54,900/- being the amount equivalent to the loss sustained by the Complainant, an award of Rs.1,00,000/- payable by the OP on the ground of their negligence and deficiency in service, apart from payment of compensation of Rs. 50,000/- for mental pain , agony and trauma suffered by the Complainant and Rs.10,000/- as litigation cost.
The complaint was contested by filing of written version by the OP Nos.1 and 2 who denied all material allegations , contending, inter alia, that the Malda GRPS Case No. 24/2008 dated 03.09.2008, under Section 379 IPC was started and I.O having submitted his final report on 27.04.2009, the Complainant has not raised any objection to the said Final Report and as such in the absence of any evidence in support of her complaint , the same did not stand.
Ld. Forum below, however, observed that the contents of the complaint as well as the evidence adduced were not countered. An order allowing a compensation of Rs.1,47,000/- in favour of the Complainant as valuation of the stolen property , apart from Rs.30,000/- as compensation for mental pain , agony, and trauma with interest @ 10% was passed .
The Appellants have come up before this Commission with a Memo. of appeal with certain grounds and also with the prayer for setting aside the impugned order.
We have gone through the Memo. of appeal together with the impugned judgment, complaint and written version filed by the Ld. Forum below among other documents.
Ld. Advocates appearing for the Appellant and the Respondent have been heard.
It appears form the record that the Ld. Advocates for both the Appellant and the Respondent were heard on 12.09.13 and after having received the LCR , the extended date of hearing was 4th March ,2014.
Ld. Advocate appearing for the Appellant submitted that the petition of complaint is not maintainable in so far as Section 100 of the Railways Act, 1989 is concerned. It stipulates that the Appellants are not responsible for the loss /destruction /damage/deterioration and non-delivery of any luggage which is not booked by the Appellants and for which a receipt was not issued. Ld. Forum below failed to consider that the Complainant did not produce any evidence, oral or documentary in support of her averments. There was a TTE on duty who admittedly checked the ticket of the Complainant at the material time. Hence, it is not a fact that there was no TTE on the train as alleged by the Complainant. Further , there was no document in support of the fact that the Complainant was carrying the articles said to have been kept in her bag. The impugned order has no judicious consideration and is liable to be set aside.
Ld. Advocate appearing for the Respondent submitted that the Appellants were mainly responsible for their neglectful acts by not providing sufficient security to the traveling passengers. Moreover, the Complainant did not get cooperation from the OPs representative on duty. The Ld. Forum below has rightly adjudicated the matter and there is no question of setting aside the order.
Decision with Reasons Ld. Forum below appears to have relied upon the decision of the Honble National Consumer Disputes Redressal Commission as reported in 2010 CTJ 275 (CP) NCDRC holding in respect of the case in question that there was a clear deficiency of service on the part of the Petitioners, i.e., Union of India , Ministry of Railways and Ors. in allowing the unauthorized persons to enter the reserved compartment and stealing the attachee of the Respondent, namely, J. S. Kunwar . Ld. Forum below observed that as the reserved coach did not have proper attendant , the Railway authorities will be liable to pay the claimed amount as sought for. It was also observed by the Ld. Forum below that they got materials to opine that according to the statement about the loss of the articles as mentioned in GRPS Case No. 24/2008 dated 03.09.2008 u/S 379, the Complainant is not entitled to get the award on silver item /ornaments of Rs.3,000 /- and cash of Rs.4,200/- . Accordingly, Ld. Forum below directed the OPs to pay the sum of Rs.1,47,000/- in favour of the Complainant for valuation of the stolen property as mentioned in serial Nos.1 to 6 of the schedule to the complaint.
From the perusal of the original complaint as maintained in the LCR, it appears that there was description of the articles stolen in the train with serial Nos. from 1 to 11 under the schedule recorded with the complaint . It is important to note that a set of eight cash receipts dated 09.01.2008 / 05.02.2008 / 19.02.2008 / 07.04.2008/ 22.05.2008/ 16.08.2008 and 28.08.2008 were submitted by the Ld .Advocate appearing for the Respondent during hearing by this Commission. Why such documents were not produced before the Ld. Forum below goes unexplained .Grant of award by the Ld. Forum below for a total sum of Rs.1,47,000/- in favour of the Complainant for valuation of the stolen property not being supported with any evidence, there is a gross material irregularity in the impugned order.
The Complainant /Respondent declared that her ornaments kept in a bag was placed under her head, while she was sleeping. If that is the case and if the articles are presumed to have been stolen while she was sleeping, it would be not prudent to hold that she witnessed unauthorized travelers entering into her compartment. She is not sure as to whether any insider or outsider (entering into the compartment unauthorizedly) took away her valuables from under her head while she was sleeping . The case as relied upon and referred to in the Union of India Ministry of Railways and Ors vs- J.S. Kunwar is quite different. In that case at the time of running of the train unauthorized persons entered the coach and stole the attachee . The information was immediately given to the Train Escort but he denied to register FIR on the date of travel. On that point Honble Commission viewed that there was deficiency on the part of the Railway authorities. In the present case, such things did not happen. The Complainant /Respondent can not say for sure that her valuables were stolen by some unauthorized traveler in the absence of TTE or police in the compartment. Moreover, the G.D. entry was recorded by the G.R.P. Malda Station and FIR was also recorded. Deficiency in service on the part of the Appellants does not stand substantiated with cogent evidence.
Ld. Forums order suffers from material irregularity as pointed out above. In the result, the appeal succeeds.
Hence, Ordered that the appeal be and the same is allowed on contest . The impugned order is set aside. The complaint stands dismissed. There shall be no order as to costs.
Sri Jagannath Bag Sri Debasis Bhattacharya (Member) (Member)