State Consumer Disputes Redressal Commission
Union Of India (Railway) & Ors. vs Krishna Kumar Rathore on 6 April, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
Appeal No.FA/2016/618
Instituted on : 24.11.2016
1. Union of India (Railway),
Through Senior Divisional Engineer,
South East Central Railway,
Bilaspur (C.G.)
2. Senior Divisional Commercial Manager,
South East Central Railway,
Bilaspur (C.G.)
3. Station Superintendent,
South East Central Railway,
Champa (C.G.) ..... Appellants/OPs
Vs.
Krishna Kumar Rathore, Aged 43 years,
S/o Shri Raghunath Prasad Rathore,
R/o : Saragaon, Police Station : Saragaon,
District - Janjgir Champa (C.G.) .... Respondent/Complainant
PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :-
Shri Rajesh Kumar Dubey, for the appellants.
Respondent, present in person.
ORDER
Dated : 06/04/2017 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This appeal is directed against the order dated 12.08.2016 passed by the District Consumer Disputes Redressal Forum, Janjgir - Champa (C.G). (henceforth "District Forum" for short), in Complaint Case // 2 // No.CC/28/2016. By the impugned order, learned District Forum, has allowed the complaint of the complainant and it has been directed that :-
(a) The OPs will pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand) towards compensation to the complainant within 30 days.
(b) The OPs will also pay a sum of Rs.2,000/- (Rupees Two Thousand) towards cost of litigation to the complainant within a month.
2. Briefly stated the facts of the complaint of the complainant are that the complainant along with family and family of his sister had gone to Puri for Mundan Ceremony ( shaving of head) on 30.03.2015 and the return journey was fixed on 01.04..2015. Accordingly, railway tickets were reserved from Champa Station. The ticket numbers are AA-56273748 and AA-56277350 and return ticket No. were AA-56273749 and AA-56273751. On the above date, all the passengers started their journey on the fixed time and the articles were kept below seat by taking precautions. After completing the work, the passengers started return journey on 01.04.2015 at about 9.00 P.M. The complainant and other co-passengers kept their articles below the seat and had locked with chain. At about 3.00 to 5.00 A.M., during intervening night of 01.04.2015 & 02.04.2015, the bag of the complainant was stolen before reaching to Tatanagar. When the trained reached to Tatanagar, the complainant had awaken and asked his wife regarding the articles, then the complainant came to know that in the // 3 // night, the staff of the train kept the door open, due to which articles were stolen. The complainant was searching the articles. The running staff of Police came from Tatanagar and the complainant gave information regarding theft of the articles. At that time at about 6.37 A.M. a message from State Bank of India, came in the mobile no.9098727317 of the complainant that a sum of Rs.5,000/- has been withdrawn from account of the complainant from A.T.M. Jamshedpur. The complainant gave information regarding the same to the staff, till then the train was again started and in the way at about 8.35 A.M., again the complainant received messages that the amount was withdrawn twice. The complainant along with co-passenger Sanjay Rathore come down from the train in Rourkela and by another train came to Tatanagar along with running staff of Police and lodged written report in Tatanagar Railway Station. During the journey, in the night, the staff of the railway kept open the door of the train, due to which the bag of the complainant was stolen, whereas the complainant had taken all precaution for security. The complainant did not get opportunity to direct the Bank to stop the transaction in his account as the ATM Card which was kept in the bag was stolen and prior to that a sum of Rs.30,000/- was withdrawn from various bank accounts of the complainant and his wife. If the running staff had taken immediate action, then the miscreant could have been arrested from the ATM, from where amounts were withdrawn on 2-3 occasions and the amount could have been recovered. The action could have been taken by obtaining footage // 4 // from the C.C.T.V. Camera, but the employees of the OPs had not taken immediate action and inspite of lodging report, no action was taken by the OPs. The complainant suffered total loss of Rs.78,500/- The complainant lodged written report in Police Station Tatanagar and he was taking information regarding the action taken by the OPs, but till date only assurance is being given and no action was taken. The complainant sent legal notice to the OPs on 29.02.2016 but the OPs did not settled his grievance. Hence, the complainant filed instant complaint and prayed for granting reliefs, as mentioned in the complaint.
3. The OPs have filed their written statement and averred that according to the averment of the complainant he got reservation on 01.04.2015 for the journey from Puri to Chama in Train No.18477 Kaling Utkal Express for his family. The complainant only got reservation for the journey. The complainant did not book the articles and luggage kept by him, as per Railway Manual and Rule. The complainant also did not book the suitcase and the socalled amount and valuable articles kept in the suitcase and also did not give any declaration at the time of reservation. As per Rule 1101 of Railway Rules, if any passenger is carrying valuable articles i.e. gold, silver etc. then he is required to made declaration in this regard. As per Section 103 (02) and Section100 of the Railway Act, 1989, if any passenger did not book the article with reservation ticket and such article is stolen or damaged at the time, then // 5 // the Railway cannot be held responsible. Beside this, the Railway alerts the passengers through advertisement to take care their articles and also advised them to take reasonable precautions during performing journey. Below every berth, there is a chain of iron and in the berth it is written that keep the article secured by tiding the same with the chain, but the complainant has not followed it, therefore, the complainant himself is negligent and the Railway is not responsible. It is not possible that if any passenger locked the suitcase with the help of chain, any thief will take the suitcase from the train by cutting the chain of the iron. The story of the complainant regarding theft of the articles from the train is concocted story. The complainant did not give information to the employees/officers of the Railways regarding the articles which were carrying by him, for which the complainant himself is responsible and the OPs are not responsible. In the railway campus and train, proper and sufficient arrangements are made for security of the passengers. Under the security, the main work of the Railway Administration is to stop the unauthorized persons to enter in railway campus and train. If any loss is caused to any passengers from the unauthorized person, then the Railway Administration can be held liable, but the burden lies on complainant to prove that during the journey in the station campus and train, unauthorized person entered. The complainant has not clearly mentioned regarding the place where incident was happened, therefore, there is no clear basis to submit claim under jurisdiction of Janjgir. The complainant // 6 // averred that during intervening night of 01.04.2015 & 02.04.2015, the bag of the complainant was stolen prior to Tatanagar. The journey from Puri to Chakradharpur via Puri, the staff of Khadagpur Division (South Eastern Railway) and Railway Police are engaged and in journey from Chakradharpur to Bilaspur via Champa, the staff of Chakradharpur Division (Couth East Railway) and Railway Police are working. It means that during journey from Puri to Champa, there is no role of the Bilaspur Division (South East Central Railway). The complainant lodged written report at Tatanagar Railway Station which comes within jurisdiction of South East Railways, therefore, District Forum, Janjgir - Champa (C.G.) has no jurisdiction to hear and decide the complaint and the complaint is liable to be dismissed. In the written report, the complainant has not mentioned that the articles were stolen because the door of the coach was kept opened. The complainant has not pleaded that the co-passengers also seen the incident and the complainant narrated them. The complainant has not followed the rules and regulations and also did not follow the provisions of Section 100 and 103 of Railways Act. So far as withdrawal of amount from the ATM of the complainant is concerned, due to negligent act of the complainant, the amount was withdrawn from ATM for which the OPs are not liable. Due to non-joinder of the party, the complaint is not maintainable and the same is liable to be dismissed. The complainant is not entitled to get any compensation from the OPs and the complaint is liable to be dismissed.
// 7 //
4. The complainant has filed documents. Document No.1-A & 1-B are tickets, document No.2-A and 2-B are also tickets, document No.3 is complaint made by the complainant to Incharge, Railway Police Station, Tatanagar regarding theft of the trolley bag, document 4-A is copy of smss sent by SBI regarding withdrawal of the amount, document No.5 is copy of pass book of Smt. Sita Rathore in respect of account No.6301011329-8 with State Bank of Indore, document No.6 is copy of pass book of Smt. Sita Rathore in respect of account No.570406018-0 with Chhattisgarh Gramin Bank, document No.7 is copy of pass book of Smt. Sita Rathore in respect of account No.34488676001 with State Bank of India, Saragaon, document No.8 is copy of pass book of Krishna Kumar Rathore in respect of Account No.30924551401 with State Bank of India, Saragaon, document No.9 is registered notice dated 29.02.2016 sent by Shri Umesh Rathore, Advocate to the OPs, on behalf of the complainant, document No.10 are postal receipts, document No.11 is acknowledgement, document No12 is reply dated 14.03.2016 sent by Senior Divisional Commercial Manager, Bilaspur to Shri Umesh Rathore, Advocate in response to his registered notice dated 29.02.2016.
5. The OPs have filed documents which is relevant extract of The Railways Act, 1989, letter dated 15.01.2014 sent by Exec. Director / Public Grievances, Railway Board to The General Managers, South East Central // 8 // Railway,Bilaspur, letter dated 05.09.2013 sent by Dy. General Manager/Law to The Director / Public Grievances, New Delhi.
6. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the OPs to pay amounts, as mentioned in para 1 of this order.
7. Shri Rajesh Kumar Dubey, learned counsel appearing for the appellants (OPs) has argued that the complainant got reservation on 01.04.2015 for the journey from Puri to Chapma in Train No.18477 Kaling Utkal Express for his family. The complainant only got reservation for the journey. The complainant did not book the articles and luggage kept by him, as per Railway Manual and Rules. The respondent (complainant) also did not book the suitcase and valuable articles kept in the suitcase and also did not give any declaration at the time of reservation. In the complaint, the respondent (complainant) pleaded that he locked the suitcase with chain, but in the written report, the respondent (complainant) has not mentioned that he locked the suitcase with chain. The respondent (complainant) himself was negligent for theft of his luggage. The complainant lodged written report at Tatanagar Railway Station which comes within jurisdiction of South East Railways, therefore, District Forum, Janjgir - Champa (C.G.) has no jurisdiction to hear and decide the complaint. In the written report, the respondent (complainant) has not mentioned that the articles were stolen because the door of the coach was // 9 // kept opened. The respondent (complainant) has not pleaded that the co- passengers also seen the incident and the complainant narrated them. The affidavit of Co-passenger Sajnjay Rathore, has not been filed by the respondent (complainant). The respondent (complainant) has not followed the rules and regulations and also did not follow the provisions of Section 100 and 103 of Railways Act. So far as withdrawal of amount from the ATM of the complainant is concerned, due to negligent act of the complainant, the amount was withdrawn from ATM for which the appellants (OPs) are not liable. Due to non-joinder of the party, the complaint is not maintainable and the same is liable to be dismissed. The respondent (complainant) is not entitled to get any compensation from the appellants (OPs). The impugned order passed by the District Forum is erroneous and is liable to be set aside. He placed reliance on Appeal No.2015/596 - South East Central Railway Through Senior Divisional Commercial Manager & another Vs. Nisha Jaiswal, decided by this Commission vide order dated 13.07.2016, Revision Petition No.3265 of 2014 - Dinesh Agrawal Vs. Indian Railway & 2 Others Through General Manager (South Eastern Railway Zone) Zone Bilaspur & others, decided by Hon'ble National Commission vide order dated 03.09.2015.
8. The respondent (complainant), who is present in person, has argued that he along with his family and family of his sister had gone to Puri for Mundan Ceremony) (Shaving the head) on 30.03.2015 and the return tickets were also obtained for 01.04.2015. On 01.04.2015, when the // 10 // respondent (complainant) was returning from train and during journey he had duly locked his suitcase and kept his luggage below the seat and duly locked the suitcase with chain. At about 3.00 A.M. to 5.00 A.M. during intervening night of 01.04.2015 & 02.04.2015, the bag of the respondent (complainant) was stolen before reaching to Tatanagar. When the respondent (complainant) had awaken, he asked his wife regarding the articles, then the respondent (complainant) came to know in the night, the staff of the train kept the door open, due to which articles were stolen. The respondent (complainant) was searching the articles. The respondent (complainant) informed the running staff of Police, Tatanagar regarding the incident of theft. At about 6.37 A.M. the respondent (complainant) received message from State Bank of India which came in his mobile that a sum of Rs.5,000/- has been withdrawn from his account from A.T.M. Jamshedpur. The matter was reported to Tatanagar Railway Police Station, but the appellants (OPs) did not settle the claim of the respondent (complainant). The incident of theft took place due to negligence of the staff of the appellants (OPs), therefore, the respondent (complainant) is entitled to get compensation from the appellants (OPs) as prayed in the complaint, but learned District Forum awarded only Rs.25,000/- which is insufficient. The value of the articles which were stolen was Rs.78,500/-. The respondent (complainant) is also entitled for Rs.50,000/- towards compensation for mental agony.
// 11 //
9. We have heard respondent (complainant) and learned counsel appearing for the appellant (O.Ps) and have also perused the record of the District Forum and also the impugned order.
10. Learned District Forum has awarded only Rs.25,000/- to the respondent (complainant). The respondent (complainant) did not file any appeal against the impugned order for enhancement of the awarded amount, therefore, the arguments of the respondent (complainant) is not acceptable that the District Forum has wrongly disallowed his claim.
11. The respondent (complainant) pleaded in his complaint that he kept his luggage below the berth and the suitcase was duly locked with chain. The respondent (complainant) did not plead that which seat/berth of the coach was allotted to him and he was sitted in which seat. It is the duty of the respondent (complainant) to specifically plead that which berth/seat no. was allotted to him and where he was sitted in the coach. Even the respondent (complainant) has not pleaded regarding the coach in which he was travelling.
12. The respondent (complainant) has filed written report to Railway Police Station, Tatanagar, which is marked as document No.3 in which it is mentioned that in Train No.18477 Utkal Express Coach No.S-8 Seat No.10, 11, 13, 14, 15, 16 were allotted to him. In in the written report it is // 12 // mentioned that the bag was kept below seat No.12, but in the said report it is not mentioned that the bag was duly locked with chain.
13. In Revision Petition No.3265 of 2014 - Dinesh Agrawal Vs. Indian Railway & 2 Others Through General Manager (South Eastern Railway Zone) Zone Bilaspur & others (Supra), Hon'ble National Commission has observed thus :-
"5. Section 100 of the Railways Act, 1989 on which reliance is placed by the petitioner reads as under :-
"Responsibility as carrier of luggage - A railways 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..
It would thus be seen that the Indian Railways are not responsible for the theft or loss of the luggage carried by the passengers with them, unless it is shown that such loss or theft occurred due to negligence or misconduct on the part of the Railways or any of its employees."
14. In Revision Petition No.2662 of 2016 - Nisha Jaiswal Vs. South East Central Railway, Through Senior Divisional Commercial Manager and others, decided by Hon'ble National Commission vide order dated 27.02.2017, it has been observed thus :
"10. Even assuming that the averments of the petitioner regarding the stolen property are true, the petitioner has failed to make out a case for // 13 // deficiency service on the part of the respondents. If the petitioner was traveling with valuables like gold, cash etc. in a public transport mode, she should have taken all reasonable care and precaution to prevent any misfortune event as what occurred in the present case. The State Commission has rightly exonerated the respondents herein when the petitioner, by her own conduct, exposed herself to such vulnerability.
12. In our opinion, the State Commission has rightly placed reliance on Section 100 of the Railway Act, 1989, which holds the railway administration liable for loss or damage of the goods booked with the railway department provided the loss or damage occurs on account of any omission or misconduct on the part of the railway personnel. This section reads as follows :-
"100. Responsibility as carrier of luggage - A railways 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..
15. In the instant case, the respondent (complainant) has not booked the goods with Railway Department and he chose to carry the suitcase with him at his own risk. The respondent (complainant) failed to prove that he locked the suitcase with chain. According to the respondent (complainant) // 14 // he went to Tatanagar Police Station, along with Sanjay Rathore, but affidavit of Sanjay Rathroe, has not been filed by the respondent (complainant) in support of his case. The respondent (complainant) has not produced any evidence to prove that the door was kept opened by the employees of the appellants (OPs) and due to the same, some unauthorized person entered in the coach.
16. It would thus be seen that the appellants (OPs) are not responsible for the theft or loss of the luggage carried by the passengers with them, unless it is shown that such loss or theft occurred due to negligence or misconduct on the part of the Railways or any of its employees. We however find that there is no evidence of any unauthorized person having actually entered the coach in which the respondent (complainant) and his family members were travelling. This is respondent's (complainant's) own case that they were sleeping at the time of theft took place. The respondent (complainant) himself pleaded that before reaching of the train to Tatanagar, his bag was stolen and when he awaken he found that his bag was lost and he inquired his wife regarding the articles and at that time of incident of theft, his wife was also sleeping. It appears that the respondent (complainant) and his wife both are sleeping at the time of incident of theft, therefore, they have no personal knowledge about the presence of unauthorized person in the coach and they have also not having personal knowledge that at the time of incident of theft, the door of the coach was kept open.
// 15 //
17. In view of above discussions, we find that the respondent (complainant) has utterly failed to prove that due to negligent act of the staff of the appellants (OPs), the incident of theft took place, therefore, in the instant case Section 100 of the Railways Act, 1989 is applicable. The respondent (complainant) has failed to prove that due to negligence or misconduct on the part appellants (OPs) or on part of any of its servants the incident of theft took place, therefore, the respondent (complainant) is not entitled to get any compensation from the appellants (OPs). Hence, the impugned order passed by the District Forum, is erroneous and is liable to be set aside.
18. Hence, the appeal filed by the appellants (OPs) is allowed and the impugned order dated 12.08.2016, passed by the District Forum, is set aside. Consequently, the complaint filed by the respondent (complainant) shall stand dismissed. No order as to the cost of this appeal.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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