State Consumer Disputes Redressal Commission
Drm, South East Central Railway & Ors. vs Smt. Shalini Jain & Anr. on 12 January, 2023
Appeal No.: DRM, South East Central Railway Date of Pronouncement:
FA/20/301 Vs. 12/01/2023
Smt. Shalini Jain & Anr.
AFR / NAFR
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Date of Institution: 28/08/2020
Date of Final Hearing: 10/01/2023
Date of Pronouncement: 12/01/2023
APPEAL No.- FA/20/301
IN THE MATTER OF :
1. DRM, South East Central Railway,
DRM Office, Fafadih Railway Line,
RAIPUR (C.G.)
2. Senior Divisional Commercial Manager,
SECR, Railway Region,
RAIPUR (C.G.)
3. DRM, Railway Region Jaipur,
Jaipur Railway Station,
JAIPUR (RAJASTHAN)
4. General Manager,
Indian Rail, Rail Bhawan, Near Parliament House,
Raisina Hills Road, D.L.,
NEW DELHI
Through: Shri R.K. Shukla, Advocate
... Appellants.
Vs.
1. Smt. Shalini Jain,
W/o. Shri Bhupendra Jain
2. Shri Bhupendra Jain
S/o. Late Uttam Chand Jain
Both R/o. D-211/5, Devendra Nagar, Raipur
Tah. & Dist. RAIPUR (C.G.)
Through: Shri Bhupendra Jain, Advocate
... Respondents.
CORAM: -
HON'BLE SHRI JUSTICE GAUTAM CHOURDIYA, PRESIDENT
HON'BLE SMT. RUCHI GOEL, MEMBER
HON'BLE SHRI GOPAL CHANDRA SHIL, MEMBER HON'BLE SHRI PRAMOD KUMAR VARMA, MEMBER PRESENT: -
Shri R.K. Shukla, Advocate for the appellants. Respondent No.2 Shri Bhupendra Jain, Advocate in person and for the respondent No.1.
O R DE R PER: - JUSTICE GAUTAM CHOURDIYA, PRESIDENT Feeling aggrieved by order dated 04.07.2020 passed by District Consumer Disputes Redressal Commission, Raipur (hereinafter called DISMISSED Page 1 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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―District Commission‖ for short) in Complaint Case No.548/2016 filed by the complainants/respondents herein, whereby the complaint was partly allowed and the opposite parties / appellants herein were directed to pay jointly or severally the complainants Rs.7,18,491/- with interest @ 6% from the date of filing complaint till the date of payment, Rs.5,000/- as compensation for mental agony and Rs.2,000/- as cost of litigation, this appeal, under Section 41 of the Consumer Protection Act 2019 (hereinafter called ―the Act‖ for short) has been filed.
2. In nutshell the facts of the case are that complainants / respondents went to Jaipur to attend marriage ceremony in their friend's family. Reservation was done on 22.06.2014 to return from Jaipur to Raipur in Train No.22632, Bikaner-Madras AC Superfast Express. For complainant No.1 vide ticket No.59797722, PNR No.2832075137 and Berth Nos.30, 32 & 67 in Coach No. B-5 were reserved and reservation for complainant No.2 was in another Coach. The complainant No.1 went to her berth No.67 of Coach No.B-5 and tied her blue colour suitcase with the help of a chain and locked with the hook given under the seat. In the said suitcase/trolley bag party wear expensive clothes, jewellery, cash and mobile etc. were kept. Being the night time passengers were sleeping and the complainants noticed that some unauthorized persons have entered in the coach and there was crowd around the gate also. Feeling tired the complainant No.1 was also dozing and suddenly heard some noise. She saw that her husband had come to her and he told that the train is stopped in Sawai Madhopur station. Some people were arguing for change of seat/berth with the TTE. Meanwhile, the complainant No.1 went to washroom and her husband returned to his berth. When the complainant No.1 was in washroom there was chain pulling of the train twice and DISMISSED Page 2 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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when the complainant No.1 came back to her berth and checked her luggage, she found that the chain, the suitcase was tied with was cut, the suitcase was stolen and food items etc. were there as it was kept.
3. Immediately, the complainant No.1 called her husband, who along with his friends searched for the suitcase and TTE was informed immediately by them. The TTE gave intimation to Sawai Madhopur station, but the train departed from the station. The complainant No.2 with his friend Anand Mohta asked the TTE to lodge complaint of theft, but the TTE did not cooperate. At that time there was no security personnel/ Police in the train. The TTE said that next station Kota is coming and asked to lodge written complaint there and to give one copy of the complaint to him. Then a brief complaint on a blank paper given by the TTE was written and given to GRP Thana/Chowki Kota, which was received and receipt was issued without putting any seal impression. FIR form was given by the Guard and FIR was lodged with the GRP Chowki Nagda and receipt was obtained. Then the complainants reached Nagpur and from the Nagpur they reached Raipur by another train. In Raipur, copy of the FIR was given to the GRP Thana Raipur and Station Manager, but receipts of which were not given to the complainant. When despite many efforts of the complainants neither any action was taken nor any reply was given by the appellants/ opposite parties, then legal notice was sent through Advocate, which was also not replied by the opposite parties, then alleging deficiency in service upon the appellants/ opposite parties on many counts, the complaint under section 12 of the Consumer Protection Act of 1986 was filed claiming Rs.8,23,000/- against loss of stolen suitcase and other articles along with interest @ 18% p.a., Rs.5,00,000/- as compensation for emotional, mental and financial loss DISMISSED Page 3 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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and Rs.2,00,000/- as compensation for deficiency in service and unfair trade practice along with Rs.25,000/- as cost of litigation.
4. In their joint written statement, the opposite parties / appellants herein have denied the contentions made in the complaint and submitted that on the false and fabricated ground the complaint was filed. It is further submitted that on the relevant date TTI Anup Singh Puniya was on duty in coach No.B-5 of Train No.22632 and neither he was contacted for any incident of theft nor any complaint of theft was made by the complainants. On the basis of imaginary story of theft a fabricated claim was submitted by the complainants. The allegation of the complainants that no security personnel / GRP was available and no security measures was taken by the Railway Department has been specifically denied. It was further averred that as per rule 506.1 of the Indian Railway Conference Association Coaching Tariff No.26 Part I (Volume I) only small articles of personal use can be carried by the passengers in a particular size of trunk, suitcase or boxes. Therefore, the appellants/ opposite parties is not liable for any loss occurred to the complainant and in fact there was no loss occurred to the complainant because there was no any incident of theft in coach No.B-5 of train No.22632 reported to the TTI on duty in the said coach on the relevant date. Ground of jurisdiction of Consumer Fora to hear the dispute was also taken before the District Commission. Denying all the allegations leveled against them in the complaint, the appellants/ opposite parties prayed that the complaint was liable to be dismissed.
5. After considering rival contentions of both parties, learned District Commission has partly allowed the complaint and passed the impugned order in favour of the complainants as aforesaid in paragraph No.1. DISMISSED Page 4 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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6. We have heard arguments advanced by both the learned counsels and perused the record of the District Commission as well as the documents produced before this Commission along with application under order 41 rule 27 of CPC.
7. Arguments of learned counsel for the appellants/opposite parties are mainly based on Section 100 and Section 103 of the Indian Railways Act 1989, Rule 1101 of the Indian Railway Commercial Manual Volume I, Chapter XI and Rule 506.1 of the Indian Railway Conference Association Coaching Tariff No.26 Part I (Volume I), which are as under : -
Section 100 of the Indian Railway Act 1989 -
"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.‖ Section 103 of the Indian Railway Act 1989 -
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 DISMISSED Page 5 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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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).‖ Rule 1101 of the Indian Railway Commercial Manual Volume I, Chapter XI is as under : -
1101. Responsibility of Railway as carrier of such articles: These are the articles of special value. They have been mentioned in Part I of Schedule II of the Railways (Extent of Monetary Liability and Prescription of Percentage Charge) Rules 1990 in exercise of powers under section 103(3) of the Railways Act These articles are as follows:
(i) Gold
(ii) Silver
(iii) Pearls
(iv) Jewellery
(v) Precious stones
(vi) Currency notes and coins other than Government treasure
(vii) Government stamps and stamped paper other than Postal Stationery and Stamps.
The value of such articles/per package must be declared on the Forwarding Note. The booking of such articles will not be done unless value is declared and percentage charge is paid on the excess value.
The amount of claim for loss, destruction, damage, deterioration or non-delivery shall not exceed the value so declared. The rate of percentage charge will be 13 paise per hundred rupees or part thereof per 160 Kms or part thereof. The minimum percentage charge will be rupees two and the maximum percentage charge will be 1% of the excess value.
Learned counsel for the appellants/ opposite parties has also referred to Rule 506.1 & 506.2 of the Indian Railway Conference DISMISSED Page 6 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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Association Coaching Tariff No.26 Part I (Volume I). Rule 506.1 relates to size and dimensions of the personal luggage to be carried by the passengers of AC and First Class and 506.2 relates to the luggage to be carried by passengers of Second Class.
8. It is not in disputed by the appellants that in coach No.B-5, the complainants / respondents were traveling on the date of incident from Jaipur to Nagpur and that fact is also proved by Annexure A-1 and their reservation was confirmed in third AC coach. Immediately on the date of incident GRP Thana Kota railway station was intimated by written complaint Annexure A-3 and filled FIR Form was given to the running train Guard Shri Hansh Raj Sharma, Annexure A-4, mentioning all the articles kept in his trolley suitcase. This document is not denied by the appellants / opposite parties and no contrary evidence has been adduced to show that it is a false and fabricated document. Notice, Annexure A-5, was given to the DRM, Sr. DRM and other authorities of the appellants/opposite parties by registered post A/D and this facts has also been proved by the postal receipts and acknowledgements filed as Annexure A-6 to A-11. The complainants to prove the ownership of ornaments have filed documents Annexure A-22 to A-30, which are bills or proof of purchase of the ornaments purchased from different Jewellery Shops. This fact has also not been controverted by the appellants/opposite parties by filing any cogent evidence.
9. It is a settled principle of law that any passenger can carry his suitcase or bag according to Rule 825 of the Indian Railway Commercial Manual Volume I without booking the baggage. In this regard Rule 825 of the said Manual is as under : -
DISMISSED Page 7 of 13
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"825. Unbooked or partially booked luggage. - (a) The free allowance mentioned in para 803 applies to luggage which has been booked at the starting station. When luggage in excess of the free allowance is found unbooked or partially booked at an intermediate station or at destination, the whole quantity of luggage, excluding the articles allowed free without weighment, should be weighed and the free allowance of luggage granted. The marginal limits are as follows:
Air-conditioned class ............. .. .. 15 Kgs. First class/AC sleeper .. .. ........ . . 10 ,, Second class .. .. .. .. .. ................. 10 ,, Half of this quantity is allowed for child ticket. If the total weight exceeds the free allowance plus marginal allowance, free allowance will be given and the remaining weight will be charged at six times of luggage rate.
(b) When a passenger is detected en route with unbooked or partially booked luggage weighing more than the free allowance and he refuses or is unable to pay/due freight charges on demand, the luggage, after it has been properly packed and fastened, must be booked to the destination under a 'To Pay' Parcel way bill at the nearest station where there is time to do so. The receipt will be handed over to the passengers and the luggage removed to the brake van. The charges will be way-billed as from and to the stations between which the passenger's ticket is available and the passenger will be advised to take delivery at the destination on payment of all charges due.
When a passenger is detected ---------‖ It is also not disputed that in contrary to above Rule 825 of the Indian Railway Commercial Manual Volume I, nothing was being carried by the complainants and nor there was any objection of the TTE, produced before the learned District Commission by the appellants / opposite parties. In these circumstances, the passenger who reserved his/her ticket in AC coach has right to carry his/her luggage with proper care and caution up to the permissible weight without any booking. DISMISSED Page 8 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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10. As per averment made by the complainants they tied their luggage with the help of a chain and locked with a hook given under the berth and after cutting the chain, the trolley suitcase was stolen in running train by some unknown and unauthorized persons. Immediately, he informed the TTE and also gave written intimation to the GRP Thana of the next Station Kota and dully filled FIR Form was given to the Guard and FIR was lodged in GRP Police Station Nagda as has been proved by the complainant.
11. Learned counsel for the appellants/ opposite parties has cited judgement of Hon'ble Supreme Court dated 02.07.2013 in the matter of Vijay Kumar Jain Vs. Union of India & anr. in SLP (Civil) No.34738- 34939 of 2012; judgement of Hon'ble National Commission in the case of Union of India & 3 Ors through General Manager South East Central Railway & others vs. Ramniwas, order dated 12.03.2020, passed in Revision Petition No.547 of 2018; order dated 24.01.2019 in Zonal Manager/General Manager, South East Central Railway Vs. Purushottam Mohta, Revision Petition No.3992 of 2017; order dated 18.09.2017 in Chief Station Manager, South East Central Railway Vs. Smt. Mamta Agrawal, Revision Petition No.690 of 2015; order dated 03.09.2015 in Dinesh Agrawal Vs. Indian Railway & 2 Ors. Through General Mangar, South Eastern Central Railway, Revision Petition No.3265 of 2014; and order of this Commission dated 14.02.2019 in Appeal No.FA/18/759 between South East Central Railway Vs. Saudamini Meshram; order dated 27.02.2019 in appeal No.FA/18/948 between General Manager Commercial Vs. Smt. Asha Yadav, order dated 16.04.2019 in appeal No.FA/2018/1000 between Divisional Commercial Manager, South Eastern Central Railway Vs. Ashok Kumar DISMISSED Page 9 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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Purohit; order dated 19.06.2019 in Appeal No.FA/2019/24 between Union of India (Indian Rail) through Divisional Rail Manager Vs. S.C. Gulati & ors.
12. We have gone through all the above cited judgements of Hon'ble Apex Court, Hon'ble Commission as well as the orders of this Commission also. In all the above cited judgements negligence of the Railway Department could not be proved by any cogent evidence, hence the Railway Department was not found guilty of any deficiency in service. But in the facts of the case in hand, we are of the considered view, as discussed above that the appellants/ opposite parties, Railway Department was negligent in taking due care and precaution of security of the coach, luggage as well as the passengers also as some unauthorized persons were allowed to enter the reserved AC coach. Even there was crowding of unauthorized persons and a situation of hue and cry in the coach, which could have resulted in theft of luggage of the complainants. Hence, the facts of the cases relied by learned counsel for the appellants/ opposite parties can safely be distinguished from the facts of the case in hand.
13. Learned counsel for the complainants / respondent has placed reliance on judgement of Hon'ble Supreme Court dated 12.02.2021 in the case of General Manager Northern Railways & anr. Vs. Radha Ramnathan filed against order dated 04.02.2019 of Hon'ble National Commission in Revision Petition No.1765 of 2017. In the said judgement of Hon'ble National Commission on the basis of judgement of Hon'ble Apex Court in the matter of Sumatidevi M. Dhanwatay v. Union of India Ors., II (2004) CPJ 27 (SC) it was held that the Railway Administration DISMISSED Page 10 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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cannot escape its liability for negligence and deficiency in service in failing to prevent unauthorized persons assaulting passengers in railway compartment and taking away their luggage. Judgement dated 21.02.2017 of State Consumer Disputes Commission in First Appeal No.517/2013 between General Manager Northern Railway Vs. Radha Ramnathan, has also been filed, which was upheld by the Hon'nle National Commissaion and then by the Hon'ble Supreme Court also. We have also gone through Judgement of State Consumer Disputes Redressal Commission, Punjab, Chandigarh dated 25.05.2017 passed in First Appeal No.34 of 2017 between G.M. Northern Railway Vs. Anupama Sharma. In the said judgement the State Consumer Commission Punjab has discussed the judgement of Hon'ble Apext Court in the matter of Vijay Kumar Jain (supra); Sumatidevi M. Dhanwatay (supra) and other judgements of Hon'ble National Commission and has categorically discussed all the responsibilities and duties of the railway in the light of provisions of Indian Railways Act 1989. The question of jurisdiction of Consumer Fora has also been discussed. That was also a case in which during journey bag containing personal belongings and valuable articles were stolen by some unknown persons and immediately intimation was given to Railway authorities and FIR was also lodged. In that case, the duties of the TTE have also been discussed in detail and it was concluded that the TTE is particularly required to take special care in the night. In the present case also there was negligence of the TTE or the attendant who failed to prevent unauthorized persons to enter the reserved AC coach or to prevent crowding of unauthorized persons at the gate inside a reserved AC coach.
DISMISSED Page 11 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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14. We have given our thoughtful consideration to all the above cited cases. In the facts of the present case as per case of the complainant in the night unauthorized persons entered in the reserved AC coach, there was crowding of unauthorized persons near the gate inside reserved AC coach and the TTE failed to prevent such person to enter the coach. To counter this allegation the appellants / opposite parties have not filed any affidavit of the TTE on duty at the relevant time or any other attendant, security personnel etc. Only affidavit of Mr. R. Sudarshan, Senior Division (Commercial) Manager of the South Eastern Central Railway has been filed, which is as far as the facts on the date of incident and the events occurred in the running train is concerned, is merely a hear say statement, which cannot be relied.
15. We are of the considered view that the appellants/ opposite parties have failed to rebut the allegations of negligence and deficiency in service leveled by the complainants. The complainants tied their luggage with the help of a chain and locked it with the hook given underneath the reserved berth and took all precautions for safety of their luggage, but it is apparent that due to negligence committed by the TTE or the attendant of the Railway Authorities, the incident of theft of their trolley suitcase occurred, which amounts deficiency in service and the railway authorities are liable to compensate the loss suffered by the complainants.
16. So as to quantum of award is concerned, we do not find any reason to interfere with the impugned order, as the same is based on all the possible and available documents and the information given in the FIR lodged by the complainants immediately after the incident of theft. We do DISMISSED Page 12 of 13 Appeal No.: DRM, South East Central Railway Date of Pronouncement:
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not find any reason to doubt the documents especially when nothing cogent evidence has been adduced by the appellants / opposite parties.
17. In the circumstances and in the light foregoing discussion we are of the considered opinion that the impugned order does not suffer from any infirmity and does not call for any interference. Hence, the appeal is dismissed and impugned order is affirmed. No order as to cost of this appeal.
(Justice Gautam Chourdiya) (Smt. Ruchi Goel)
President Member
/01/2023 /01/2023
(Gopal Chandra Shil) (Pramod Kumar Varma)
Member Member
/01/2023 /01/2023
Pronounced On: 12th Janurary 2023
DISMISSED Page 13 of 13