State Consumer Disputes Redressal Commission
The General Manager, South Central ... vs Smt. B. Vani Kumari on 1 June, 2022
Before the State Consumer Disputes Redressal Commission
(constituted under the Consumer Protection Act, 2019)
of Telangana, Eruvaka Building, Khairathabad at Hyderabad
FANO.113 OF 2019 AGAINST CC NO.390 OF 2016
ON THE FILE OF DISTRICT COMMISSION-II,HYDERABAD
Between:
The General Manager,
South Central Railways,
Rail Nilayam, Secunderabad.
Appellant/Opposite party
And
Smt B.Vani Kumari W/o K.Jala Rao,
Aged about 56 years, Oc: Dy.CPO (Welfare),
Headquarters Office, Personnel branch,
SCR, Secunderabad.
... Respondent/Complainant
Counsel for the Appellant Smt. Vijaya Sagi
Counsel for the Respondent Sri V.Gouri Sankara Rao
CORAM:
*****
Hon'ble Sri Justice MSK Jaiswal President
aud
Smt Meena Ramanathan . Member
Wednesday, the First day of June Two Thousand Twenty Two Oral Order: *** This is an appeal preferred by the Opposite party aggrieved by the orders dated 19.12.2018 passed by the District Consumer Forum-I, Hyderabad in CC No.390/2016 in allowing the complaint in part and directing the Opposite party therein to pay Rs.2,50,000/- with interest @ 9% per annum from 19.02.2016 till realisation; to pay costs of Rs.10,000/- and compensation of Rs.25,000/-, granting time of (30) days for compliance.
2) For the sake of convenience, the partics are referred to as arrayed in the complaint.
23) It is the case of Complainant that she is working as Deputy Chief Personnel Officer/Welfare in South Central Railways, headquarters at Secunderabad and she proposed to inspect the Railway Institute at Bitragunta and also the Railway Station, Bitragunta to BZA Division 61tragunta Vijayawada) on 18.02.2016 and to to board the Train accordingly she intended No.12710 Simhapuri Express scheduled from Secunderabad at 2255 hours and the train was scheduled to arrive at Bitragunta Railway Station at 0749 hours on 19.02.2016.
4) Accordingly, she boarded the above train on train was 19.02.2016 as the
running late. She was travelling in A-1 coach with vide PNR Berth No.13 No.473-6785775. During the course of before the train journey, 20 minutes reaching to Mahaboobad at 0550 hours, she hand bag was stolen found her by some unknown same to the notice persons and she brought the of TTE after making search of the bag. In the she bag, kept two cellular mobile handsets, ATM card of Rs.1,600/-, two gold bangles weighing about 28Syndicate Bank, cash of grams, one gold chain weighing 38 grams, one gold chain with 23 grams, three mangala sutram weighing about gold finger rings weighing 20 grams, gold ear studs weighing grams and two spectacles worth 6 worth of items Rs.6,000/-, Altogether, the contained in the bag were Rs.3,02,000/-.
5) At the time of
occurrence, neither the Railway Protection
Force
personnel nor the TTE or the bed rolls available and both the coach doors were supplier/coach attendant were kept open in AC-2 tier coach.
She reported the matter to the TTE, who in turn brought to the notice of Sr.DCM/SCR over telephone. Further, she gave complaint to the Kavali Government Railway Police Station on 19.02.2016 at 11.00 am, who registered a case in Cr.No.17/2016 under Section-379 of IPC. She also gave a complaint to the CSC/SC on 23.02.2016 marking copies to the Secretary to General Manager, CCM/SC and CPO/SC and other concerned. Later, the GRP/Kavali Police, transferred the case to GRP/ Khammam on the point of jurisdiction, who in turn registered the case in Cr.No.20/2016. So far, no arrest is caused. Due to the negligence and deficiency of service on the part of Opposite party, she lost her property.
Hence the complaint with a prayer to direct the Opposite party to pay the amount of Rs.3,02,000/- together with interest @ 18% p.a. from 3 19.02.2016 till realisation, award damages of Rs.1,00,000/- and costs of the complaint.
6) Opposite party filed its written version contending that the complaint is not maintainable either in law or on facts and the same is liable to be dismissed on the ground of non-joinder of proper and filed necessary party i.e., Union of India. Further, the complaint is arraying General Manager alone without impleading the concerned Divisional Manager in whose control the theft alleged to have taken Even otherwise, per Section-13 read with Section-15 of the place.
constituted under the Railway Claims Tribunal Act, the Forums Consumer Protection Act are not vested with any jurisdiction to adjudicate the subject matter.
On 18.02.2016, she was on duty to inspect the Railway Institute
7) (Bitragunta) having boarded train No.12710 which suffer from lack of proof. Purther, she boarded the train with huge quantity of gold ornaments and they are not aware of the contents of her personal belongings and no declaration was made to that effect and no evidence is produced to that effect. Carrying such gold ornaments does not suit the occasion. Further, it is mandatory under Section-44.2 of Lokpal and Lokayukta Act, 2013 to furnish the information relating to the assets of which she and her children are jointly and severally owners of property. Hence, there is no deficiency of service on its part and accordingly prayed to dismiss the complaint.
8) During the course of enquiry before the District Forum, in order to prove her case, the Complainant filed her affidavit evidence as PW1 and got marked the documents Ex.Al to A10. On behalf of Opposite party, one Sami Naik, its Deputy Chief Commercial Manager (Claims) and Presenting Officer filed his affidavit evidence as RW1 and got marked the document Ex.B1.
9) The District Forum after considering the material available on record, allowed the complaint bearing CC No.390 of 2016, by orders dated 19.12.2018, as stated, at paragraph No.1, supra.
10) Aggrieved by the said orders, the Appellant preferred the present appeal contending that the forum below failed to consider the fact the rsorcdent does not satisly the definition of a 'consurner' It excceded tlie jurisdliction conferred on it and it refused to accept the legal position. Hence, prayed to allow the appeal by setting aside the orders impugnecd.
)The point that arises for consideration is whether the impugned order as passed by the District Forum suffers from any error or irregularily or whether it is liable to be set asidc, modificd or interfered with, in any manner? To what relief
12) The admitted fact is that Senior Qfficer the Respondent/Complainant was a working with Railways in the capacity of Deputy Chiel Pcrsonnel Officer (Welfarc) at Rail Nilayam, Hydcrabad. Her duty involves her touring different places on official tour for the welfare of the institution. For that purposc, the Railways namely the employer ol the Respondent/ Complainant has issued a pass to the Respondent/Complainant to travel in Railways without there being any need for purchasing any ticket. Not only herself but she is also authoriscd to take along with her certain personal staff when she is on official tour. going
13) In the instant case, according to the Respondent/Complainant she was going on official tour from Sccunderabad 18.02.2016 to inspect the Railway Institute at to Bitragunta on Bitragunta. While she was travelling by Simhapuri Express from Secunderabad to Bitragunta on 18.02.2016, thest took place and she was robbed of her valuable jewellery. She filed a complaint saying that some unknown person robbed her handbag which contained gold jewellery and other documents.
14) The contention of the Appellant Railways is that the Respondent/ Complainant do not come within the ambit of a 'consumer' which is a sine qua non for attracting the jurisdiction of the different hierarchies constituted under the provisions of the Consumer Protection Act. The learned counsel submits that unless it is shown that any person has paid consideration for hiring the good/ services of the Appellant/ Opposite party they only come under the definition of a 'consumer'. If any person hires or avails such services without making any payment or concession offered by way of the service condition, such a person cannot answer the definition of a 'consumer'. Therefore, the learned counsel Submits that the Respondent/ Complainant cannot maintain a complaint under the provisions of the Consumer Protection Act. 5 The learned counsel appearing for the Respondent/Complainant submits that as part of her duty, she was provided with the pass and she was carrying on the official duties and since the pass was provided, it has to be taken as a consideration being paid for hiring the services.
16) After carefully hearing the submissions of both sides and perusing the material on record, we are of the opinion that the Respondent/ Complainant do not answer the description of being a consumer to come within the ambit of the provisions of the Consumer Protection Act. Section-2(1)d) of the Consumer Protection Act, 'tconsumer has been defined as under:
"consumer" means any person who () buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and inchudes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not incude a person who obtains such goods for resale or for any commercial purpose or
(i) 1[hires or avails has been of] any orservices for a consideration which paid or promised partly paid and partly promised or under any system of deferred payment and inchudes any beneficiary of such services other than the person who 1/hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, uwhen such services are availed of with the approval of the first-mentioned person;
2Explanation: For the purposes ofsub-clause (), "commercial purpose" does not inchude use by a consumer of goods bought and used by him exchusively for the purpose of eaming his livelihood, by means ofselfemployment:)..."
17) In the instant case, admittedly the Respondent/Complainant has not paid any charges or any amount for availing the services of the Railways. As a matter of fact, she was duty bound to travel to perform her duties, for which purpose, she was allowed to travel without making any payment. When that is the case, the Respondent/ Complainant cannot be said to be a consumer as contended by the Appellant in the case of medical Railways. A similar analogy can be applied in Government Hospital negligence where a patient underwent treatment Without paying any consideration cannot maintain any complaint under the hospital the provisions of the Consumer Protection Act even though service. The authorities of the Government commits gross deficiency of consideration catena of authorities say that for availing the services, should be paid either by the person or somebody else on his behalf but in the absence of there being any consideration, the fact that the person who is availing the services without any consideration disentitles him/her from claiming any reliefs under the provisions of the Consumer Protection Act.
18) There are catena of authorities on the subject where the theft of belongings of a passenger takes place while travelling in train. The Judgments lay down that when a passenger purchases the ticket by paying the consideration and also opts to pay higher consideration for opting to travel by reserved compartment, the obligation of the Railways is all the more to provide proper and adequate security to serve a passenger who is travelling in reserved compartment, more particularly, for the reason that he is paying more consideration than other passengers who are travelling in an unreserved compartment. What could be gathered from the above is that since the persons are paying the amounts and travelling by reserved compartment by paying extra consideration, the duty is cast upon the Railways to provide adequate Police protection and it has been laid down in several decisions that it is the obligation on the part of the TTC to see that no unauthorised person enters the compartment, more particularly, during night times. One of the duties of the TTC has been laid down in the services is that he is supposed to close the doors immediately after the train starts and not to open it unless an authorised passenger is required to enter or alight from the compartment. All these precautions are taken because the passengers are paying extra consideration for security by opting to travel by reserved compartment. As a matter of fact, the Complainant is part of the authorities who are required to provide protection to bona fide and fare paying passengers.
19) In the instant case, even at the cost of repetition, it can be said that the Respondent/Complainant has not paid any consideration either her behalf. It is by herself or has anybody else paid the consideration on the not as though that the Railways who issued the pass are reimbursing Railways the cost of the travel embarked upon by the Complainant.
could Therefore, we are of the opinion that the Respondent/Complainant not come within the definition of a consumer' for maintaining the complaint.
and
20) The District Forum has failed to consider these crucial aspects has erroneously allowed the complaint, which needs to be interfered and set aside.
order dated
21) result, we allow the appeal and set aside the In the 19.12.2018 passed in CC No.390/2016 by District Forum-11, Hyderabad and consequently dismiss the complaint. However, in the circumstances of the case, the parties to bear their own costs.