National Consumer Disputes Redressal
Ashok Kumar Purohit vs Divisional Commercial Manager, South ... on 16 October, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1353 OF 2019 (Against the Order dated 16/04/2019 in Appeal No. 1000/2018 of the State Commission Chhattisgarh) 1. ASHOK KUMAR PUROHIT S/O. LATE SHRI DEOKRISHNA PUROHIT, R/O. 47, VIVEKANAND NAGAR, DISTRICT-RAIPUR CHHATTISGARH ...........Petitioner(s) Versus 1. DIVISIONAL COMMERCIAL MANAGER, SOUTH ESTERN CENTRAL RAILWAY (SECR) & ANR. SOUTH EASTERN CENTRAL RAILWAY (SECR) RAIPUR RAIPUR CHHATTISGARH 2. DIVISIONAL CONNERCIAL MANAGER, SOUTH EASTERN CENTRAL RAILWAY(SECR) NAGPUR, DISTRICT-NAGPUR MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : MOHD. ANIS- UR REHMAN, ADVOCATE FOR THE RESPONDENT : MR. VIKRANT GOYAL, ADVOCATE
Dated : 16 October 2023 ORDER
1. The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 of Consumer Protection Act 1986, against the order dated 16.04.2019 of the State Consumer Disputes Redressal Commission Chhattisgarh (hereinafter referred to as the 'State Commission'), in First Appeal (FA) No.1000 of 2018 in which order dated 20.09.2018 of Raipur District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no. 631 of 2016 was challenged, inter alia praying for dismissal of the order of the State Commission dated 16.04.2019.
2. While the Revision Petitioner (hereinafter also referred to as OPs) were Appellants and the Respondent (hereinafter also referred to as Complainant) was Respondent in the said FA No. 1000 of 2018 before the State Commission, the Revision Petitioners was OP and Respondents was Complainant before the District Commission in the CC no. 631 of 2016.
3. Notice was issued to the Respondents on 27.11.2019 Parties filed Written Arguments/Synopsis on 18.04.2023 and 31.03.2023 respectively.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that Complainant started his journey from Raipur through Train No. 18243 Bilaspur to Bhagat ki Kothi ( Coach B-1) on 25.04.2016 on confirmed ticket. On 26.04.2016 complainant heard lot of noise between 4 -4.15 am and found the train being stopped at Nagpur Railway Station. When he checked the luggage tied under his seat, his entire belongings including two big suitcases were missing. The chain was there but little lock was missing. Luggage of other passengers were also missing in other coaches and those passengers were also seeking to lodge the complaint by stopping train at Nagpur Railway Station. Complaints of only one or two passengers could be registered even after the train stayed for extra time at Nagpur Railway Station. There was no police officer in the entire train when the train departed and after about half an hour, TTE came to his coach, the passengers whose luggages were stolen also came in his coach but their report was not registered. TTE Akshay Kumar started writing complaint on a plain paper after spending some time there due to resentment of the complainant and other passengers. One Police officer Sh Mohan Verma entered the train due to noise of other passengers at the station and the police officer lodged the complaint regarding theft of some co-passengers on the basis of complaint(s) written by TTE. During the journey, the theft of this belongings was reported on 26.04.2016 and crime no.0124/2016 dated 26.04.2016 was recorded by GRP Itarasi Police Station and information was given to the complainant regarding transfer of case diary related to said crime vide letter no.45/16 dated 28.04.2016 of the office of Supdtt. Of Police MP mentioning the incident in the jurisdiction of PS GRP Nagpur. The complainant and his wife spent the whole day on water and tea.
5. On the suggestion of co-passenger, a brief notice of the above incident was given by the complainant to the office of Hon'ble Minister of Railways through email and complainant was told that matter has been transferred to GDRF. On 26.07.2017 it was informed on the complainant's mobile that some accused have been caught. Complainant alleged that there was only TTE in the train and no person from the security force was there. Even no responsible officer from the Railway Administration was there. Being aggrieved of the said act of the OP, the Complainant filed CC before the District Forum. The District Forum vide order dated 20.09.2018 partly allowed the complaint. Being aggrieved of the said order of the District Forum, the OPs appealed in the State Commission and State Commission vide order dated 16.04.2019, allowed the Appeal of the OP. Hence the Complainant is before this Commission in Revision Petition.
6. Petitioner has challenged the said Order dated 16.04.2019 of the State Commission mainly on following grounds:
State Commission has not gone through the documents and affidavits filed by the Petitioner.
Luggage of the complainant was stolen and there was clear proof that someone entered into the coach and no person is permissible in the AC coach without the permission of TTE and attendant.
The observation of State Commission that Railway is not liable for the loss as per section 100 of the Railways Act is not as per law.
The State Commission has not discussed the case law cited before it passed by this Commission in Northern Railway Vs. Neetua Gupta and Others RP No. 364 of 2017 and has overlooked the judgment of this Commission in South East Central Railway and Others Vs. Soni Singh RP No. 2081 of 2018 which dismissed the Revision Petition of Railways.
7. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
7.1. Counsel for the Petitioner repeated the points which are stated in para 6 grounds for challenging the order of the State Commission, hence the same are not being repeated here.
7.2 Counsel for the Respondent argued that complaint is not maintainable as per section 100 of the Railway Act, 1989. Personal luggage in the custody of respondent is his responsibility as the Railway Administration is not rendering any service in respect of luggage and what the passenger is carrying with him or her is not in the knowledge of railway authority and, therefore, Railway cannot be held responsible for deficiency in service.
7.3. Rule 506 (2) of the Coaching Tariff laid down in Schedule-II Part-I states that goods such as gold, silver, pearls, precious stones, jewellery and currency notes have to be booked by paying percentage charge at prescribed rates to make the Railways responsible for the loss and the Complainant ought to have booked the luggage and paid percentage charges as prescribed and, therefore, responsibility cannot be put on Railways for the non-booking of precious articles that they carries with them. The Petitioner did not book his valuable with the Railways. Reliance is placed on the findings of this Commission in RP No. 18 of 2008 titled Vijay Kumar Jain Vs. Union of India.
7.4 Reliance is also placed on the findings of this Commission in RP No. 432 of 2016 titled Union of India Vs. Lakshit Joshi decided on 02.11.2017 and Dinesh Agrawal Vs. Indian Railway and Others - RP No. 3265 of 2014.
8. In Vijay Kumar Jai Vs. Union of India, RP No. 18 of 2008 decided on 17.05.2012, this Commission observed as follows:
Admittedly, in the present case, Petitioner was allotted berth No.41 whereas he kept his luggage at berth no.43. He had not booked the goods. There is no allegation that any stranger was allowed to enter in the compartment. We agree with the view taken by the fora below that the person sitting at berth No.43 may have taken the suitcase of the Petitioner while de-boarding the train. No evidence has been placed on record to show that the suitcase contained the goods worth Rs.15,800/-.
Findings recorded by the fora below are findings of fact, which cannot be interfered with in exercise of revisional jurisdiction. Under Section 21 of the Consumer Protection Act, 1986, this Commission in revisional jurisdiction can interfere with the order passed by the State Commission only if it appears that the Authority below has exercised jurisdiction not vested in it by law or has failed to exercise jurisdiction so vested or has acted in the exercise of its jurisdiction illegally or with material irregularity.
9. In Dinesh Agrawal Vs. Indian Railway and Others, RP No. 3265 of 2014 decided on 03.09.2015, this Commission observed:
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 railway administration shall not be responsible for the loss, destruction, damage, deterioration of 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."
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.
6. The learned counsel for the petitioner submits that though no unauthorized person was entitled to enter the compartment in which the complainant and his wife were travelling, the railway officials permitted the such persons to enter the coach and it was on account of the such unauthorized entry that the theft could be possible. We however find that there is no evidence of any unauthorized person having actually entered the coach in which the complainant and his wife were travelling. This is complainant's own case that they were sleeping at the time of theft took place. Therefore, they possibly cannot have personal knowledge about the alleged presence of some unauthorized persons in the coach. Hence, we are satisfied that the alleged presence of unauthorized persons in the reserved compartment could not be established. The possibility of a fellow passenger, travelling on a reserved ticket having committed the theft and got down at a station, when the complainant was asleep cannot be ruled out in the facts and circumstances of the case. The learned counsel for the petitioner also submits that TTE did not render requisite cooperation to the complainant after the theft was reported to him. The plea taken in the reply filed by the OPs is that the TTE had rendered all possible help to the complainant as soon as he was informed the alleged theft. There is no independent evidence of non-cooperation on the part of the TTE. In any case, the alleged theft cannot be attributed to the said non-cooperation on the part of the TTE since it had already been taken before the matter was reported to him.
10. In Union of India & Anr Vs. Lakshit Joshi, RP No. 432 of 2016 decided on 02.11.2017, this Commission observed :
9. ............. Thus, it is clear that the luggage was lost when the train was at halt at the station when passengers get down the train and some others board the train. In such situation, if the luggage was lying unattended, anybody could have walked off with the bag. This is the time when the TTE and the conductor are also busy in some other necessary activities. Some time even the staff is changed at such big stations. Otherwise, also there are instructions that passengers should not use the washroom when the train is halting at a railway station. In many judgments passed by this Commission, this Commission has taken a view that Section 100 of the Railways Act, 1989 is applicable in such cases and until some negligence or misconduct of any employee is proved, the Indian Railways is not liable. This Commission in the case of Union of India and others vs. Rama Shanker Misra and another (supra) has held that :
"Consumer Protection Act, 1986 - Sections 2(1)(g), 21(b) - Railways -baggage stolen by cutting chain of lock - Loss of valuables - Deficiency in service allege - Compensation claimed - District Forum allowed complaint - State Commission partly allowed appeal - Hence revision - No averment in complaint which could constitute any negligence or misconduct or even deficiency in service on part of railways or any of its employees- Petitioner could have been liable to compensate only if some negligence or misconduct on part of railway employee was established- As no such negligence having even been alleged it would be difficult to sustain impugned order."
x x x x
11. The case cited by the learned counsel for the respondent/complainant which is Union of India through its General Manager vs. Dr (Smt.) Shobha Agarwal (supra) has different facts. In fact, the complainant in the referred case had taken all the precautions and had tied up their suitcase with the chains fastened with the berth and the theft has occurred after cutting the chain during night. Whereas in the present case, theft had occurred in the morning when the train was halting at a big station and the bag was left unattended for some time by the complainant. Thus, the case cited by the learned counsel for the respondent/complainant is not directly applicable in the present case.
11. In Station Superintendent and Anr. Vs. Surender Bhola, 2023 SCC Online SC 741, the Hon'ble Supreme Court held :
"5. We fail to understand as to how the theft could be said to be in any way a deficiency in service by the Railways. If the passenger is not able to protect his own belongings, the Railways cannot be held responsible."
12. From the perusal of various judgments of this Commission relied upon by the respondent / Railways, it is evident that under Section 100 of the Railways Act 1989, Railways are not responsible. 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 and railways could have been liable to compensate only if some negligence or misconduct on the part of railway employee was established.
13. In Northern Railway Vs. Neetu Gupta & Anr, RP No. 3164 of 2017 decided on 14.05.2018, this Commission observed as follows:
6. The learned counsel for the petitioner also relies upon Section 100 of the Railways Act. The aforesaid provision was also considered by this Commission in Syed Mubuddin Rizvi (supra) and the following view was taken:
" 6. As regards Section 100 of the Railways Act, 1989 on which reliance is placed by the petitioner reads as under:
"Responsibility as carrier of luggage - A railway administration shall not be responsible for the loss, destruction, damage, deterioration of 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".
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 on any of its employees."
14. Same was the view taken by this Commission in R.P. No.3799 of 2014 Union of India Vs. Ajay Kumar Agarwalla & Anr. decided on 26.05.2015, wherein this Commission observed :
7. The learned counsel for the petitioner now relies upon Section 103. The aforesaid provision, in my view, has no applicability to a case where compensation is claimed on account of negligence on the part of the railway officials.
8. Coming to the alleged negligence on the part of the petitioners, it is not in dispute that the complainants were travelling in a reserved compartment. In the complaint filed before the concerned District Forum, the petitioners did not dispute the aforesaid position. They also did not dispute the allegation of the complainants that a beggar woman had entered the reserved compartment at Mughal Sarai railway station and had committed theft of the purse being carried by complainant no.1. Since the complainants were travelling in a reserved compartment, it was the duty of the railway officials to ensure that no unauthorized person entered the said compartment at Mughal Sarai railway station. By not preventing the entry of a beggar woman in a reserved compartment, the railway officials committed an act of gross negligence and since the aforesaid negligence resulted into a theft, they are also liable to reimburse the complainants for the loss suffered by them.
15. In South East Central Railway and Anr. Vs. Soni Singh and Connected matter, RP No. 2081 of 2018 and connected matter, decided on 15.03.2019, this Commission held :
7. .....It is the duty of the Railway Authorities to ensure that no unauthorized person travels in the Reserved Coach. If an unauthorized person travels in the Reserved Coach, the Railway authorities fail in discharging their obligation and will result in deficiency in service making them liable to reimburse the passenger for the value of goods/items, which have been stolen or snatched, which has actually happened in the present cases.
16. In Union of India Vs. Ajay Kumar Agarwalla 2015 SCC Online NCDRC 2956, this Commission held that " TTE of coach was negligent in performance of his duties by not keeping the doors of the coach latched when the train was on the move and by not keeping the vestibules doors of coach locked from 10 p.m. to 6 p.m.".............. Hence, it was a negligent act on the part of the TTE and the revisionists are liable to pay the compensation. In General Manager, South Central Railways Vs. Jagannath Mohan Shinde 2012 SCC Online NCDRC 183, this Commission held that "If any unauthorized person is permitted to be present on the reserved compartment of a train, then Section 100 of the Indian Railways Act would not be of any help to the Railways in absolving them from any liability since anyways the Railways is responsible as a carrier of luggage if it is proved that there was negligence on its part." In G.M. South Central Railway Vs. R.V. Kumar 2005 SCC Online NCDRC 222, this Commission observed that "A passenger travelling by a train is entitled to carry certain baggage or luggage within permissible limits of weights, free of cost. There is no question of entrusting such baggage / luggage to the Railways and getting a receipt thereof. If a loss take place of such a luggage, Railways can be held responsible provided that there is negligence on the part of the Railways or any of its servants, provided, of course, that the passenger himself has taken responsible care of his personal baggage as expected of a prudent person." ......... Railway officials by keeping the doors of the coach open and by allowing an unauthorized person to enter the coach have failed to perform their duty which point towards their negligence thus causing a deficiency in service. In Station Master, Indian Railways V s. Sunil Kumar 2018 SCC Online NCDRC, this Commission observed that "We further note that the complainant was travelling with ladies ( mother and wife ) and children on reserved berths in a reserved coach after paying the fares and purchasing the tickets. He was right in agitating that the railways was responsible for safety and security of person and hand-held baggage, including from unknown persons who gained entry unauthorizedly and committed theft ( the railways was undoubtedly responsible for theft of hand-held baggage from running train). Respondent argued that in the present case, theft occurred under similar circumstances as the respondent's belongings were stolen by unauthorized persons in a reserved coach, therefore, the Railways are liable to pay compensation to the respondents.
17. In Indian Railway and Ors. Vs. Uma Agarwal, RP No. 1099 of 2020 decided on 25.07.2023, this Commission took note of instructions of Railways contained in their office letter. No. 98/TG-V/12/3 dated 11.09.1998, which prescribe certain duties of train conductor in Ist AC, 2nd AC, 3rd AC and Ist class coaches, some of which are reproduced below:
5. He shall check the tickets of the passengers in the coach and guide the passengers in occupying their accommodation. He prevents illegal / unauthorized entry in the coach including the platform ticket holders.
11. He shall ensure that the doors of the coaches are kept latched during run of the train and open them as and when required by the passengers.
12. He shall keep the end doors of the vestibule coach locked during 22.00 hrs. to 06.00 hrs to prevent unauthorized entry.
13. He shall remain vigilant particularly during the night time and prevent entry of unauthorized persons / beggars / intruders in the coach.
17. He shall be present in the allotted coach during duty hours and if more than one coach are to be manned, give frequent visits to all the coaches to be manned.
19. He shall attend to any complaint of theft / loss of passenger belongings and lodged the first information report with the GRP in the prescribed format to enable the passenger to continue the journey.
20. He shall carry blank FIR forms for making them available to the passengers in case of any incident of theft of luggage etc. Such forms duly filled in the handed over to the next GRP Post at the scheduled stoppage for further action in the matter.
18. Coming to the facts and circumstances of the present case it is evident that the Complainant / Petitioner was travelling in a reserved coach, the theft happened when the train was in motion, the Complainant had tied the luggage under his seat and locked, but the lock was missing and his entire belongings including two big suitcases were missing. He woke up on hearing lot of noise between 4-4.15 a.m. Luggage of other passengers were also missing in other coaches and those passengers were also seeking to lodge complaint by stopping train at Nagpur Railway Station. Hence, the Complainant in the instant case was not negligent and took due precautions to lock his luggage with the chain, which is what a passenger in a reserved coach can do to take reasonable precaution on his part. It is alleged that TTE came to complainant's coach after about half an hour. Police officer also came and lodged complaint. The theft of Complainant was reported on 26.04.2016 and crime no.0124/2016 dated 26.04.2016 was registered by GRP Itarsi Police Station. Complainant alleged that there was only one TTE in the train and no person from the security force was there.
19. Respondents (Railways) have contended before the State Commission that case of complainant is related to the theft, in which the ownership of the stolen luggage and whether and theft has been done or not is to be certified, which is not possible to be done under the Consumer Protection Act with a brief variance and such cases require detailed investigation and evidence. Therefore, the complaint of the Respondent / Complainant under the Consumer Protection Act is not possible to be redressed.......... The complainant has been negligent towards his luggage and has not been alert, due to which, his luggage was stolen, for which, the Appellants / Opposite Parties are not responsible. The duty of the TTE is only to check the train tickets of the passengers and not to protect the luggage of the passengers. The Respondent / Complainant has failed to protect his luggage, which caused the theft.
State Commission in its order has observed as follows:
"16.........Accordingly, according to section 100 of the Railway Act, 1989, the railway administration will not be responsible for loss, damage and other non-delivery, etc. of passengers, unless the passenger has given details of such valuable luggage to the railway employee. As far as the security of the luggage of the passengers during the journey is concerned, the police can patrol the security point of view, but it is common that each coach has four doors, during the journey, Train stops at each station, where it has a stoppage, where passengers ascend and disembark. Apart from this, all passenger coaches are interconnected from within, in which passengers can go easily from one coach to another. In such a situation, passengers should not expect too much security from the railway administration, they must be alert and aware to protect their own luggage. The conclusion given by the District Forum that the railway administration is responsible for theft of the luggage of the Respondent / Complainant, is completely arbitrary in law and not sustainable."
20. We have carefully gone through the order of the State Commission and do not agree with the reasons given to reject the complaint and set aside the order of the District Forum. This Commission has clearly held in various cases cited that under Section 100 of the Railway Act 1989, 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. Hence, Section 100 does not give a blanket protection to the Railways. If it is shown that the loss or theft occurred due to negligence or misconduct on the part of the railways or any of its employees, then railways are responsible. We have in this order referred to various duties of train conductor in reserved coaches. If TTE fails to perform his prescribed duties, then Railways can be held responsible for any loss caused to the passengers of reserved coaches due to theft, if they have taken reasonable / due precautions to protect their belongings. Hence, we tend to differ with the observations of State Commission as cited above. District Forum in its order has observed :
"8......Incident of theft of two luggages by unknown thief is corroborated by the aforesaid documents and affidavit. Thus, the alleged incident when the luggage of complainant was stolen by an unknown person at night while travelling in reserved coach indicates that actually, how did unauthorized persons entered the reserved coach as it is the duty of the Railway to see that there is no unauthorized entry in the reserved coach. Thus, the way the said incident occurred, it shows deficiency in service on the part of the Railways that unauthorized person entered in the reserved coach of the complainant."
21. In view of foregoing, we find that State Commission went wrong in holding that Railways is not responsible. There is a material irregularity in the order of the State Commission. The State Commission has not appreciated the contents of Section 100 in its entirety. Hence, we set aside the order of the State Commission and restore the order of the District Forum. Revision Petition is disposed off accordingly.
22. The pending IAs in the case, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER