State Consumer Disputes Redressal Commission
G.M. Northern Railway vs Anupama Sharma on 25 May, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No.34 of 2017
Date of institution : 16.01.2017
Date of decision : 25.05.2017
1. General Manager, Northern Railway, Baroda House, New
Delhi.
2. Northern Railway through Divisional Manager, Ferozepur.
3. Station Superintendent, Railway Station, Faridkot.
All through Senior Divisional Commercial Manager, Northern
Railway, Ferozepur Cantt.
.......Appellants-Opposite Parties
Versus
Anupama Sharma aged about 55 years wife of Naresh Sharma,
resident of 1404, Park View Apartment, Sector 29, Noida (Uttar
Pradesh) through her Special Attorney Daksha Mohan wife of Rajat
Mohan c/o Military Head Quarter, 634-C, Faridkot Cantt, District
Faridkot.
........Respondent-Complainant
First Appeal against the order dated
1.11.2016 of the District Consumer
Disputes Redressal Forum, Faridkot.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Shri Karamjit Verma, Advocate. For the respondent : Shri Ravish Bansal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The instant appeal has been filed by the appellants/opposite parties against the order dated 1.11.2016 passed by District First Appeal No.34 of 2017 2 Consumer Disputes Redressal Forum, Faridkot (in short, "District Forum"), whereby the complaint filed by Anupama Sharma, through her Special Attorney, Daksha Mohan, under Section 12 of the Consumer Protection Act, 1986 (in short, "the C.P. Act"), was allowed and the appellants/opposite parties were directed to pay ₹3,00,000/- to the complainant as the value of stolen property along with interest at the rate of 9% per annum from the date of filing the present complaint i.e. 21.04.2016 till final realization. They were also directed to pay ₹20,000/- as compensation on account of harassment and mental agony suffered by her and ₹5,000/- as litigation expenses.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
3. Brief facts, as averred in the complaint, are that the complainant is an old lady and is suffering from diabolic and hypertension. She is permanent resident of Noida (U.P.) and due to her old age and disease she is unable to move frequently to contest the present complaint and as such, the complaint is filed through special power of attorney, who is her real daughter. The son-in-law of the complainant is in Army and is posted at Faridkot and the complainant along with her daughter was to visit at Faridkot to meet him. For that purpose the complainant and her daughter got booked two seats PNR No.8456403516 in the Punjab Mail Train No.12137 and paid for reservation of seats. On 5.5.2015 the complainant and her daughter started their journey from New Delhi to Faridkot and occupied their reserved seats bearing Nos.23 and 1. It is further First Appeal No.34 of 2017 3 averred that the complainant was carrying a hand bag containing her important articles like Debit Cards, Credit Cards, DL, Photographs etc. along with cash of about ₹40,000/- and gold articles like locket and ear rings with pearl chain. All the articles were worth ₹4,50,000/-. The train started from Delhi at about 11.00 p.m. and when it reached between Narwana and Jhakhal, the complainant got up and found that her hand bag was stolen by someone. She immediately tried to find out the Coach attendant but he was not there and then she informed one RPF employee in the train, who gave her information report. Thereafter, on reaching Faridkot, the complainant and her daughter got registered FIR and the same was sent to concerned Police Station. The complainant made many requests to them to find out her stolen articles but all in vain. This act and conduct of the opposite parties amounts to deficiency in service and trade mal practice, which caused harassment and financial loss to the complainant for which she is entitled to compensation and litigation expenses besides main relief.
4. Opposite parties denying any deficiency in service took preliminary objections in their reply that the alleged bag was not booked with Railways and Railway Department is not responsible for the theft of same. The complainant has concocted a false story and has planned to make wrongful gain from opposite parties. Moreover, complaint cannot be decided in summary procedure by the Consumer Forum and the facts given in the complaint are required to be decided by Civil Court. Thus, the complaint should be referred to Civil Court. The District Forum has no jurisdiction to decide the First Appeal No.34 of 2017 4 present complaint as the jurisdiction to try such cases, lies with Railway Claims Tribunal. The present complaint is outcome of alleged offence by some thief, who stole the hand bag of the complainant and, as such, the complainant is not entitled to recover the loss from the opposite parties. Moreover, the FIR lodged by the complainant is still under investigation and, thus, the complaint in hand is premature. Therefore, the same is liable to be dismissed being non-maintainable. It is averred that the complainant herself alleged in the complaint that the said theft occurred in the jurisdiction of P.S. Jakhal, District Fatehabad in the State of Haryana and, therefore, the District Forum has no jurisdiction to decide the present complaint. On merits, all the allegations made in the complaint were denied; being wrong and incorrect. It is averred that the complainant has not provided the photocopy of the Railway Ticket to the opposite parties against which they allegedly travelled. It is also denied that the complainant was having a hand bag containing articles worth ₹4,50,000/-. The story made up by the complainant is fabricated one and is totally false. The complainant has not suffered any loss due to any deficiency in service on the part of the opposite parties and, as such, she is not entitled to recover the claim amount or damages from them. There is no deficiency in service on the part of the opposite parties and the complaint deserves to be dismissed with special costs.
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the First Appeal No.34 of 2017 5 same and hearing learned counsel on their behalf, allowed the complaint, vide impugned order. Hence, this appeal.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
7. Learned counsel for the opposite parties has vehemently argued that the District Forum erred in not appreciating the pleas raised by the opposite parties regarding maintainability of the complaint and the jurisdiction of the District Forum. District Forum committed a grave legal error in not appreciating the fact that the only substantial allegation of the complainant to file the present complaint for compensation is on account of alleged theft of her hand bag containing documents, cash and jewellery in train for which the Railways could not be held responsible because it was never booked along with reservation of the seats. It has further been argued that Section 100 of the Railways Act stipulates that Railways shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless a railway servant has booked the luggage against a receipt. In view of Section 100 of the Railways Act the complainant is not entitled to any claim for the alleged theft which has occurred in the railway compartment. He relied upon the judgment of Hon'ble National Commission dated 7.12.2016 passed in Revision Petition No.650 of 2015 "General Manager, Northern Railway & Others v. Prasanta Kumar Ganguly and others" and argued that the liability of the Railways for payment due to alleged loss arises only if any negligent act on their part or any of its employees is proved and set aside the orders First Appeal No.34 of 2017 6 passed by the Consumer Fora below. He also relied upon the judgment of Hon'ble Supreme Court dated 2.7.2013 passed in SLP (Civil) No.34738-34739 of 2012 (VIJAY KUMAR JAIN v. UNION OF INDIA & ANR.) in which the issue involved was of compensation for loss of un-booked luggage being carried by the passengers in his charge in a reserved compartment and it has been held that Railways cannot be held responsible for the loss of un-booked luggage. Even there is no evidence on the record regarding the value of the stolen gold articles and cash. Filing of an affidavit is not sufficient to prove that the complainant was carrying gold articles and cash in her hand bag. There is no deficiency or negligence on the part of the opposite parties. It has further been argued that the District Forum has committed an illegality in allowing the complaint and passing the impugned order. As such, this appeal is liable to be allowed and the impugned order passed by the District Forum is liable to be set aside.
8. On the other hand, learned counsel for the complainant has vehemently argued that a well reasoned order has been passed by the District Forum after carefully going through the records of the case and appreciating the evidence produced by the complainant on the record. It is the duty of the opposite parties that they should not allow the unauthorized person to enter into the compartment. It is also the duty of the Compartment Incharge i.e. TTE for taking care that unauthorized person does not enter the compartment. There is no illegality or infirmity in the impugned order and the same is liable to be upheld. He relied upon following judgments:- First Appeal No.34 of 2017 7
i) "Sumatidevi M. Dhanwatay v. Union of India and Ors."
2004(3) R.C.R. (Civil) 140 (SC);
ii) "Union of India and others v. Syed Mubuddin Rizvi"
2016(3) CLT 542 (NC);
iii) "General Manager, North Central Railway v.
Dhirendra Kumar Rai & anr." 2015(3) CLT 82 (NC);
iv) "Union of India v. Sanjiv Dilsukharai Dave" 2003(1) CPJ 196 (NC);
v) "G.M, South Central Railway v. R.V. Kumar and Anr."
2005(4) CPJ 57 (NC); and
vi) "Union of India v. Surjit Singh Sood, Advocate" 1998 (1) CPC 449 (Punjab State Commission).
10. We have given our thoughtful consideration to the arguments raised by the learned counsel for both the sides.
11. The case of the complainant is that on 5.5.2015 she along with her daughter was travelling from Delhi to Faridkot in the reserved compartment in Punjab Mail and during journey her bag containing valuable articles and cash was stolen by some unknown persons. She immediately lodged complaint with Railway Authorities and the Police officials escorting in the train and also lodged FIR with the Police at Government Railway Police Station, Hissar and Faridkot. To prove her case the complainant produced copy of information to Train Escort Party as Ex.C-15, copies of statements of complainant and her daughter recorded by Train Escort Party as Ex.C-3 and Ex.C-18, copy of DDR No.27 dated 5.5.2015 recorded by GRP, Faridkot as Ex.C-13, copy of FIR No.58 dated 7.5.2015 as Ex.C-12, First Appeal No.34 of 2017 8 copy of SMS sent by Railway Department regarding registration of complaint by complainant regarding theft as Ex.C-21. The opposite parties raised the objection that alleged hand bag was not booked with them and theft of un-booked articles is not the responsibility of Railway Department. The present complaint is outcome of alleged theft by some thieves and the complainant is not entitled to recover the loss of these articles from opposite parties.
12. The questions require to be answered in the present case are, whether the opposite parties can deny their liability to compensate the complainant by relying upon Section 100 of the Railways Act; and whether there is negligence on the part of the Railway Administration in providing measures whereby removal of handbag by an intruder became possible? Section 100 of the Railways Act, 1989, 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."
13. In Prasanta Kumar Ganguly's case (supra) relied upon by the opposite parties themselves, the Hon'ble National Commission has observed that the liability of the Railways for payment due to alleged loss arises only, if any negligent act on their part or any of its First Appeal No.34 of 2017 9 employees is proved. The revision petition was allowed keeping in view the facts and circumstances of that particular case. The facts of that case were different. Similarly the facts in Vijay Kumar Jain's case (supra) were also different. In that case admittedly the complainant was allotted berth No.41 in Sleeper Coach S-2 and he had voluntarily placed the attaché case on berth No.43. Even the complaint was filed after almost two years of the alleged occurrence in that case. It was in those circumstances that it has been held by the Hon'ble Supreme Court that the railways cannot be held responsible for the alleged loss of attaché case by way of theft or otherwise.
14. The matter is no more res integra. Hon'ble National Commission in Syed Mubuddin Rizvi's case (supra) after dealing with Sections 13, 15 & 28 of the Railway Claims Tribunal Act, 1987, has observed as under:-
"It would thus be seen that the jurisdiction of a Court or an authority other than the Railway Claims Tribunal would be barred only in the matters in which the said tribunal would have jurisdiction in terms of the Railway Claims Tribunal Act. A perusal of Section 13 as extracted herein above would show that the said tribunal does not have jurisdiction to grant compensation to a passenger who has lost the luggage being carried by him with him on account of the negligence of a railway employee. The jurisdiction for the tribunal is restricted to the goods or animals First Appeal No.34 of 2017 10 entrusted to the railway administration for carriage and compensation payable under Section 82A & 124A of the Railways Act. Though the tribunals would also have power to award compensation on account of an untoward incident in terms of Section 124A of the Railways Act, the compensation on account of loss of the carriage being carried by a passenger with him does not come under the jurisdiction of the Railways Claims Tribunal. Consequently, the jurisdiction of Courts and other authorities would not be barred in respect of such a claim."
Hon'ble National Commission also relied upon Section 100 of the Railways Act, 1989 and observed that 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. In the facts of those case it has been observed as under:-
"8. In my opinion, had the T.T.E. and/or coach conductor been present throughout and not sleeping, he would have certainly noticed the miscreants cutting the chain and leaving the compartment with the suitcase of the complainant. The very fact that the cutting of the chain and the theft of the suitcase was not noticed either by the T.T.E. or by the coach conductor clearly indicates that either they were not present in the coach as is First Appeal No.34 of 2017 11 alleged by the complainant or they were sleeping somewhere in the coach instead of taking rounds of the coach moving from one end to the other end. It would be pertinent to note here that this was the case of the petitioner that in fact no theft had taken place and a false report of theft was made by the complainant. This is also not the case of the petitioners in the reply filed before the District Forum that the complainant had not secured his suitcase using an iron chain and lock for the purpose as was alleged by him. Therefore, the case set out by the complainant remained practically unrebutted."
The Revision Petition filed by the Railways was dismissed on the ground that since the theft of the suitcase happened due to negligence on the part of the railway employees, the petitioners are liable to compensate the complainant for the loss sustained by him. Similar view has been taken in the other judgments referred to by the learned counsel for the complainant.
15. Now coming to the facts of the present case. On 5.5.2015 the complainant along with her daughter was travelling from Delhi to Faridkot in the reserved compartment in Punjab Mail and during journey her bag containing valuable articles and cash was stolen by some unknown persons. She immediately lodged complaint with Railway Authorities and the Police officials escorting in the train and also lodged FIR with the Police at Government Railway Police Station, Hissar and Faridkot. A list of duties prescribed by Railway Administration "TTE for Sleeper Coaches" is placed on the record of First Appeal No.34 of 2017 12 the District Forum and the duties mentioned at Serial No.4, 14, 16 and 17 are reproduced hereunder:-
"4. He shall check the tickets of the passengers in the coach, guide them to their berths/seats and prevent unauthorized persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers do not enter the coach.
14. He shall ensure that the doors of the coach are kept locked wherein the train is on the move and open them up for passengers as and when required.
16. He shall ensure that the end doors of vestibule trains are kept locked between 22.00 and 6.00 hrs to prevent outsiders entering the coach.
17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorized persons do not enter the coach."
A bare reading of the same would reveal that there is a responsibility cast on the TTE attached to the Second Class Sleeper Coach to be very vigilant about anyone other than the reserved tickets holders entering the compartment, to such an extent that he is required to prevent even a relation of the passenger holding a platform ticket who comes to see off a passenger from entering a coach. The TTE is particularly required to take special care in the night as brought out in the duties, reproduced above, and cast a responsibility upon him to ensure that the doors of the coach are kept locked when the train is on the move. Admittedly in the present case the TTE failed in the First Appeal No.34 of 2017 13 performance of his duties which led to the commission of theft. It has rightly been held by the District Forum that price difference between the unreserved ticket and a reserved ticket is quite high and the travelling public who buy a reserved ticket would expect that they can enjoy the train journey with a certain minimum amount of security and safety. It has also rightly been held by the District Forum that the Railway Department failed to prevent such unauthorised person to enter the reserved compartment and the opposite parties were deficient and negligent in not providing requisite safety and security to reserved compartments.
16. So far as the jurisdiction of the District Forum is concerned, a part of cause of action has accrued in the territorial jurisdiction of Faridkot as the journey was to be performed from Delhi to Faridkot and the FIR was also lodged at Faridkot. As such, the District Forum at Faridkot has got the territorial jurisdiction to entertain and decide the case.
17. So far as the assessment of the amount of compensation is concerned, the District Forum has rightly assessed the value of the stolen articles to the tune of ₹3,00,000/-.
18. No other point has been argued before us.
19. In view of the discussion held above, we do not find any illegality or infirmity in the impugned order passed by the District Forum. There is no merit in the present appeal and the same is hereby dismissed. However, with no order as to costs.
20. The appellants had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has First Appeal No.34 of 2017 14 accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to them. The complainant may approach the District Forum for the release of the above said amount and the District Forum may pass the appropriate order in this regard.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER May 25, 2017 Bansal