State Consumer Disputes Redressal Commission
Sardarmal Suresh Kumar vs 1. South Central Railways, on 11 October, 2023
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BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.04/2017
Between :
Mr. Sardarmal Suresh Kumar,
S/o. Sardarmal, Aged about: 36 years,
Occ: Business, C/o. Rajendra Bullion,
Door No. 14/67, Anamvari Veedhi,
Nellore - 524001.
...Complainant
And
1.South Central Railways, Rep. by through its General Manager, Rail Nilayam, Secunderabad - 500071.
2. The Additional Director General of Police, Railways, South Central Railways, Secunderabad.
3. Inspector of Police, Government Railway Police, Railway Circle, Kazipet, Railway District-Secunderabad, Post Kazipet, Hanmankonda Mandal, Warangal District.
...Opposite parties Counsel for the Complainant : M/s. G. Rajendra Prasad Counsel for the Opposite party No.1 to 3 : Mr. K. Srinivas Rao QUORUM: Hon'ble Sri V.V.Seshubabu, Member (M-J), & Hon'ble Smt.R.S.Rajeshree, Member (N-J) WEDNESDAY, THE ELEVENTH DAY OF OCTOBER, TWO THOUSAND TWENTY THREE.
***** Order : (Hon'ble Sri V.V.Seshubabu, Member Judicial)
1. The complaint is filed on 04.03.2016 U/s.17 (1) (a) (i) of C.P.Act,1986, to direct the opposite parties to restore 4.5 Kgs. of gold and cash of Rs.1,900/- and in the alternative to pay market value of the gold with reasonable interest, to pay compensation and costs.
2. The brief averments of the complaint are that the complainant is a gold merchant; that on 23.04.2014 he purchased 4.5 2 Kgs. of gold with a different weights through bank transactions from the shop of Chanda Anjaiah Parmeshwar Gold & Silver Merchant, General Bazar, Secunderabad and boarded the train No.2764-Padmavathi Express at Secunderabad and occupied birth No.63 in S10 coach to go Nellore; that some unknown persons speaking in Hindi entered into the coach, 15 minutes before reaching the station, when train stopped due to heavy rain and requested the complainant for water bottle and promised to return the same after reaching the station and accordingly he gave the same; that at Kazipet Railway Station at about 11:00 PM the unknown persons brought a water bottle and given the same to the complainant; that after some time he consumed the water and went into sleep; that on 25.04.2004 at about 6:30 PM complainant came into consciousness and his brother Mr. Rajendra Kumar informed that the complainant is in Madhuri Hospital Pvt. Ltd., and undergoing treatment; that on verification found missing of all gold items from the belt of his abdomen and cash of Rs.1,900/- besides mobile handset bearing No.9440736851 and altogether he was looted with items worth of Rs.26,34,900/- by those unknown four persons; that he gave a complaint to the GRP Police at Tirupati which was registered as crime No.28/2004 on 26.04.2004 U/s.328 & 379 IPC; that the theft took place within the territorial jurisdiction of the opposite parties NO. 2 & 3 while travelling in the train belonged to opposite party No.1; that the opposite parties failed to protect and safeguard the person and property of the passengers including the complainant. Due to their sheer negligence, the theft occurred; that thier employers are vicariously liable to compensate the complainant; that the complaint given to police was closed as UN; that without giving referred notice police filed the final report; that as on the date of complaint the value of the lost gold was @Rs.1,21,69,000/-. The final report was filed in the year 2007 as undetectable. The chapters 3, 4, 14, 16 & 17 of the security management in Indian Railways deals with 3 protection of passengers and their belongings; that if the TTE fails to perform his duties i.e., closed the doors of trains between 22:00 and 6:00 hours to prevent the outsiders entering into the coach is nothing but deficiency in service; hence, the complaint.
3. The brief averments of the written version of opposite party No.1 are that the complaint is not maintainable under law or on facts; that complainant is put to strict proof of all the averments made in the complaint except those that are admitted. The complainant is not a bonafide passenger of the Padmavati Express as on the relevant day as he failed to file the ticket; that there is no evidence to show that the complainant boarded into the train with 4.5 Kgs. of gold and it was lost; that the complaint is bad for not impleading Union of India as party to the complaint; that the complaint is barred by time, since it is filed 13 years after the alleged theft; that the gold items were carried as General Merchandise cannot be classified as luggage for theft of which no compensation is liable to be paid by the railways; that when the gold was carried in a cloth hidden underneath the shirt around waist area is done at the risk of the passenger; that without luggage receipt opposite party No.1 is not liable to pay; that there is no negligence or deficiency of service on the part of opposite party No.1; that the complainant has to blame himself for consuming the water given by unknown persons with this requested to dismiss the complaint with exemplary costs. The written version of opposite parties No. 2 & 3 is almost similar to that of the written version of opposite party No.1.
4. Before this commission, evidence affidavit complainant NO.1 filed as PW1 and got marked Ex.A1 to A24. Evidence affidavit Sri BV Ram Prasad, Deputy Chief Commercial Manager is filed as RW1 for the opposite parties No.1 to 3 and no documents are proposed to be marked. Heard the arguments on the both sides.
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5. Now the point for determination is:-
(i) Whether complainant travelled in the train at the relevant time and carried the gold as pleaded in the complaint?
(ii) Whether there is any deficiency of service on the part of the opposite parties?
(iii) Relief?
6. Points No.1 to 3:- As per the very complaint itself when the train stopped just 15 minutes prior to reaching Kazipet Railway Station, due to heavy rain some four unknown persons entered into the coach number S10 and requested PW1 to provide water to them; that accordingly, PW1 gave his water bottle and they in-turn promised to return the bottle; that after reaching Kazipet station they have given a water bottle and after consuming the same PW1 went into sleep and came into consciousness after one and half days. It means, he might have administered with stupefying drug mixed in the water bottle. It is important to note that by that time PW1 said to have been carrying 4.5 Kgs. of gold hidden around his waist. When any unknown provided the water bottle, PW1 should not have consumed the water therein. It shows, he was negligent. Time and again Indian Railways are cautioning the passengers, not to take eatables from third parties and also not to drink anything given by the unknown persons. PW1 should have exhibited more care and caution in accepting water bottle from unknown persons more so, when he was carrying lot of gold. It is not the case of PW1 that he was provided with sealed water bottle by unknown persons. In such circumstances drinking water from unsealed water bottle amounts to negligence.
7. Ex.A24 goes to show that PW1 purchased the ticket of course, he was only provided with waiting list ticket. It is not mentioned 5 in the said ticket; that he was given any confirmed ticket or RAC ticket in coach number S10. However, as per the written version PW1 was allotted with RAC-Seat No.63 in S10 coach. PW1 not stated that birth number 63 was allotted to him, but only stated that he occupied the said birth. We are of the view that all these are small issues involved in the case on hand.
8. As per Sec.100 of the Railways Act, 1989, liability can be fastened on the railways, only when the person booked the luggage and obtained the receipt. Admittedly, PW1 not booked the luggage and not obtained any receipt for carrying the gold with him. Taking the gold hidden around waist can be considered as done at the personal risk of PW1. So, no liability can be fastened on the opposite party No.1.
9. The GRP police are not under the control of railways and they are under the control of police department of the particular state. Basing on the complaint given by PW1 oppsoti parties No. 2 & 3 have investigated and failed to catch the culprits and recovered the gold. Failure to do so, cannot be considered as deficiency of service, more so, when they have not received any consideration from PW1. In other words there is no consumer and service provider relationship between PW1 and opposite parties No. 2 & 3. The opposite party counsel relied upon the following case law, viz:-
(i) Hon'ble Supreme Court of India in SLP (Civil) No. 34738-
34739/2012 dt.02.07.2013 Between Vijay Kumar Jain And Union of India & Another categorically stated that the railways is not liable to pay any compensation. The facts of the cited case are nearly similar to the facts of the present case.
(ii) Hon'ble NCDRC in Revision Petition No.1916/2014 between East Cost Railways and Another V/s. Kadambari Ramajoga Rao & Another dt.21.04.2017 observed in para No. 12; that unless luggage is booked under a receipt the railways cannot be held liable for the loss of luggage of a passenger U/s. 100 of Railways Act, 1989.
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(iii) Hon'ble NCDRC in Revision Petition No.590/2015 dt.12.09.2017 Between Chief Station Manager, South East Central Railway & 2 Others And Mamta Agarwal, reiterated this scope of Sec.100 for a claim made by passenger for the loss of luggage and even denied the contention; that the TTE or guard allowing unknown persons into the coach as ground to claim compensation. In view of the above case law, we are of the view that, there is no deficiency of service on the part of opposite party No. 1 to 3 to compensate PW1.
10. Ex.A5 to A7 goes to show the purchase of gold by PW1 on 24.04.2004 from Chanda Anjaiah Parameshwar Gold Merchants, Secunderabad. There is no evidence to show that in fact, PW1 was carrying gold in the train at the alleged point of time. Even if it believed, when the gold was not booked as a luggage, the opposite party No.1 is not liable to compensate as per Sec.100 of Railways Act, 1989. Therefore, all the points are answered against the complainant.
11. In the result, the complainant is dismissed without costs.
Typed to the dictation to the steno on system, corrected and pronounced by us in the open bench on 11.10.2023.
SD/- SD/-
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MEMBER(J) MEMBER(NJ)
Dated : 11.10.2023.
BSR
APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The complainants: Opposite parties:
PW1: Mr. Sardarmal Suresh Kumar RW1: B.V. Ram Prasad
EXHIBITS MARKED
For Complainant:
Ex.A1: is the Photostat copy of First Information Report, dated:
26.04.2004.
Ex.A2: is the Photostat copy of First Information Report, dated:
05.05.2004.
Ex.A3: is the Photostat copy of Case Diary Part-II, dated: 06.05.2004. Ex.A4: is the Photostat copy of Final Report filed into Hon'ble court of II- 7
Metropolitan Magistrate cum Judicial First Class Magistrate for Railways, Secunderabad, dated: 03.10.2007.
Ex.A5: is the Photostat copy of Invoice, dated: 24.04.2004. Ex.A6: is the Photostat copy of Invoice, dated: 24.04.2004. Ex.A7: is the Photostat copy Invoice, dated: 24.04.2004. Ex.A8: is the Photostat copy of News Papers clippings appeared in Telugu Dailies Vaartha, Andhra Jyothi & Eenadu in respect of Commission of theft, dated: 26.04.2004.
Ex.A9: is the Photostat copy of Application to the Superintendent of Police, Secunderabad under RTI Act.
Ex.A10: is the Original copy of Application to the Additional D.G.P. (Railway) Hyderabad under RTI Act.
Ex.A11: is the Photostat copy of Application to the Superintendent of Police, Secunderabad under RTI Act.
Ex.A12: is the Original Postal Order Receipts & Postal Receipts. Ex.A13: is the Photostat copy of Application to the Superintendent of Police, Secunderabad under RTI Act.
Ex.A14: is the Photostat copy of Letter, dated: 26.12.2013. Ex.A15: is the Photostat copy of Letter, dated: 26.12.2013. Ex.A16: is the Photostat copy of Letter, dated: 26.12.2013. Ex.A17: is the Original Postal Order Receipts & Postal Receipts. Ex.A18: is the Photostat copy of Memo issued by superintendent of Police, Govt. Railway Police, Secunderabad addressed to the SHO/RPS/Kazipet with Original Postal Cover, dated: 12.03.2014.
Ex.A19: is the Photostat copy of Memo issued by the PIO, O/o.
Additional Director General of Police, Railways, to the complainant under RTI Act with Original Postal Cover, dated: 13.03.2014.
Ex.A20: is the Photostat copy of Letter, dated: 26.03.2014. Ex.A21: is the Photostat copy of Legal Notice, dated: 26.10.2015. Ex.A22: is the Photostat copy of Reply sent by the Senior Commercial Manager (General), SCR to the notice got issued by the complainant along with Original Postal Cover, dated:
30.11.2015.
Ex.A23: is the Original copy of Postal Receipts and Postal Acknowledgements.
Ex.A24: is the Photostat copy of Train Ticket, dated: 24.04.2004. For Opposite Parties:
Nil/-
SD/- SD/-
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MEMBER(M-J) MEMBER (M-NJ)
Dt: 11.10.2023.
BSR