National Consumer Disputes Redressal
G.M., South Central Railway vs R.V. Kumar And Anr. on 4 January, 2005
Equivalent citations: IV(2005)CPJ57(NC)
ORDER
Rajyalakshmi Rao, Member
1. This Revision Petition is preferred by the petitioner, G.M., South Central Railway against the order dated 2.9.2003 passed by the State Commission, Andhra Pradesh in F.A. No. 451 of 2000 arising out of the order dated 8.11.1999 passed by the District Forum-II, Hyderabad in O.P. No. 1009 of 1996. Brief facts of the case are:
2. The Complainants, Dr. R.V. Kumar and his wife Dr. R. Aruna, were travelling along with their two children by Madras-Hyderabad Express No. 7053 from Ongole to Hyderabad on 7.9.1996 in a reserved Coach No. S-7. The first complainant (Husband) shifted to another coach by exchanging his seat to the cousin of his wife. When the train reached Miryalaguda railway station the second complainant woke up on hearing, "thief, thief." and found that their two suitcases were missing. As soon as the train reached Miryalaguda railway station, she informed about the theft to the Station Master who advised her to make a complaint in Police Station at the next station, Nalgonda since there was no Police Station at Miryalaguda.
2. According to the complainants, as the train started leaving Miryalaguda railway station, an armed constable on the platform spotted the thief on the roof of the train and asked him to come down. The Railway Authorities did not make any attempt to stop the train. Even though the passengers pulled the chain but train did not stop. The allegation that a constable at Miryalaguda platform noticed the thief on the roof of the compartment was denied by the Railway Authorities. However, this allegation of the complainant appears to be correct in the light of subsequent events. When the train reached Nalgonda, a constable, G. Kesavulu, who was on duty on the platform, searched the roof and found the suitcases on the vestibule between Coache Nos. 7 and 8 and he immediately went up and retrieved one of the suitcases. As the train started in the meanwhile, he could not retrieve the second suitcase which was only retrieved from the same spot on the vestibule, when the train reached Secunderabad Railway Station. Thus the facts of the theft of the suitcases and the narration of the complainant have been confirmed by both the District Forum as well as by the State Commission. The lower Fora held that the following deficiencies in the services provided by the Railways have been proved:
(a) The thief effected his entry and exit through the vestibule which evidently was not locked in the night as it should have been;
Para 12 of the Railway Guide published by the South Central Railways furnished by the complainant contains a list of duties of coach attendants mentions "It is the duty of the coach attendant to ensure that the end doors of the vestibule train are kept locked between 22.00 hours and 6.00 hours to prevent outsiders' entry into the coach."
Para 13 of the same Railway Guide reads: "one of the duties of the attendant is to look after the safety of the luggage in the reserved coaches." This has not been enforced.
(b) The coupe where the party was given seats had a built-in arrangement of provision of a door but for some reason no door was in fact provided. The Railway administration has accepted that "though there is provision for the same, it (door) was removed as per latest instructions." The actual instructions, if any, and the rationale as to how such instruction takes care of the interests of passengers have not been provided.
(c) The train did not stop in spite of the alarm chain being pulled. Even if it is assumed that the passengers did not apply proper force in pulling the chain, the T.T.E. should have pulled the chain when a hue and cry was raised about the theft.
(d) The Station Master at Miryalaguda station did not take effective steps to stop the train and search for the stolen baggage though an alarm was raised when the thief was spotted on roof of the train.
(e) The Railway Authorities did not care to stop the train for sufficient time at Nalgonda to retrieve the second suitcase and to search for the thief.
(f) The Railway Administration made a b statement that they could not provide a T.T.E. for each reserved coach because of shortage of staff and that one T.T.E. was asked to look after four bogies.
3. The lower Fora came to the conclusion, on the facts of the case, that there has been negligence on the part of Railway Administration which includes the Railway Police as well as the Railway Protection Force in not providing proper service to passengers and that their negligence allowed the thief to escape.
4. The single issue that arises in this case for decision is whether the Railway Administration can be held responsible for the theft of baggage carried by the passengers in a reserved coach even when it is established that such theft has taken place because of the negligence of the Railway Administration in controlling and regulating unauthorized access to the reserved compartments and where such administration also failed to catch a thief even though it could have caught the thief with some diligence and immediate action.
5. The fact that the theft has taken place has by and large been admitted. The case of the Railway Administration is:
(i) Because of specific bar under Sections 13 and 15 of the Railway Claims Tribunal Act, 1987, the jurisdiction of the Consumer Court is ousted. In support of this Railway relied on the judgment of the Supreme Court in the Chairman, Thiruvalvar Transport Corporation v. Consumer Protection Council, , wherein it is held that in view of the exclusive jurisdiction of the Claims Tribunal constituted under the Motor Vehicles Act, 1988, the jurisdiction of the Consumer Court is ousted.
(ii) The second submission is that the Railways are responsible only for the loss of luggage booked under Section 100 of the Railways Act, 1989. Relying on this, it is argued that unless the Railway servant has booked a luggage and given a receipt thereof, Railways are not responsible for loss, destruction, damage or deterioration of the luggage personally carried by the passengers.
(iii) Thirdly, an argument has been taken that no proper proof has been adduced about the value of the luggage lost/stolen.
Bar under Sections 13 and 15:
6. The issue whether Sections 13 and 15 of the Railway Claims Tribunal Act, 1987 oust the jurisdiction of the Consumer Courts has been examined in detail in an earlier decision of this Commission in Union of India and Ors. v. Sanjiv Dilsukhrai Dave and Anr., I (2003) CPJ 72 (NC) : R.P. No. 1590 of 2000-Decided on 23.10.2002. In brief it was held in that case that the Railways Act, 1989 makes a clear distinction between "goods" which is defined in Clause 19 of Section 2 and "luggage" as is defined in Clause 23 to mean goods of a passenger carried by him in his charge or entrusted to Railway Administration for carriage.
7. In the said case the Commission observed:
"Under the Railways Act, 1989, 'goods' and 'luggage' are two different things defined separately under Clauses (19) and (23) respectively of Section 2 of the said Act. A plain reading of these clauses show that the word 'luggage' means baggage carrying personal belongings of passengers. Further luggage can be either carried by passenger himself or entrusted to the railway administration for carriage. 'Goods' means containers, pallets or some articles of transport used to consolidate goods and, animals. It appears that 'goods' connotes material in the/nature of merchandise and does not include personal effects or provisions under Section 13(1)(a) of the Railway Claims Tribunal Act. The Tribunal has jurisdiction to try disputes relating to the responsibility of railway administration as carrier in respect of claims of compensation for loss, destruction, damage or non-delivery of animals or goods entrusted to the railway administration carried by Railways. The words used by the Legislature in Section 13(1)(a)(i) are "goods" and has expressly and specifically included "luggage". Thus, under the above section, the Railway Claims Tribunal has jurisdiction to try and entertain the claim for loss, etc. only of 'goods entrusted' to railway administration for carriage by the Railways. In the present case, luggage was carried by the respondents themselves and was not entrusted to the railway administration for carriage by the Railways. Hence, in the absence of entrustment of luggage, the Railway Claims Tribunal has no jurisdiction to try and entertain the dispute involved in the present case."
8. In the said case, this Commission also reiterated the duties of T.T.E. attached to the second class sleeper coach. As per the rules, the duties are as under:
"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 latched when 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 vestibuled 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."
19. Further, Chapter 9 of the Indian Railways Act wholly deals with carriage of goods. A reading of the definition of the word goods and the provisions of Chapter 9 relating to carriage of goods clearly indicates that the reference is to commercial goods. It is clear that such goods have to be entrusted to railway administration for the carriage. Such carriage in respect of certain goods can be charged. Section 65 provides that whenever goods are entrusted to the Railways, a railway receipt shall be given. Section 94 provides that where goods are carried at owner's risk the railway administration shall not be responsible for any loss, etc. except when it is proved that the loss was due to negligence or misconduct on its part or on the part of any of its servants. Section 13(1)(a) of the Railway Claims Tribunal Act applies to goods and animals and does not apply to personal effects, whether we call it luggage or baggage, carried by a passenger. However, in this particular case before us we are not dealing with such goods at all. We are dealing with the luggage as defined at Clause 23 of Section 2 of the Act.
Bar under Section 100:
10. The second argument of the Railways is that under Section 100 of the Railways Act, they are not responsible for any loss of personal luggage, unless it is handed over to the Railways.
11. Section 100 provides for the responsibility of Railways as carriage of luggage and reads as follows:
Section 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 its servants."
12. The aforesaid section is divided into two parts. One part deals with luggage booked by the passengers and other part deals with luggage which is carried out by the passengers in his charge.
13. The first part of Section 100 provides that the railway administration shall not be responsible for loss, etc. of any luggage unless the railway servant has booked the luggage and given receipt thereof. The second part reads that in the case of luggage which is carried by passenger in his charge railway administration shall not be responsible for the loss unless it is also proved that the loss is due to the negligence of the railway staff. In this particular case the findings of the lower Fora are that there has been negligence on the part of Railways or on the part of its servants. There is no case for us to reopen the factual findings.
14. A passenger travelling by a train is entitled to carry certain baggage or luggage within permissible limits of weight, free of cost. There is no question of entrusting such baggage/luggage to the Railways and getting a receipt thereof. If a loss takes place of such a luggage, Railways can be held responsible provided that there is negligence on the part of Railways or any of its servants, provided, of course, that the passenger himself has taken reasonable care of his personal baggage as expected of a prudent person.
15. Further, the question does not require much consideration in view of decision rendered by the Apex Court in Sumatidevi M. Dhanwatay v. Union of India Ors., II (2004) CPJ 27 (SC) : 2004 (3) Supreme 291. The Apex Court observed that:
"Railway Administration 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."
16. The Apex Court relied on the earlier decision in P.A. Narayanan v. Union of India and Ors., .
17. Further, with regard to the loss in a goods train, the Apex Court in Union of India v. Udho Ram & Sons, , pertinently observed as under which is relevant for the facts of the present case:
"It may be true that any precautions taken may not always be successful against the loss in transit on account of theft, but even so evidence should be offered with respect to the extent of the precautions taken and with respect to what the Railway Protection Police itself did at the place, where the train had to stop. It must be taken to be the duty of the Railway Protection Police to get out of the Guard's van whenever the train stops, be it at the railway platform or at any other place. In fact, the necessity to get down and watch the train when it stops at a place other than a station is greater when the train stops at a station, where at least on the station side there would be some persons in whose presence the miscreants would not dare to tamper with any wagon and any tampering to be done at a station is likely to be on the offside."
18. In view of the clear findings of the lower Fora that there has been negligence on the part of the staff of the Railways and as the legal points raised by the Revision Petitioner have no merit. In the result, the revision petition is dismissed. The order passed by the State Commission is upheld. There shall be no order as to costs.