| Final Order / Judgement | IN THE STATE COMMISSION: DELHI (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Hearing:14.10.2020 Date of Decision:24.11.2020 First Appeal No.809/2014 IN THE MATTER OF THE GENERAL MANAGER Northern Railway Railway Headquarter, Baroda House, New Delhi….Appellant VERSUS MS. PALLAVI DHAR D/o Sh. Rajendra Dhar R/o E-311/A, Sector-27 Noida ....Respondent First Appeal No.738/2014 IN THE MATTER OF THE COMMISSIONER OF POLICE Police Head Quarters, I.T.O., New Delhi THE S.H.O. District Crime and Railways, New Delhi Railway Station, New Delhi ….Appellant VERSUS MS. PALLAVI DHAR D/o Sh. Rajendra Dhar R/o E-311/A, Sector-27 Noida-201301 THE GENERAL MANAGER, Northern Railway, Railway Headquarters Baroda House, New Delhi ....Respondents HON’BLE SH. ANIL SRIVASTAVA, MEMBER 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Present: Sh. Ajay Kumar Upadhayay, Counsel for the Northern Railway None for the Commissioner of Police Sh. Rajinder Dhar, Counsel for the respondents ANIL SRIVASTAVA, MEMBER JUDGEMENT - These two appeals, preferred by the General Manager, Northern Railways and the Commissioner of Police, for short appellants assailing the same order passed by the Consumer Disputes Redressal Forum II, New Delhi on 18.06.2014 in CC-263/2012 awarding the compensation to Ms. Pallavi Dhar for the loss of her bag during her journey from Jammu Tawi to Delhi by Rajdhani Express, were heard together and are being disposed of by a common order.
- Facts of the cases necessary for adjudicating these two appeals are these.
- The complainant boarded Rajdhani Express Train from Jammu Tawi on 22.02.2012 for coming to Delhi along with her husband. The ticket were upgraded and finally journey was undertaken in AC II coach with seat No. 31. During the night the complainant got up around 2.15AM and found her handbag which she had kept besides her head missing. She searched the handbag in the bogey and toilets but could not locate it. The complainant’s husband tried to wake up the attendant to report about the theft of the purse but the attendant was not responsive stating that he was travelling for the first time and had no knowledge of T.T.E. The complainant thereafter contacted attendant of the A2 bogey who went in search of the T.T.E.
- The police personnel were summoned but despite all that the bag so lost could not be located. On the arrival of the train at New Delhi the matter was reported to the Police Station but the FIR was allegedly lodged by the police six days after the reporting of the matter on the first occasion. Finally nothing was done, leading to filing of a complaint before the District Forum which complaint was disposed with a direction to the appellants to pay to the respondent/complainant Rs. 15,540/- the cost of the handset + Rs.2000 in cash. Rs. 25,000/- was also awarded as compensation for the harassment caused. This led to filing of the two appeals by both the Govt. Departments, Northern Railway and the Commissioner of Police praying for setting aside the order there being according to them no deficiency on their part. The appellant in the appeal no. FA-809/2014 namely, Northern Railway has taken the ground that the Railways are not responsible for the unbooked luggage/personal belongings of the passengers. Secondly the District Forum did not consider the Tariff clause 506.1, which deals the luggage in charge of air conditioned Coach, and first class passengers and clause 506.2, which deals the luggage in charge of the 2nd class passengers applicable to the present case. As per these Clause “article taken into the carriage are at the entire risk of the owner’. Railways are not accountable for any article unless booked”. Thirdly their stand is that the police authorities are responsible for the loss. Railways are in no way accountable for the loss done to the complainant/respondent. The appellant in the appeal no. FA-738/2014, namely, Commissioner of Police has built their edifice on the ground, among others, that the. District Forum failed to appreciate the fact that despite the crime having occurred outside the jurisdiction of New Delhi Railway Station the railway police had taken every step to recover the stolen mobile set and ultimately on 04.04.2014, the said mobile was recovered from the accused. The said fact was also brought to the knowledge of the District Forum on 30.04.2014.
- The respondents have filed reply to both the appeals stating that the two appeals so filed are liable to be dismissed since nothing substantial has been stated in the appeal. This matter was listed before this Commission for final hearing on 14.10.2020 when the counsel for the Northern Railways and the counsel for the respondents appeared and advanced their arguments, the appellant for setting aside the order impugned here and the respondents for dismissal of the appeal, no case according to him having been made out for interference. However none appeared on behalf of the Commissioner of Police. I have perused the records of the case and given a careful consideration to the subject matter.
- Short question for adjudication in this appeal is whether there exists any infirmity in the orders passed by the District Forum, allowing the complaint and awarding compensation in favour of the respondents and as against the appellants. This adjudication requires as to whether the opposite parties can deny their liability to compensate the complainant on the face of 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. I may now advert to Section 100 of the Railways Act, 1989, which reads as under:-
“A Railway administration shall not be responsible for the loss, destruction, damage, deterioration or nom-delivery of any luggage unless a railway servant has booked the luggage and given a receipt thereof 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.” - Now I may advert to the law on the subject. The Hon'ble National Commission in the case of Union of India versus Syed Mubuddin Rizvi's as reported in 2016 (3) CLT 542 (NC) after dealing with Sections 13, 15 & 28 of the Railway Claims Tribunal Act, 1987, is pleased to observe 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 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." - The Hon’ble NCDRC is pleased to hold in the matter of Manju Roy Chaudhary versus SE Railways and ors as reported in IV [2011] CPJ 106 (NC) that the railways cannot be made liable to make good loss suffered by petitioner.
- The Hon’ble NCDRC in yet another matter, in the matter of Union of India ors versus Dr. Shruti Der and anr. as reported in IV [2010] CPJ 191 (NC) is pleased to award compensation of Rs. 50,000/- for mental agony and harassment observing that the Railway Staff are required to carry out their duties not in a mechanical manner. In major public service organisation personnel are expected to be courteous, efficient, vigilant and proactive in attitude while dealing with passengers especially distressed seeking help.
- In an another matter, in the matter of South Central Railways and ors. Versus Jagannath Mohan Shinde-II [2012] CPJ 640 (NC), the Hon’ble NCDRC is pleased to observe that the Railways would be responsible towards carrier of luggage if it is proved that loss was due to negligence of the officials on duty. In the given case the TTE failed to perform his duty which amounts to both negligence and deficiency in service as per codified duties to TTE. Railways were accordingly directed to pay compensation.
- Reverting back to the facts of the case (and having regard to the provisions of the Act and the legal position, I am of the considered view that there exists no good ground to accept the appeal. The argument of Railway Administration that they had offered to provide service, on the basis of purchase of ticket, taking the passenger to the destination but, there is no privity of contract between the passengers, and the Railway administration, to safeguard the personal belongings, or unbooked luggage as the case may be cannot be accepted. It is also the duty of the TTE, to ensure safety and security to the passengers.
- In the result both the appeals, FA-809/2014 filed by the Northern Railway and FA-738/2014 filed by the Commissioner of Police are liable to be dismissed and accordingly the orders passed by the District Forum are upheld. The appellants are directed to pay to the complainants the compensation as ordered by the District Forum within 20 days from the date of receipt of this order. The complainant having authorised her father to receive the amount, the appellants are directed to transmit the requisite amount in favour of her father Sh. Rajinder Dhar. Ordered accordingly leaving the parties to bear the cost.
- A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information. Registrar of this Commission is requested to place on record the certified copy of this order in the case file FA-738/2014 for records.
- Both the files be consigned to records.
(ANIL SRIVASTAVA) MEMBER PRONOUNCED ON 24.11.2020 sl | |
