IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Dated this the 31^st  day of January, 2020

              Present:    Sri. Manulal.V.S, President

                                           Smt..Bindhu.R,  Member

                                        Sri. K.M. Anto, Member

CC No. 242/17(Filed on 4/11/17)

Complainant                             :  Omana Narayanan,

                                                             Puthuparambil House,

                                                             Cheeranchira,

                                                             Changanacherry-686106

                                                           (Adv.Avaneesh V.)

                                                          Vs

Opposite parties                                 :  1) Southern Railway,

                                                                   Repted by Railway Divisional

                                                                      Manager, Railway Divisional Office,

                                                                      Thiruvananthapuram, Thykkadu

                                                                       Trivandrum-14

                                                             2) Station Manager,

                                                                 Changancherry Railway Station,

                                                                 Changanacherry-1.

                                                                     (Adv.A.J.Dominic)

O R D E R

Sri. K.M. Anto (Member)

          The brief of the complainant’s case  is as follows.

          The complainant reserved a 2^nd A/c railway ticket from Changanachery Railway Station to Durg, railway station for the journey on 19/9/2016 for Corba Express, train No.28648 and amount of  Rs.3485/- was paid at Changanchery Railway Station.  On 19/9/16 the complainant boarded the train from Thiruvalla Railway Station.  She was allotted seat as A1-29.  She kept her belonging beneath the seat and kept her hand bag in her custody because valuable items were kept in the bag.  She kept the following articles into a small pouch and kept it in the hand bag.  The gold ornaments comprised of one chain having weight of 5 ½  sovereigns, bangles having weight of  2 ½  sovereigns and 2 bangles having weight of 35 sovereigns each and a diamond ring.  Also kept 100 Dirhams worth Rs.1800/- and  Rs. 4000/- in the pouch.  In the night she kept hand bag beneath her head in the upper birth allotted to her.  Before sleeping at 10.30 p.m she checked the bag and confirmed that the gold ornaments were still in the pouch.  When she woke up in the morning at 5.30 a.m she inspected the hand bag and it was found that the pouch in which she kept the gold ornaments was missing.  She informed the T.T.E inside the coach and was advised to give a complaint in the next station Vijayavada, in Andra Pradesh. But she continued her journey to Durg and when the train reached Durg Railway Station she reported about the theft to the Railway Police authorities at Durg.  On the basis of her statement Railway Police authorities registered FIR No.0/ 86/74/16 under Section 379 IPC on 21/9/2016.  As per FI statement the articles worth Rs.3,06,800/- was stolen from the complainant.  The complainant alleges that the theft was happened only because of the lack of security in the A/C coach.  The T.T.E of the said coach was negligent in performance of his duties by not keeping doors of the coach locked when the train was on move and by not keeping the vestibules doors of the coach locked from 10 p.m to 6 a.m.  The complainant  alleges that the act of the opposite party by not providing sufficient security in A/C coach in which the petitioner travelled amounts to deficiency of service and the opposite parties are liable to pay the loss of Rs.3,06,800/- and the mental pain should also be compensated.  Hence the  complaint.

                On receiving the notice, opposite party appeared before this forum and filed joint version as follows.

          As per the version of the opposite parties there is no consumer dispute between the petitioner and opposite parties.  Investigation with respect to the alleged theft is to be conducted by concerned Police authorities and the trial of the case is to be conducted by the Criminal Court.  The Consumer Disputes Redressal Forum does not have jurisdiction to entertain the complaint and make enquiry with regard to the alleged wrong of theft.  They claim that the TTE or any railway servant/employee was not responsible for keeping the belongings of the petitioner during the journey.  The opposite parties did not know whether the petitioner kept her belongings beneath the seat and kept her hand bag which contained the valuables in her custody as stated in the petition.  Keeping the valuable items was solely the responsibility and duty of the petitioner who was a passenger.  The luggage(belongings including the hand bag) of the petitioner was not got booked.  Any railway servant has not booked the luggage and given a receipt.  The railway did not have any responsibility in respect of the luggage as under Section 100 of the Railway Act.  There was no deficiency of service on the part of the Railway in providing security to the coach where the petitioner was accommodated.  The railway authorities took all safety measures for the protection of passengers and their things in the coach where the complainant was accommodated.  The TTE took all security measures by keeping the vestibules and doors of the coach closed during the time between 10 p.m and 6 a.m.  The opposite parties did not cause any loss or damages to the petitioner.  Hence the allegations were denied.

          The proof affidavit was filed by 1^st witness of the opposite party and submitted that he was the TTE of the coach in which the petitioner was travelling.  He took his duty in train No.22648 on 19/9/16 between Chennai and Vijayawada.  He manned the coaches A1-13055, B1-08123, B2-13101 and B3 11101 of the train.  While on duty around 5.30 hrs on 20/9/16 the petitioner reported the missing of the hand bag and at that time the train was nearing Vijayawada station.  He guided the passenger to report the matter to the local police at Vijayawada.  But she did not file the complaint at Vijayawada.  It was also stated that the TTE or  any railway servant/employee was not responsible for keeping the belongings of the complainant during the journey.  Keeping of the belongings including the hand bag which contained in the alleged valuable items was solely the responsibility and duty of the petitioner.  The luggage (including the hand bag) for the petitioner was not got booked.  The luggage was carried by the petitioner in her own charge.  Hence the opposite parties do not have any liability to pay the complainant any amount as compensation for the alleged damages.

          The complainant filed proof affidavit along with documents which were marked as Ext.A1 and A2. The opposite parties filed proof affidavit and P.Reghunathan, Deputy Chief Ticket Inspector filed chief affidavit from the side of the opposite party.

          On perusal of the complaint, version and evidence on records we would like to consider the following points.

1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service from the part of the opposite parties?
3. If so what are the reliefs and costs?

For the sake of convenience, we would like to consider point No.1 and 2 together.

Point No.1 & 2

           On going through the evidence adduced and also from Ext.A1 it is proved that the complainant reserved Tatkal Reservation Ticket for the journey from Thiruvalla Railway station to Durg Railway Station in Train No.28648 Corba Express Train for the journey on 19/9/2016 for a consideration of Rs. 3485/-.  The complainant boarded said train No.28648 Corba Express from Thiruvalla Railway Station on 19/9/2016 and she travelled upto Durg Railway station in II AC Reserved compartment with berth No.A1-29.

          Thus the complainant is a consumer of the opposite  parties. 

The complainant kept valuable items in a pouch and the pouch was put inside a bag.  She kept the bag in her custody.  She kept her bag beneath her head and checked thevaluables at 10.30 pm on 19/9/2016 before going to sleep in her berth.  At about 5.30 am on 20/9/2016 she woke up and checked the bag and she found that the pouch in which the gold ornaments were kept was missing.  She informed the theft to the TTE and the TTE who filed affidavit also confirm the reporting of the theft at about 5.30 am on 20/9/2016.  The train was nearing Vijayawada railway station and the duty TTE advised the complainant to lodge a petition before the police authorities.  According to the petitioner property stolen were (1) one chain having weight of 5 ½ sovereign(2) Bangles having weight 2 ½  sovereign( 3) 2 bangles having weight 35 sovereign each (4) A diamond Ring 5) 100 Dirhams worth Rs.1800/- (6)Rs. 4000/- in cash.  The complainant continued her journey to Durg and on reaching Durg railway station she reported before police authorities and a criminal case in Cr.No. 0/ 86/74/16 dtd 21/9/16  under Section 379 IPC was registered on 21/9/2016. The property lost is worth Rs.306800/-.    Ext.A2 is the copy of FIR.

The case of the opposite parties that the valuables are not booked with railway and the valuables are carried by the complainant herself in her own charge and responsibility.  The opposite parties claim they are not responsible for the loss of luggage as per section 100 of the Railway Act.

          The decision of the National Commission in General Manager South Central Railway Vs R.V.Kumar IV(2005)CPJ 57 it is held that

“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”.

As per the affidavit of the complainant she had kept the bag containing the valuable items beneath her head while going for sleep at 10.30 pm on 19/9/2016 in the upper berth allotted to her.

In Union of India Vs. Sanjiv Disukhrai Dave and Ans I(2003)CPJ 72 (NC) Hon’ble National Commission has pointed out the duties of TTEs ,in  (para 10).  These read as follows.

“10. As regards the issue of negligence of Railway administration, a list of duties prescribed by railway administration “TTE for sleeper Coaches” is brought on record.   Of these duties prescribed at Sl No.4,14,16 and 17 are very relevant.  These read as follows.”

4.He shall check the tickets of passengers in the coach, guide them to their berth/seats and prevent unauthorized persons from the coach.  He shall in particular ensure that person 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 coaches are kept latched when the train is on 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,  beggar, hawkers and unauthorized person do not enter the coach.

The above duties of the  TTE in sleeper coaches clearly shows that there is a responsibility cast on the TTE attached to the sleeper coach to be very vigilant about the unauthorized entry of outsiders.

It is evident that since the theft had occurred between 10.30 pm and 5.30 am the TTE on duty failed to prevent the occurrence of theft by providing sufficient security to the complainant and her personal luggage.  It is further evident that the TTE on duty had not taken any positive actions to locate the assailants and stolen property, on getting information regarding the occurrence of theft.

On the above findings we are of the view that there is negligence on the part of the opposite parties which amounts to deficiency in service.    Due to the act of deficiency in service by the opposite parties, the complainant had lost valuables worth Rs. 306800/-.  The loss suffered by the petitioner is to be compensated by the opposite parties.  Therefore Point No. 1 and 2 found in favour of the complainant.

In the result the complaint is allowed and pass the following orders.

1. The opposite party is hereby directed to pay Rs.3,06800/- to the complainant with 9% interest from the date of this order till realization.
2. The opposite party is directed to pay compensation of Rs.10000/- along with cost of Rs.2500/- to the complainant.

The order shall be complied with within 30 days from the date of receipt of copy of the order.

          Pronounced in the Open Forum on this the 31^st day of January, 2020.

Sri. K.M. Anto, Member        Sd/-

Sri. Manulal.V.S, President   Sd/-

           Smt..Bindhu.R,  Member      Sd/-

Appendix

Exhibits Marked on the side of the complainant.

A1- Copy of railway ticket

A2-Copy of FIR

By Order,

Senior Superintendent.