CHIEF COMMERCIAL MANAGER, E. RLY. vs ABHISHANKAR ADHIKARY

THIS is an appeal filed against the order dated 11.4.2003 passed by the Calcutta District Forum Unit-I in the Forum Case No. 45/2002. The present appellants were the O.Ps. before the Forum whereas the present respondent was the complainant. The complainant''s case in brief was as under.

THE complainant was returning to Howrah from Delhi on 4.9.2001 by Delhi-Kalka Mail occupying a berth in an AC 2-Tier Coach. THE train reached Burdwan Station at about 5.45 a.m. on 5.9.2001 and at that time the complainant was the only passenger in his coupe. He left his berth for brushing his teeth and washing his mouth in the wash basin as provided in the coach. But when he came back to his berth in about 5 minutes he found that his VIP Trolley Suitcase containing therein one camera, one Cell Phone, Rs. 5,500/- in cash, the Railway Ticket and some official papers and personal belongings was missing. As the complainant could not locate his suitcase he brought the incident to the notice of the attendant of the coach who allegedly entertained his complaint in a very casual manner. THErefore, on reaching Howrah Station the complainant lodged a complaint with the GRPS Howrah. According to the complainant the loss of the suitcase was caused by the entry of unauthorised persons into the coach and hence the O.Ps. were deficient in the matter of rendering proper service to the complainant. As he could not get any relief from the O.Ps. he filed the case against the O.Ps. claiming various reliefs including the grant of Rs. 60,000/- towards loss of luggage and compensation for harassment and mental agony. THE O.Ps. contested the case by filing a written objection denying therein all the material allegations of the complainant. According to the O.Ps. the loss of the suitcase was due to the negligence of the complainant himself and the Railway Act and Rules do not provide for granting any compensation in a case like the present one. THE Forum examined the various documents filed by the complainant including the copies of the correspondences entered into between him and different officials of the O.Ps. On the basis of the letter written by the Divisional Railway Manager dated 27.9.2001 the Forum concluded that this letter showed the admission on the part of the O.Ps. that unauthorised persons entered the compartment in which the complainant was travelling. THE Forum also came to the conclusion that the two attendants of the compartment were not even reasonably vigilant so as to prevent any loss of articles belonging to the passengers. In coming to the above conclusion the Forum relied upon the affidavit sworn by the complainant apart from the correspondences between the complainant and the O.Ps. THE Forum also relied upon a ruling of the National Commission, I (2003) CPJ 196 (NC)=(2003) CTJ 200 (CP) (NCDRC). THE Forum in its order duly noted the contention of the O.Ps. that as per Coaching Tariff No. 25 Part-I Volume I the luggage of the complainant which was not booked by him with the Railways was carried at his own risk and the Railway Administration could not accept any responsibility in this regard under Section 100 of the Railways Act. However, the Forum did not accept this contention of the O.Ps. particularly in view of the aforesaid ruling of the National Commission. As regards the contents of the stolen suitcase the Forum placed its reliance upon the affidavit as sworn by the complainant and brushed aside the objection of the O.Ps. to the effect that the affidavit did not specify the total valuation of the articles lost by the complainant. After considering all the aspects of the matter the Forum concluded that the O.Ps. were responsible for the loss of the luggage of value Rs. 40,000/-. THE Forum also held that such loss of luggage caused needless mental agony and harassment to the complainant since the O.Ps. hardly took any effective step for redressal of the grievance of the complainant. Accordingly the Forum directed the O.Ps. to pay a sum of Rs. 40,000/- to the complainant towards loss of the luggage, a sum of Rs. 5,000/- towards mental agony and harassment and a sum of Rs. 1,000/- as cost. All the amounts were ordered to be paid by the O.Ps. within 30 days from the date of order, failing which the amount of Rs. 46,000/- as awarded would bear interest @ 8% p.a. till payment. Being aggrieved by this order of the Forum the O.Ps. have come in appeal before the Commission. In the memo of appeal the main grounds taken by the appellants are as under: (1) The complainant''s journey from Delhi to Howrah was secured, smooth and peaceful and hence the question of deficiency in service does not arise. (2) The case of the complainant is barred by Sections 13 and 15 of the Railway Claims Tribunal Act and the complainant''s claim for compensation falls within the exclusive jurisdiction of the Railway Claims Tribunal and accordingly the Forum''s jurisdiction is totally ousted. (3) The complainant''s luggage was not booked and he carried the same at his own risk as per Coaching Tariff No. 25 Part-I (Volume-I) and so no responsibility can be attached to the Railway Administration under Section 100 of the Railways Act. (4) The complainant lost his suitcase for his own negligence as he did not lock the door of his coupe nor did he inform the attendants about his going to the wash basin. (5) When a train halts at a junction station passengers get down and board the train by opening the door and some passengers invite hawkers for taking tea, etc., and all these cannot be prevented by the Coach Attendants. (6) The alleged lifting of the complainant''s suitcase by unknown miscreants is an offence of theft and cannot be the subject matter of a consumer case. (7) The contents of the alleged suitcase were not disclosed by the complainant and as such the Railways cannot admit its liability for the absence of any element of entrustment.

On the basis of the above grounds the appellant prayed that the impugned order of the Forum be set aside.

DURING the hearing of the appeal both sides were present through their learned Advocates, who argued orally. The argument put forward by the learned Advocate for the appellant emphasised the following points. (1) The safety of the luggage carried by the passenger with him cannot be said to be the sole responsibility of the Railways. It is equally the responsibility of the passenger also. (2) Before undertaking the journey the contents of the suitcase and the value thereof were not disclosed. (3) The Railways are not accountable for the loss of any unbooked luggage carried by the passenger. (4) The complainant did not take necessary care and caution to protect his luggage. For example he did not utilise the locking arrangement with the help of a chain as provided with every berth. (5) The complainant failed to furnish any proof in support of his statement regarding the contents of the suitcase and the valuation thereof. There was no evidence at all adduced by the complainant except the affidavit sworn by him. (6) The incident of the alleged theft of the suitcase is not proved by any evidence.

The learned Advocate for the respondent in his argument took the following main points. (1) In a reserved coach it is the responsibility of the Railways to prevent entry of any unauthorised person. It is the contention of the respondent that this is a lacuna on the part of the Railways which remain unexplained in the memo of appeal or in the objection filed before the Forum. (2) When a passenger is travelling in a reserved coach, safe journey along with the safety of the luggage is the passenger''s right which cannot be denied by the Railways. (3) The lapse on the part of the Railways was virtually admitted by the appellant in the letters addressed by them to the complainant. (4) Two rulings were cited in support of the respondent''s contention. These are: (I) 2003 CTJ 196 (CP) (NCDRC) (II) 2004 CTJ 700 (SC) (CP)

WE have carefully considered the memo of appeal as also the argument by the learned Advocate for the appellant. The crux of the argument of the appellant is that Railways cannot accept any responsibility for the luggage carried by the passenger along with him without booking the same with the Railway Authorities. It is also the case of the appellant that the passenger himself should be vigilant enough to prevent any loss of his luggage. Certain provisions of the Railways Act and Rules have been referred to in support of this contention of the appellant. However, the ruling of the National Commission as cited by the respondent has clearly taken the stand that there is a responsibility cast on the T.T.E. attached to the coach to be very vigilant about anyone other than the reserved ticket holders entering the compartment to such an extent that he is required to prevent even a relation of the passenger from entering a coach. The T.T.E. is particularly required to take special care in the night and ensure that intruders, beggars, hawkers and unauthorised persons do not enter the coach. The T.T.E. shall also ensure that the end-doors of a coach are kept locked between 22.00 hours and 6.00 hours to prevent outsiders from entering the coach. The National Commission in the aforesaid ruling concluded that the T.T.E. failed in the performance of his duty which resulted in the incident of theft. WE find that the facts in the case before the National Commission and the facts of the present matter before us are almost similar and hence the ruling of the National Commission as discussed above is very much applicable to the present matter also. About the other ruling cited by the respondent we find that the Apex Court held that a complaint like the present one can be entertained by the Consumer Courts in terms of Section 3 of the Consumer Protection Act regardless of the relevant provision of the Railways Act. In regard to the point made by the appellant that in terms of Section 15 and Section 13 of the Railways Act the jurisdiction of the Consumer Court is ousted inasmuch as any claims are to be adjudicated by the Railway Claims Tribunal, the National Commission has held that the loss of luggage is not covered by Section 13 and as such Section 15 which bars the jurisdiction of the other Courts relating to claims falling under Section 13 has no applicability. On the basis of the above discussion we are of the opinion that there has been deficiency in service on the part of the O.Ps./appellant inasmuch as they failed to exercise the necessary care and caution to prevent the entry of unauthorised person/persons in the reserved AC 2-Tier Coach. Delhi-Kalka Mail in which the complainant was travelling is a prestigious train and it is certainly not too much to expect that the Railway Authorities would take utmost care to ensure the safety of the passengers and their luggage travelling in a reserved 2-Tier AC Coach of that train. However, in the present case the O.Ps. failed to provide this service which was very much expected of them, as a result of which the complainant lost his suitcase containing valuables, apparently taken away by some unauthorised persons entering the compartment. WE have duly considered the point made by the appellant that the passenger himself was not vigilant and careful enough about the safety of the luggage. However, such a lapse on the part of the complainant if any cannot discharge the O.Ps. of their responsibility for ensuring the safety of the luggage by preventing the entry of intruders. The O.Ps.'' allegation that the complainant did not lock the coupe before going to wash basin is totally unacceptable. While a coupe can certainly be locked from inside, it is not possible for a passenger to lock it from outside. The O.Ps. have contended that at a junction station passengers get down from the train and also board the train. While some passengers may get down at Burdwan, it is not possible for any passenger to board Delhi-Kalka Mail at Burdwan for distance restriction applicable to travel by the train and also for the reason that the coach was a reserved AC 2-Tier Coach, and no new passenger would reserve a birth in AC 2-Tier Coach for journey from Burdwan to Howrah. Going by the reasons discussed above we have no hesitation that the O.Ps. can be held liable for deficiency in service. In regard to the valuation of the contents of the suitcase we find that the complainant has not adduced any independent evidence apart from the affidavit sworn by him. In this regard the learned Advocate for the appellant has submitted that a mere affidavit would not serve the purpose and there must be some independent evidence in support of the statement of the complainant. We find some substance in the submission of the appellant. As a matter of fact we find it a little difficult to accept the version of the complainant in toto regarding the contents of the suitcase. Had the suitcase really contained so many valuable items as stated by the complainant, it is not unreasonable to expect the passenger to have been more vigilant and careful about his valuable luggage. Therefore, we are unable to concur with the view of the Forum that the valuation of the stolen suitcase was really Rs. 40,000/-. As already stated no direct evidence is forthcoming from the complainant in this regard and in the absence of such evidence we have no other alternative but to assess the amount in a somewhat ad hoc manner. In our opinion the ends of justice will be met if the compensation amount for the stolen suitcase as also for harassment and mental agony is restricted to Rs. 10,000/-. However, we are not interfering with the award of cost of Rs. 1,000/- as ordered by the Forum. In view of the foregoing discussion we deem it appropriate to pass the following order.

THE appeal is allowed in part on contest and the impugned order of the Forum is modified. THE appellants shall pay a compensation of Rs. 10,000/- and a cost of Rs. 1,000/- to the complainant within one month of the date of service of a copy of this order. THE appeal be disposed of accordingly but without any cost taking into account the facts and the circumstances. Appeal partly allowed.