General Manager, Southern Railway vs A. SHAMEEM

REVISION Petition No. 1205 of 2000 arises out of the order passed by the State Commission, Kerala, dismissing the Appeal No. 144 of 2000 filed by the petitioner, the General Manager, Southern Railway and others against the order of the District Forum which had allowed the complaint. Brief facts of the case are, that the complainant is a Lecturer in English in T.K.N. College of Arts and Science, Kollam and Research Scholar, Ph.D. in English. The complainant, M/s. A. Shameem, travelled in the Express Train No. 7029 on 6.11.1998 to Hyderabad from Kollam. Although she was booked with reservation in Coach No. 54 on that day, the TTE directed her to Coach No. 53. Along with the co-traveller, Annamma Oomen she boarded the Coach No. 53 and the train started at 9.00 a.m. from Kollam. She was carrying a suitcase having study material including 35 bibliographic cards and an amount of Rs. 5,800/-. At about 9.00 p.m., a lady intruded into the compartment and other passengers protested and brought the same to the notice of the TTA, but he did not do anything. She contended that at 9.45 p.m., she and her fellow passengers went to sleep in their respective berths and woke up at 2.20 a.m. as the train reached Renigunta. To her surprise, she found that her suitcase was lying open at lavatory door of the compartment and the study materials were thrown out within and outside the compartment. She found that the said lady was missing and on verifying the suitcase the 35 bibliographic cards, study material and that hand-bag containing Rs. 5,800/- were missing. She pulled the alarm chain but the train did not stop. Then she tried to give written complaint to the TTA and the Guard who were not willing to receive. When the train reached Secunderabad, she submitted a written complaint before the S.I. of Police who registered a case of Crime No. 237/1998 under Section 379, IPC. She alleged that the loss and agony of the episode of theft occurred in the circumstances stated were purely due to the negligence of the employees of the opposite party and, therefore, prayed for a direction for the opposite party to pay her Rs. 1 lakh as compensation. The opposite parties maintained that she is not a consumer and that stranger entering the said coach was not true and is not proved and as per the provisions of the Railways Act, 1989 complainant is not eligible for any compensation and prayed for dismissal of complaint. The District Forum has gone into all these various facts and examined the evidence of the complainant and also of her co-passengers and all the other affidavits which were produced to and relied on her contentions. The opposite party has not adduced any evidence. District Forum appreciated the evidence led by the complainant and found opposite party to be deficient in their services and directed them to pay Rs. 20,000/- as compensation along with Rs. 1,000/- as costs. This was challenged by the opposite party in the State Commission. In the State Commission also all these documents were relied on and the State Commission went into the merits as to whether she was a consumer or not. They returned the finding that she is a consumer and the complainant was successful in establishing the negligence of opposite party and consequently the view taken by the District Forum was upheld and the appeal of the opposite parties was set aside. Opposite party has come in revision before us.

IT is argued by the learned Counsel for the petitioner and the same grounds have been again raised before us, as in the State Commission and the District Forum. The learned Counsel for the petitioner argued that the State Commission had not considered Section 97 read with Section 100 of the Railways Act wherein the liability by the petitioner is limited to the extent as stipulated and further stated that there is no privity of contract between the parties as to attract the provisions of this Act. IT is further contended that enough evidence was not led as per the contents of luggage that was carried by the complainant/respondent and the compensation was on higher side. They vehemently denied the contention of the respondent that the chain was pulled and that as to whether it was in working condition or not was not established by any evidence. The petitioner raised many issues such as to whether the respondent''s reservation was in the compartment No. 54 or 53; (2) whether the evidence led by the respondent is to be believed or not regarding the ticketless passenger barging into the compartment; (3) Whether TTE ignored to receive the complaint from her and her co-passenger; (4) whether to believe the evidence of the respondent regarding the theft of the valuable articles as narrated without any corroboration; and (5) whether it is the duty of the railways under Section 100 to guard the luggage or not; and lastly (6) whether the compensation awarded is justified in absence of evidence and in view of the provision laid in the Railways Act.

The above contentions have been reasoned out by the Fora below who returned concurrent findings that there is clear deficiency in service by the petitioner. They believed in the evidence placed by the respondent and the co-passengers. To rebut this, the petitioner did not adduce any evidence be it the mechanic to deny the allegation of defective chain or be it the TTE or the Guard who could have been examined to counter the contentions raised about the coach reservations, intruder entering the compartment and the care taken to ensure the safety of passenger and safeguard their interests in a reserved compartment. The petitioners have not led any evidence before us to interfere in the findings of the Courts below.

IN absence of any contrary documentary evidence regarding the quantification of the loss we place reliance on the respondent''s version regarding the contents and value of the lost articles which are important research papers and cash and this point has been dealt with by the District Forum, and needs no interference. The only law point that requires attention is Section 100 of Railways Act by which the petitioners have no obligation to safeguard the luggage carried by the passenger and are not liable for its theft unless it is specifically booked in luggage van. We reproduce the said Clause 100. "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 therefor, 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."

We have examined the said clause, but find the immunity given is in a general sense. In reality, if the reserved compartment is not protected from intruders and if the railway chain when needed to be used to alert and to warn the Guard in emergency is itself deficiency. In the present case the respondent and co-passengers have pleaded that the TTE was present and yet ignored their pleas and did not offer any help or support, in our opinion is clear deficiency in service and negligence under Section 100 of the Railways Act, 1989. We would like to place reliance on our earlier decision in Union of India & Ors. v. K.K. Shukla & Ors., reported as III (2002) CPJ 191 (NC)=2002 CCC 82 (NC), where unauthorised persons boarded the train during Kissan Union Rally and compensation was paid holding the Railways responsible for not protecting the reserved passenger. It is pertinent to re-produce the relevant extracts here : "......Protection had been given to miscreants and law-breakers in performance to law-abiding citizens. We give no credence to the pleas of the Railways that the whole situation had created a law and order problem. Their stand is totally indefensible. ......... We are also unable to appreciate the reluctance of the Railway Police to act. It is not their duty to give protection to bona fide passengers ? Or is it their duty to give protection to rowdies and hooligans travelling without ticket ? If their duty is former it was certainly a case of dereliction of duty on their part."

HAVING taken the above view that Railways are responsible to care and protect the passengers in the reserved compartment, in absence of any rebuttal to the evidence led by the respondent, in these circumstances of the case, we do not wish to interfere in the reasoning of the order regarding the amount awarded as it seems fair and justified. We dismiss the revision petition and direct the petitioner to pay Rs. 20,000/- with costs assessed at Rs. 3,000/- to the respondent within a period four weeks from the date of receipt of a copy of this order. The Revision Petition is dismissed in above terms. Revision Petition dismissed.