GENERAL MANAGER, SOUTHERN RLY. vs KANTHIMATHI

THIS appeal is directed against the order dated 25.11.1996 in O.P. 960/94 on the file of the District Consumer Disputes Redressal Forum, Chennai (South).

THE appellant is the opposite party while the respondents are the complainants. The short facts leading to the filing of this appeal may in brevity be stated in order to understand the crux of the issue arising for consideration in this action.

The complainants are spouses. The 1st complainant is the wife of the 2nd complainant. The complainants along with some others went on a tour from Madras to New Delhi. The complainants and others boarded the Tamil Nadu Express on 9.6.1993 at 21.00 hrs., at Madras Central Station. The said train was scheduled to reach Delhi on 11.6.1993 at 6 a.m.

THE complainants and others forming a tour group travelled in a II Class Compartment. THE train reached Itarsi Railway Station on the night of 10.6.1993. THE said train, after a brief halt, started moving from Itarsi Railway Station towards Bhopal. THE time was then 8 p.m. At that time, the 1st complainant was seated inside S2 Coach at seat No. 1. When the train was slowly moving, it is said, 3 persons travelling on the foot board of the compartment snatched the gold chain weighing 4 sovereigns worn by the 1st complainant through window and skipped away from the train by jumping out of the train. THE 2nd complainant, it appears, pulled out of the alarm chain and the train also stopped for a few minutes. In the meantime, the 2nd complainant went to the Train Superintendent and attempted to give a written complaint. It appears, the Train Superintendent refused to receive the complaint initially but somehow or other he was persuaded to receive the written complaint given by the 2nd complainant. THE said Train Superintendent, it appears, instructed the 2nd complainant to lodge a complaint to the Railway Police at the next stop namely Bhopal. Accordingly, the 2nd complainant, along with his friend by name Panchapakesan, got down from the train and lodged a complaint before the Railway Police Station at Bhopal. THE train was flagged off after a brief stop over at Bhopal Station. Consequently, the 2nd complainant and his friend Panchapakesan were unable to get into the train. It appears, the 2nd complainant and his friend got into the next available train and reached Delhi to join the travelling group of persons. THE complainants would say that the initial reluctance shown by the Train Superintendent to receive the complaint is nothing but gross deficiency in service on his part. What is further stated is that the flagging off the train after brief stop over without waiting for the arrival of the complainant and his friend who went to the Police Station is also an act which would tantamount to deficiency in service on the part of the Railway officials. Top of all, what is further stated is that the inaction on the part of the Railway Police in tracing the culprits the moment the train was stopped by the pulling of the alarm chain would also amount to deficiency in service on the part of the Railway Administration. Alleging the factors as above, the complainants knocked at the doors of the Forum below for certain reliefs as prayed for in the complaint.

THE opposite party Railway Administration, in pith and substance would contend that there was no deficiency in service on their part inasmuch as, as per Section 100 of the Railway Act, 1989, the Railway is in no way responsible for the loss of the goods which were the personal custody of the passengers. THE Railway Superintendent, who received the complaint from the 2nd complainant, in fact, informed the occurrence over telephone to the Commercial Controller without any loss of time. THE complaint, as such, is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, recorded a finding that there was gross deficiency in service on the part of the Railway Administration in allowing the intruders to snatch the gold chain worn by the 1st complainant, the wife of the 2nd complainant, while travelling in that train and on the finding so recorded directed the opposite party to pay a sum of Rs. 15,840/- towards the value of the jewel, Rs. 25/- towards sleeping berth charges, Rs. 10,000/- as compensation for mental agony and hardship with cost of Rs. 500/- giving one month''s time for compliance of its order. Aggrieved by the order as above, the opposite party Railway Administration resorted to the present action by engaging a Counsel of their choice namely learned Counsel Mr. S. Venkataramani.

ON service of process, the respondents/complainants also entered appearance through a Counsel of their choice namely learned Counsel Mr. K. Raja.

FROM the pith and substance of the arguments of learned Counsel appearing for the parties, the one and only question that crops up for consideration is as to whether the order of the Forum below is sustainable in law, on the facts and in the circumstances of the case. Even at the outset, we may point out that the Forum below did not at all sift, scan or analyse the materials placed on record in the proper perspective to give a legal fitment to such a factual matrix and that perhaps was the reason for the Forum below to have rendered an erroneous order which is impugned in this action.

The responsibility of the Railway Administration and its servants is fixed by the salient provisions adumbrated under Section 100 of the Railways Act, 1989 [Act No. 24 of 1989]. The said section is captioned as "Responsibility as carrier of luggage" and it runs as under : "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."

FROM what has been extracted above, it is rather crystal clear that this section consists of two parts. The first part is relatable to loss, destruction, damage, deterioration or non-delivery of any luggage booked at the railways and receipt had been issued therefor. The second part is relatable to the loss, destruction, damage, deterioration of luggage carried on by the passenger in his charge. In the case covered by the first part, the Railway Administration is held responsible and any luggage booked and a receipt issued therefor (for the loss, destruction, damage, deterioration or non-delivery of any luggage) irrespective of proof of negligence or misconduct on its part or on the part of any of its servants. In the case covered by the second part, it is incumbent to prove that the loss, destruction, damage or deterioration was due to the negligence or misconduct on the part of the Railway Administration or on the part of any of its servants. To put it differently, unless negligence or misconduct either on the part of the Railway Administration or on the part of its servants is proved, no liability can be mulcted either on the part of the Railway Administration or its servants in respect of loss, destruction, damage, etc., of the luggage carried on by the passenger in his charge. In the instant case, admittedly, the 1st complainant wife, was wearing a gold chain weighing 4 sovereigns on her neck at the time of the occurrence. Such being the case, it goes without saying that the second part of Section 100 alone is attracted to such a situation. In order to mulct liability on the part of the Railway Administration or on the part of any of its servants, it is incumbent on the part of the complainants to prove that the loss of the gold chain, the 1st complainant was wearing at the time of the incident was due to the negligence or misconduct on the part of the Railway Administration or on the part of any of its servants. The incident in question had admittedly happened at the time when the 1st complainant was seated inside the S2 Compartment, a II Class Sleeper at seat No. 1. The incident or event is a case of theft stated to have been committed by 3 persons standing at the foot board of the said S2 Compartment at the time when the train in question was moving slowly from Itarsi Railway Station towards Bhopal and the time was then 8 p.m. It is a clear case of theft of jewel which was in the custody of the 1st complainant by some third parties when the train was slowly moving. Can such an occurrence or event of theft by third parties, in such a situation, be stated to be the one resulted as a consequence of negligence or deficiency in service on the part of the Railway Administration or on the part of any of its servants. Duty of the personnel available in the compartment is not to serve as a watch-ward or security of the passengers travelling in the train. The complainants would however say that if the personnel in the complainant had taken enough care in preventing the intruders into the compartment, this sort of an incident as had happened could have been definitely averted and the failure on the part of the personnel in the compartment to do so would tantamount to gross deficiency in service on their part. This sort of a contention or argument appears to wear a credible look on the face of it. A little bit of a probe, if made into such a submission or contention, we can very well understand the utter untenability taking shelter thereunder. As already adverted to, the train had a brief stop over at Itarsi. Some passengers at such a stop over will get down from the train and some passengers may entrain into the train starting their journey from such Station. The personnel in the compartment would be capable of verifying as to the person who just entered into the compartment was a genuine passenger or not, only when all the passengers got settled in the perch of their seats by asking them to produce the ticket they hold for such a travel. In the case on hand, the so-called 3 persons posing as passengers who were standing in the foot board of the train committed a heinous act of theft by snatching the chain worn by the 1st complainant seated inside the S2 Compartment. In such state of affairs, it cannot at all be stated that there was any sort of a deficiency in service on the part of the Railway personnel in the so-called allowing of the intruders which resulted in the loss of the chain, the 1st complainant worn on her neck at the time of the occurrence.

THIS aspect of the matter, the Forum below was unable to understand and that perhaps the reason for arriving at an erroneous conclusion as the one arrived at in stating that there was gross deficiency in service on the part of the Railway personnel in the sense of not preventing the occurrence. The other contention or argument projected is that the non-stopping of the train after the 2nd complainant along with his friend went to the Railway Police Station at Bhopal till upto their arrival is a gross misconduct on the part of the Railway officials. To such a submission or contention, we are unable to affix our seal of approval, on the facts and in the circumstances of the case. We are able to decipher from the averments in the complaint that the 2nd complainant and his friend Panchapakesan took 2 hours to prefer the complaint before the Railway Police Station at Bhopal. Such a long journey train as the Tamil Nadu Express, if halted for a pretty long time of 2 hours waiting for the arrival of the 2nd complainant and his friend, cocksure it is, that such waiting will be definitely cause prejudice to the public interest by putting the rest of the passengers in that train to all sorts of inconvenience and harassment. Such an act on the part of the Railway officials cannot at all be stated to be misconduct or deficiency in service calling for action. One more aspect of the matter which is left out of consideration is that the moving of the train after a brief halt immediately after the occurrence without the culprits being traced which the complainant would say would also amount to deficiency in service on the part of the Railway officials cannot at all acceded to, on the facts and in the circumstances of the case. Admittedly, the intruders, after the snatching of the chain from the neck of the 1st complainant, jumped out of the train and skulped away from the scene in utter darkness. Of course, certain police personnel were available in that train. The train cannot be stopped endlessly allowing the police personnel to run after the culprits and wait for the return till upto their arrival either with success or failure. If the train was allowed to stop for such a venture to be undertaken by the police, such an act on the part of the Railway officials would also cause prejudice to the public interest and in this view of the matter, the moving of the train after a brief halt from where the occurrence took place allowing the complainants to have recourse to launching of a complaint before the police station at the next stop cannot at all be stated to be deficiency in service on their part.

FOR all the reasons, the order of the FORum below deserves to be set aside.

IN fine, the appeal is allowed, the order of the Forum below is set aside. We, however make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.