UNION OF INDIA vs AJAY KUMAR AGARWALLA & ANR

The complainants booked accommodation in a sleeper class compartment of train No. 8407 (Heerakhand Express), for travelling from Sambalpur to Nizamuddin on 29.11.2005. They boarded the aforesaid train at Sambalpur and occupied Berth Nos. 31 and 32 in Coach No. S-2 of the said train. In the night they chained their respective suit cases by inter-locking with the device provided under the lower berth. However, early in the morning of next day, at Sagar Railway Station, they found that their suit cases had been stolen after cutting the iron chain. A complaint was lodged by them in the complaint box provided by the guard. At Bina Railway Station, the matter was reported to the GRPS. Another report was lodged when the complainants reached Nizamuddin. According to the complainant No.1, he had kept Rs.52,000/- in cash, besides, clothes, two mobile phones etc. in his suit case, whereas complainant No.2 claims to have kept cash amounting to Rs.18,000/-, besides clothes and documents in his suit case. According to the complainant No.1, Rs. 3500/- were withdrawn from his bank using the ATM card which he had kept in his suitcase. Alleging deficiency on the part of the Railway officials, on account of the doors of the coach having not been locked in the night so as to prevent outsiders to enter in the coach, the complainants approached the concerned District Forum.

The complaint was resisted by the petitioner. It was alleged in the reply that, in terms of Rule 1101 of Indian Railways Commercial Manual, Vol. I, Chapter XI and Rule 506.2 of the India Railway Conference Association Coaching Tariff No.25, Part-I (Vol.I), Chapter V, the articles of luggage are carried in the train at the risk of the owner and therefore, the Railways is not liable for any loss or theft of the said articles.

Vide its order dated 26.6.2007, the concerned District Forum directed the opposite party to pay compensation amounting to Rs.40,000/- to complainant No.1 and Rs. 20,000/- to the complainant No.2. The petitioner was also directed to pay Rs.5,000/- to the complainants towards the cost of litigation.

Being aggrieved form the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. Vide impugned order dated 28.8.2014, the State Commission reduced the compensation awarded to the complainant No.1 from Rs.40,000/- to Rs.36,500/- while maintaining the rest of the order passed by the District Forum. Being aggrieved, the petitioner is before us by way of this revision petition.

As far as Section 103 of the Railways Act is concerned, that would have no application in the case before us since the aforesaid Section applies only to a case where a consignment is entrusted to the Railway Administration for carriage and the value of such consignment is not declared by the consignor. As far as Rule 146 and 500 of the Coaching Tariff No. 24 Part-I Vol. I and Rule-506.12 of the Indian Railways Conference Association Coaching Tariff No.25 (Part-I) Vol. I are concerned, they have no applicability to a case where the loss or theft of the luggage carried by a passenger takes place on account of negligence on the part of the railway officials.

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Section 100 of the Railways Act, 1989 on which reliance is placed by the petitioner reads as under: "Responsibility as carrier of luggage - A railway administration shall not be responsible for the loss, destruction, damage, deterioration of non-delivery of any luggage unless a railway servant has booked the luggage and given a receipt therefore 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".

It would thus be seen that the Indian Railways are not responsible for the theft or loss of the luggage carried by the passengers with them, unless it is shown that such loss or theft occurred due to negligence or misconduct on the part of the Railways on any of its employees. However, the case of the complainants is that the theft of their luggage could be possible only because the doors of the coach were not locked from inside by the concerned TTE. This is also their case that it was the mandatory duty of the TTE to lock the end-doors of the coach from inside, between 10 P.M. to 6 A.M. According to them, had the end-doors been locked during night, it would not have been possible for an unauthorized person to enter the coach, cut the iron chain with which the suitcases had been secured and commit theft of the said suitcases. According to the complainants, even the coach doors were not kept latched while train was on the move.

Vide Circular dated 11.9.1998, Government of India, Ministry of Railways published some of the important duties / responsibilities of various categories of ticket checking staff such as Train Superintendent / Conductors and TTEs for strict compliance by all concerned. As per Clause 14 of the aforesaid circular, the duties assigned to TTEs of second class sleeper coaches, require him to ensure that doors of the coach are kept latched when the train is on the move and open them for passengers as and when required for entraining/detraining of authorized passengers. As per clause 15 of the aforesaid circular, he is required to ensure that the end-doors of the vestibule trains are kept locked between 22.00 and 0600 hrs. to prevent outsiders entering the coach. The vestibule coach has four main entrance doors, two each on either side and two vestibule doors, one each on either side. The vestibule door enables movement from one coach to another coach, whereas the main entrance doors are meant for ingress and egress of the passengers when the train is stationed at the platform. In view of the aforesaid instructions, the TTE was required to keep vestibule doors locked from 10 P.M. to 6 A.M. and main entrance doors latched when the train was on the move. The main entrance doors were to be opened by him for allowing ingress/egress of the passengers on the train reaching a platform.

We find from a perusal of the reply filed by the petitioner before the District Forum that despite the complainants having specifically alleged in para 15 of the complaint that the door of the coach were not kept latched while the train was on the move and the end-doors of vestibules were not kept locked between 10 P.M. to 6 A.M. , the petitioner did not specifically deny the said allegations and did not expressly claim that the coach doors were kept latched and end-doors of the vestibules were locked between 10 P.M. to 6 A.M. Thus the reply filed by the petitioner contains an implied admission of the petitioner Indian Railways that neither the vestibules doors were kept locked from 10 P.M. to 6 A.M. nor the main doors meant for ingress and egress of the passengers were kept latched when the train was on the move. The petitioner has filed affidavit of the concerned TTE Shri Maryad Yadav by way of evidence. Even in his affidavit, he did not claim that the doors of the coach were kept latched when the train was on the move and end-doors of the vestibules were locked between 10 P.M. to 6 A.M. The TTE of the coach therefore, was negligent in performance of his duties by not keeping the doors of the coach latched when the train was on the move and by not keeping the vestibules doors of the coach locked from 10 P.M. to 6 A.M.

The next question, which arises for our consideration in this regard is whether the theft of the suitcases of the complainant occurred only because the doors of the coach were not kept latched when the train was on the move and / or the vestibule doors were not locked from 10 P.M. to 6 A.M. or the said theft could have taken place even if there was no negligence on the part of the TTE in discharge of the duties assigned to him under the Circular dated 11.9.1998. According to the complainants, they boarded the train at Sambalpur. They checked their suitcases before going to sleep at night and at that time, the aforesaid suitcases were firmly secured by using a chain for this purpose but when they got up at Sagar station in the morning, the suitcases were found stolen. This would mean that the theft of the suitcases occurred during night though the time of the theft cannot be ascertained. It is not known whether the train stopped and any passenger got down from the train between Sambalpur and Sagar or not. Similarly, it is not known whether any passengers boarded the train between Sambalpur and Sagar or not. If the train had stopped at one or more stations after leaving Sambalpur but before reaching Sagar some co-passenger of the complainants may possibly have stolen their suitcases and got down at that station taking the stolen suitcases with him. Even if the train had not stopped at any station before reaching Sagar, a co-passenger of the complainants may have got down at Sagar Station along with stolen suitcases before the theft could be noticed by the complainants. All this could be possible because the doors of the coach which are also called main entrance doors were not required to be locked but were only to be latched from inside when the train was on the move. However, since the vestibule doors were not locked during night, it is also quite possible that some of co-passengers, travelling in the same coach was able to move from the coach in which the complainants were travelling to another coach along with stolen suit cases. Had the vestibule doors been locked during night, it could have been firmly said that the person who committed the theft could not have moved from the compartment in which the theft took place to another compartment through the vestibule door. Yet another possibility in this regard is that since the doors of the coach i.e. main entrance doors were not kept latched during night, some unauthorized person entered the coach in which the complainants were travelling, committed theft of their suitcases and then left the coach either through a main entrance door when the train stopped at a railway station or he was able to move to another compartment through the vestibule doors which had not been locked. Thus, though it cannot be said with certainty that had the TTE discharge the duties assigned to him under the Circular dated 11.9.1998, the suitcases of the complainants could not have been stolen, there is a reasonable possibility of the theft having become possible on account of the main entrance doors of the coach having not been latched when the train was on the move and the vestibule doors having not been locked from 10 P.M. to 6 A.M.

The learned counsel for the petitioners has referred to Sonic Surgical Vs. National Insurance Co. Ltd., IV (2009) CPJ 40 (SC), Hemant Vasant Bhavsar & Anr. Vs. Incharge Central Railway Booking Office Maharashtra & Ors., FA/A/10/144, Union of India Vs. Vikas Laxman Sangwai & Ors. FA/1012/2007, Union of India Vs. Smt. Niva Agrawal, RP/85/2013 and Shri Abhishankar Adhikary Vs. The Divisional Manager, Howrah & Anr., RP/95/2005.

Considering all the facts and circumstances of the case, we are of the view that though some compensation should be paid to the complainants for the negligence on the part of the TTE, who failed to latch the main entrance doors of the coach from inside and lock the vestibule doors during night, it will not be fair and reasonable to direct the petitioner to fully reimburse the loss sustained by the complainants. Taking into account all the facts and circumstances of the case, we direct the petitioner to pay Rs.25,000/- as compensation to Respondent No.1 and Rs.15,000/- as compensation to Respondent No.2 The complainants will also be entitled to the cost of litigation quantified by the State commission as Rs.5,000/-. The revision petition stands disposed of accordingly.