Union of India vs Shruti Dev

BY its order dated 25.8.2008, the Hon''ble Supreme Court of India set aside this Commission''s order dated 5.4.2006, by which notice was issued in a Revision Petition filed by the Petition (Union of India and Others) limited to the award of interest and quantum of compensation. The Apex Court directed that after service of notice, the revision petition shall be disposed of by the National Commission on merits, in accordance with the law after taking into consideration all the points raised therein. This revision petition has come up before us in compliance with the above order.

THE Respondent in this case is Shri Vishal Kumar Dev who was the original complainant before the District Forum, wherein he filed a complaint alleging deficiency of service against the Union of India through General Manager, South Eastern Railway, Kolkata and Ors. (Petitioner in this case). The version of the Respondent is that he along with his wife (Respondent No. 2) and his one year old daughter (Respondent No. 3) had visited his hometown Dehradun to celebrate the first birthday of his daughter. In that function, the father of the Respondent after withdrawing Rs. 50,000 from his GPF account had gifted this amount to his grand daughter for investment in a 21 year policy to be utilized later for her higher education. For their return journey, the Respondent No. 1, booked seats in the Rajdhani Express Train No. 2422 on 24.6.2002 from New Delhi to Balasore where he was posted as District Magistrate/Collector. Respondents were carrying cash worth Rs. 50,000 and jewellery worth Rs. 76,150 which was kept in a black bag in a suitcase. When the train left Kanpur Station, Respondent No. 1 before going to sleep, put his wallet containing Rs. 1,500 and mobile phone in the said black bag and kept the bag in the innermost chamber of a suitcase and put the suitcase under the lower berth. On waking up at 7.00 a.m., next morning Respondents were shocked to find that the black bag was missing. Despite searching the entire cabin, the bag could not be located. Respondent No. 1, therefore, went in search of the Travelling Ticket Examiner (TTE) and other railway personnel. On enquiry, he was told that the TTE was sitting in the 1st class AC coach. He, therefore, went to TTE to lodge a complaint about the theft. The TTE''s response was quite indifferent and he did not come forward to take immediate action, for example, ordering a search of the railway staff on duty in the train, who could have accessed and stolen the valuables. Ultimately, the Train Superintendent asked the Respondent to fill up a form regarding the theft and an FIR was lodged in the next station i.e. Howrah. The Respondent further stated that he had found the coach attendant was sleeping in a passenger''s berth at 10.30 p.m. and no railway personnel including RPF were present to attend to the passengers and to ensure their security in the night. Respondent No. 1 lodged a formal complaint in the complaint book of the Train Supervisor. Since Respondents sustained loss of property worth Rs. 1,46,000 and were subjected to humiliation and harassment in running from one end of the train to the other, trying to plead with the Railway staff to take suitable urgent action in respect of their complaint, they were constrained to file a complaint before the District Forum. In support of their case, Respondents also filed before the District Forum various documents including a copy of the FIR filed by them, affidavit of Respondent Nos. 1 and 2 as well as the affidavit of the father of the Respondent No. 1 as also one by Mr. Partha Pratim Patnaik who was a co-passenger in the Rajdhani Express.

PETITIONER in their version have denied that there was any deficiency in service. According to the Petitioner, the matter pertaining to security of goods in trains is governed by Section 100 of the Railway, Act 1989 which reads as follows: "Responsibilities as carrier of luggage-A railway administration shall not be responsible for the loss, destruction, damage, deterioration or non-delivery of any luggage unless railway servant has booked the luggage and given a receipt thereof, 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 negligence or misconduct on its part or on the part of any its servant."

The Petitioner has also pointed out that following are the duties of the Coach attendant and the TTE respectively. attendant Coach attendant: He shall prevent entry of unauthorized person in the coach, check passengers ticket in the absence of conductor/TTE, lock compartments securely when the train is in motion and the vestibules doors at night. He shall check the travel authority of the passengers in the coach, guide them to their berths/seats and also prevent unauthorized persons from travelling in the coach. Pay prompt attention to all complaints from passengers in regard to non-working of lights, fans, taps, etc., and take remedial action to get them rectified, ensure cleanliness of coach and also ensure the doors of the coaches are kept closed while in run. The doors of the vestibules are to be kept closed between 2200 hours and 0600 hours.

A collective reading of the above provisions/ instructions of the Railways Act clearly proves that in the instant case railway staff cannot be held responsible for the theft. In the first place, the Respondent had not booked the valuables with the Railways and was personally carrying it. Secondly, as per the duties and responsibilities of the TTE and the Coach Attendant quoted above, they would have been guilty of negligence or misconduct if they had failed to check the entry of any unauthorized persons in the compartment. In the instant case the Respondents have not been able to show any evidence or proof of the presence of any unauthorized person(s) in the compartment. In fact, this has not been alleged in the written complaint of the Respondent No. 1 or in the FIR lodged in respect of the theft or in the affidavit before the District Forum. The Respondents contention that the Railway staff was lukewarm and indifferent is only their perception and is not borne out by actual facts, because, immediately on hearing about the theft, Petitioner actively assisted the Respondent in the search, recorded the complaint and arranged to lodge an FIR at the next station. Respondents'' allegation that the TTE was seen by them only once, is also no proof of negligence because, normally in a reserved train like the Rajdhani Express checking is done by the TTE when the train starts at the time of entry and at the originating station. In any case passengers also do not like to be rechecked particularly at night since it causes disturbance to them. In the present case the Respondents occupied a bay of four berths and there were no other passengers in the said bay. Since they were personally carrying the valuables with them they should have at least taken reasonable precautions like locking their suitcase which they did not do. Petitioner drew attention to the IRCA Coaching Tariff Rules which states that "all articles taken in their carriage are carried at the entire risk of the owner".

THE District Forum after hearing both the parties partly allowed the complaint regarding deficiency of service and directed the Petitioner/OPs to pay jointly and severally Rs. 1,46,000 towards loss of cash and jewellery, Rs. 50,000 as compensation to each complainant and a cost of Rs. 5,000 to be paid to the complainants/Respondents within 60 days from the date of receipt of copy of this order.

AGGRIEVED by the order of the District Forum, Petitioner went in appeal before the State Commission. The State Commission after considering the evidence dismissed the appeal. The relevant portion of the State Commission''s order reads as follows: "The Respondents specific case is that the coach attendant was comfortably sleeping in the night and did not take any steps to prevent entry of unauthorized persons. The TTE was found sitting in the first class compartment. Respondent No. 2 in her affidavit stated that after the train left New Delhi, the TTE came only once to check the tickets. Thereafter he was not seen. She also stated that on getting up early morning at 7.00 a.m. they were found that their luggage was disturbed and the suitcase in which they had kept their daughter''s gifts, cash of Rs. 50,000 and jewellery as well as husband''s mobile phone and wallet was found missing. The above indicates that persons who were entrusted with the job of ensuring safety of the passengers had committed dereliction of their duties and, therefore, the railway cannot absolve itself to compensate the loss sustained by the Respondents on account of theft which was committed in course of their journey in the train. The plea of the appellants that the Respondents have not established the case of theft of cash and jewellery has to be rejected. As indicated above, the Respondent No. 1 is an IAS officer, who, at the material time, was the District Collector. He is a responsible citizen of the country and is not expected to make false claim. The Respondents have adducted adequate material to show that they were travelling with cash of Rs. 51,500 and jewellery worth Rs. 76,150............ ............In the course of journey, if monetary loss occurs not on account of the negligence of the passenger, but on account of the negligence of the Railway authorities, his distress can well be imagined. The Respondent Nos. 1 and 2 must have gone through mental strain throughout their journey. Therefore, for their mental agony and strain, they are entitled to get compensation...... In the complaint, the following are the main items, which are stolen: Cash Rs. 51,500 Jewellery Rs. 76,150 2 Diamond Rings Rs. 25,000 5 Gold Rings (10 gms) Rs. 5,000 3 Gold earrings (7 gms) Rs. 3,000 4 Gold Chains (40 gms) Rs. 22,000 1 Gold necklace and earring set (25 gms) Rs. 13,750 2 Gold Kadas (11 gms) Rs. 6,050 1 Samsung R210 Mobile Phone with Rs. 7,200 Cash Cards of Airtel, Delhi and Reliance, Orissa Rs. 3,100 1 SBI Credit Card No. 4006 6610 1673 7293 Rs. 550 1 Casio Digital Diary (32 KB) Rs. 1,500 Rs. 1,40,000 The above amount has been granted by the District Forum and we do not find any valid ground to differ from the above findings."

THE State Commission slightly modified the order of the District Forum, as follows: (i) The appellants are jointly and severally liable to pay a sum of Rs. 1,40,000 towards loss of cash, jewellery and other articles to the Respondents. It shall carry interest at the rate of 9% per annum from the date of theft (25.6.2002). We direct the appellants to pay the principal amount of Rs. 1,10,000 together with interest thereon @ 9% per annum from 25.6.2002 by the 30th of December 2005 failing which interest shall be chargeable @ 18% per annum. (ii) The Respondent Nos. 1 and 2 are each entitled to compensation of Rs. 50,000. If the amount is not paid within time frame indicated above, it shall carry interest @ 18% from the date of this order. (iii) The order of cost of Rs. 5,000 awarded by the District Forum is confirmed.

WE have heard learned Counsels for both the parties at length and have carefully gone through the evidence submitted by both the parties before the lower Fora. The main issue is whether there was any deficiency of service on the part of the Petitioner, which resulted in the loss of the Respondent''s valuables in the railway compartment and later impeded the detection of who committed the theft. Respondents have made allegations of deficiency in service primarily on the following facts: (i) Absence of TTE in the compartment after initial checking of the tickets, (ii) Coach attendant was sleeping at 10.30 p.m. in a passenger''s seat; (iii) No presence of railway police or other staff in the compartment at night; and (iv) Unregulated movement of pantry staff who also did not wear identity badges. (v) Lukewarm and inefficient attitude of staff following the theft.

PETITIONER while denying these contentions have essentially highlighted the following facts in their defence: (i) Charter of duties and responsibilities of the railway staff is inter alia to ensure that no unauthorized person enters the compartment and there is absolutely no evidence in this case that any unauthorized person had entered the compartment; and (ii) Petitioner cannot be held liable if the luggage is not booked by the passenger (in this case the Respondents) and is carried by them at their own risk.

IN the instant case, we agree with the Petitioner that there was no evidence that any unauthorized person entered the compartment, more so, when the Respondents are not able to show any proof of such presence. In fact they have not made any such specific allegations in the written complaint/ affidavit. In the light of this we agree that there was no dereliction of duty or deficiency of service on the part of the railway staff.

FURTHER, the contention of the Petitioner that the TTE in a reserved train does not recheck the same tickets, and, therefore, the Respondents saw him only once at the time of his checking their tickets is also a plausible explanation and is not indicative of deficiency in service.

REGARDING the general behaviour of the railway supervisory staff in dealing with the complaint of Respondent, it is difficult to pinpoint any specific deficiency, because, admittedly, they assisted in the search, noted the Respondent''s complaint and facilitated in recording of the FIR at the next station.

WHILE we agree that the Respondents did not take due precautions and carried the valuables in their possession at their own risk, we do not accept the Petitioner''s contention that the alleged theft did not take place and, therefore, the loss of valuables was itself suspect. Due credence must rightly be given to the statement of the Respondent who is an IAS officer holding a position of responsibility and accountability. Because there is no evidence of any unauthorized person having entered, does not necessarily imply that no theft took place by an "insider", i.e., either a Railway staff or even a co-passenger.

WHILE we have not been able to conclude that there was any deficiency of service on the part of the Petitioner, the perception of the Respondents that the Petitioner was indifferent and not particularly vigilant in dealing with them at a time of distress must be taken note of and redressed. It is not enough on the part of the Railway staff just to carry out their responsibilities/duties in a mechanical manner. In a major public service organization like the Railways, its personnel are expected to be courteous, efficient, vigilant and proactive in their attitude while dealing with passengers, especially those who seek their help in distress. Perhaps this was lacking in the instant case. No doubt, as a result, the Respondents did face mental agony and frustration.

TAKING all the above facts in their totality we conclude that while the theft occurred as contended by the Respondents the responsibility for this cannot be placed on the Petitioner on the grounds of dereliction of duty/ deficiency in service. Respondents must take the responsibility for not being careful while carrying the valuables by not even taking reasonable precautions like locking the suitcase.

TO sum up, (i) we set aside the order of the State Commission directing the Petitioner to pay Respondents a sum of Rs. 1,40,000 towards loss of cash, jewellery and other articles as well as the principal amount of Rs. 1,10,000; (ii) for mental agony and harassment undergone by Respondent Nos. 1 and 2, we direct the Petitioner to pay Rs. 50,000 to them within a period of two months failing which it shall carry interest @ 12% per annum from the date of this order; and (iii) The order of cost of Rs. 5,000 awarded by the District Forum is confirmed.

RELIEFS given to Respondents in part (ii) and (iii) of the above order may not be treated as a precedent for future reference and is awarded because of circumstances specific to this case. Ordered accordingly. R.P. partly allowed.