CHIEF COMMERCIAL MANAGER Vs. ABHISHANKAR ADHIKARY

JUDGEMENT

(1.) 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.

(2.) 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 Sec.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.

(3.) 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 Sec.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.