ORDER
S.N. Kapoor, J. (Presiding Member)
1. Heard the learned Counsel on application for condonation of delay as well as on merits.
2. Delay of 35 days is sought to be condoned on the ground that due to that administrative exigency and also to get approval from the Headquarter Authorities at Calcutta, Howrah and, thereafter, to contact its Advocate at New Delhi for preparation of Memorandum of Revision and in getting the revision legally vetted at Calcutta/Howrah time was spent. Besides, in the month of December and January there were several holidays. Thus, delay occurred in getting the approval for filing the present revision. Secondly, the delay was not wilful laches or negligence on the part of the petitioners in not filing the revision in time.
3. Though we are not very much satisfied the way the delay is sought to be explained without indicating movement of file yet seeing the delay of just 35 days we would not like to debar the petitioner on this technical ground to pursue this Revision Petition. Accordingly, delay of 35 days is condoned.
4. We have also heard on merits. The complainant-respondent was travelling on 4th September, 2001 by Delhi-Kalka Mail an AC-3 Tier Coach. At about 5.45 a.m. he was the only passenger in his coupe, when he left his berth for brushing his teeth and washing his mouth at the wash-basin provided in the coach. But, when he came back to his birth he found that his VIP Trolley Suitcase, containing one camera, one cell phone, Rs. 5,500/- in cash and some other belongings, was missing. He drew the attention of the coach attendant who took it in a very casual manner. He lodges a complaint with GRPS, Howrah. According to the complainant, the loss of the suitcase was caused by the entry of unauthorized persons into the coach. As such the coach attendant and other employees of the railway-opposite party and its employees were deficient in the matter of rendering proper services to the complainant.
5. The opposite party contested the case and alleged that the loss was due to negligence of the complainant and the Railway was not responsible. The District Forum directed the opposite party to pay a sum of Rs. 40,000/- towards loss of the luggage and a sum of Rs. 50,000/- towards mental agonies, worries and harassment and a sum of Rs. 1,000/- as costs with 8% interest p.a. in case the payment was not made within 30 days.
6. An appeal was filed before the State Commission. The State Commission while allowing the appeal partly, directed the petitioner to pay compensation of Rs. 10,000/- and a cost of Rs. 1,0007-.
7. Feeling still aggrieved, present petition has been filed by the petitioner.
8. We have heard the learned Counsel for the petitioner at length.
It may be mentioned that every railway passenger is a consumer in terms of Section 3 of the Consumer Protection Act (in short the ‘Act’)- Jurisdiction of the Consumer Fora is not ousted in Such matters for the loss of luggage is not covered by Section 13 of the Railway Claims Tribunal Act, 1987. Whether bar under Section 15 of the Railway Claims Tribunal Act could be imposed on the jurisdiction of this Forum, is required to be seen. Sections 13 and 15 of the Railway Claims Tribunal Act, 1987 read as under:
“Section 13. Jurisdiction, powers and authority of Claims Tribunal-(1) The Claims Tribunal shall exercise on and from the appointed day all such jurisdiction, powers and authority as were exercisable immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of the Railways Act,-
(a) relating to the responsibility of the railway administration as carriers under Chapter VII of the Railways Act in respect of claims for-
(i) compensation for loss, destruction, damages, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;
(ii) compensation payable under Section 82A of the Railways Act or the rules made thereunder; and
(b) in respect of the claims for refund of fares or part thereof for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.
(1A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Section 124A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the railway administration under Section 124A of the said Act or the rules made thereunder.
(2) The provisions of the Railways Act, 1989 (24 of 1989) and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining any claims by the Claims Tribunal under this Act.
Section 15. Ear of jurisdiction-On and from the appointed day, no Court or other authority shall have, or be entitled to exercise any jurisdiction, powers or authority in relation to the matters referred to in Sub-sections (1) and (1A) of Section 13.”
9. Insofar as Chapter VII of the Railways Act is concerned, the claim is confined to Clauses (a) and (b) of Section 13. In the present matter, compensation for loss, destruction, damages and non-delivery of goods entrusted to a railway employee or railway administration for carriage by railway is not being claimed nor any compensation payable under Section 82A is being sought. The claim also does not relate to refund of fares or freight or part thereof. As regards Sub-section (1A) of Section 13 the claim has not been filed under Section 124(A) of the Railways Act and the rules made thereunder on account of untoward incidence as defined in Clause (c) of Section 123 of the Act. It also does not relate to any accident as mentioned in Section 123(a) and defined in Section 124 on account of accident. These provisions, thus, do not cover the matter in question.
10. As regards the liability and responsibility of the railways Section 100 of Railways Act reads as under:
Section 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, 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, deterioration was due to the negligence or misconduct on its part or on the part of any of its servants.
(Emphasis supplied)
11. Now coming to the facts of this matter. Let us first appreciate the duties of a coach attendant as noted in the Ambreesh K. Kagzi, Bombay v. The General Manager, Western Railway, Bombay (R.P. No. 3121 of 2003):
(i) Ensuring that all internal fittings of the coach are in working order.
(ii) Assisting the conductor in accommodating passengers boarding en route.
(iii) Preventing entry of unauthorized persons in the coach.
(iv) Helping ticket checking staff in checking passenger’s tickets.
(v) Assisting passengers in arranging food.
(vi) Locking the compartment securely when the train is in motion and the vestibule doors at night.
(vii) Attending to minor electrical/ mechanical faults and calling in maintenance staff to attend to major repairs
(viii) Arranging supply of Bed rolls.
(ix) Ensuring that bathrooms/compartments are cleaned regularly.
(x) To conduct check against carrying of inflammable articles in the coaches provided. If such goods are defected he shall bring it to the notice of the ticket checking staff on the train.
12. The TT attached to the coach was supposed to be very vigilant about entry of any one other than the reserved ticket holders. He is required to prevent even a relative of the passenger to enter into the coach. He is supposed to ensure that unscrupulous persons like hawkers, beggars, etc. do not enter into the coach. He is supposed to ensure that coach attendant follows instructions to prevent entry of the outsiders into the coach, by locking the doors of the compartment while the train is in motion and vestibule doors at night.
13. To say that it was not the duty of the coach attendant and the concerned TTE to ensure that the coach attendant follows the instructions to prevent entry of hawkers, beggars, and outsiders not entitled to travel in the compartment and the railway was not liable for the theft committed from such a reserved compartment having a coach attendant, would defeat the very purpose of providing the facility of coach attendant in a coach. Then, the passenger would have berth to sleep but they would not be able to sleep for railway employees and railway administration would certainly like to shirk their responsibility on account of theft from the reserved compartment. The lame excuse that some other passengers might have taken away while leaving the train and the coach attendant could not check, is just neither convincing nor appealing, if coach attendant would remain vigilant and take care of the passengers at night. A passenger of AC-II tier is not supposed to carry his luggage to the wash-basin if he goes to brush his teeth or to bath-room in case of need. To serve this very purpose, particularly, between 22 hours and 6.00 hours TTE is supposed to ensure that no person other than the reserved ticket holder enters in the coach. If no outsider was allowed, then either the coach attendant or other staff of railway himself committed theft by removing VIP Trolley suitcase of the complainant or connived in its theft. Otherwise, theft could not have taken place between 5.45 a.m. and 5.50 a.m., particularly, when there was no other passenger in the coupe. The railway have not produced any evidence if any passenger could have alighted between 5.45 a.m. and 5.50 a.m. The submission that complainant did not lock the coupe before going to wash-basin was rightly rejected for coupe could be locked only from inside and not from outside. Accordingly, the railway officials, viz. TTE and coach attendant were negligent in rendering services on behalf of the railway and as such the petitioner was rightly held deficient in services.
14. As regards compensation, the complainant had filed affidavit in support of his claim for a sum of Rs. 50,000/-. The State Commission virtually took a slightly conservative view while holding that the complainant had not produced any independent evidence for the purpose of assessing the damages and compensation, etc. But, in this regard one has to take note that the common men do not preserve the bills of each and every item to pile up unnecessary papers expecting that some day a theft may take place and he would be required to produce those documents. In ordinary course his affidavit should be accepted and acted upon keeping some margin of exaggeration of claims. In such a situation, one has also to keep in mind probable depreciated value of the articles lost. In this matter instead of Rs. 40,000/-, the State Commission has just awarded Rs. 10,000/- for the stolen suitcase and contents thereof as well as for harassment and mental agony with cost of Rs. 1,000/-. We feel that it not on higher side.
15. In view of the aforesaid discussion, it is not possible to say that railways were not deficient in rendering services. Accordingly, we do not find any force in this revision petition and the same is dismissed.