S. G. DESHMUKH, J. ( 1 ) THESE two appeals are filed by the original complainant and the original opponents respectively against the judgment and order dated 22-3-2001, passed by the District Consumer Forum, Aurangabad in complaint No. 54/1999. ( 2 ) THE appellant original complainant's in appeal No. 620/2001 case before the Forum is that, he along with his wife and daughter had gone to Mumbai and he was returning from Mumbai to Aurangabad in the night of 21-1-1997. It is contended that, he had reserved 3 berth tickets Bearing Nos. 57, 58 and 59 in Bogy No. S-4. It is contended that, one V. I. P. bag containing Ornaments and cash was tied by means of chain with the lower berth rod. It is contended that, when the train had come to Nasik Road station, wife of the complainant found that, ticket checker had allowed one person to enter in the compartment. The said person was sleeping in the passage between lower berths. It is contended that, when the train arrived at aurangabad station, the complainant and his wife found that, the V. I. P. bag which was tied with the lower berth road by chain was lying un-tied. It is contended that, the complainant and his daughter went to the house and opened the suitcase and found that, gold ornaments and cash, total amounting to Rs. 1,31, 000/- were stolen away from the bag. It is contended that, the complainant had narrated the incident orally to the police out post at Aurangabad, which was recorded by the police. The same is brought on record, which was registered as 3/1997 by the police. It is contended that, the complainant had submitted written complaint before the police Sub-Inspector of Railway on 25-1 -1997 and also forwarded an application to the railway Police higher authorities in this regard, however after investigation, the complainant was informed by the Commissioner of Police (Railway) on 27-6-1997 that, the offender is not detected and the investigation is stopped by keeping matter pending. The complainant issued notice and demanded the amount of loss sustained by him and then approached the Forum. ( 3 ) THE complaint was resisted by the original opponents. It is contended that, the complaint is barred by limitation. It is denied that, the ticket checker allowed the unknown passenger in the compartment. The complainant issued notice and demanded the amount of loss sustained by him and then approached the Forum. ( 3 ) THE complaint was resisted by the original opponents. It is contended that, the complaint is barred by limitation. It is denied that, the ticket checker allowed the unknown passenger in the compartment. It is also denied that, unknown passenger was sleeping between two panels of the berth. It is contended that, complaint was filed by the complainant before the Railway Inspector on 25-1-1997 i. e. after 3 days. It is further contended that, under section 100 of the Indian Railways Act, the railway administration is not responsible for the loss, destruction and damage to the luggage of the person. It is also denied that, theft has taken place. The Original Opponent No. 3 who was ticket checker in the bogy in question has also filed say and denied all contentions. ( 4 ) THE Forum below after going through the papers and hearing the parties, held that, the opponents can not be held responsible for the theft of the luggage. The Forum held that, allowing passenger without ticket in the sleeper coach by railway conductor amounts to deficiency in service and thus the Forum partly allowed the complaint and directed the respondents Nos. 1 and 3 to pay an amount of Rs. 5,000/- to the complainant towards compensation for the deficiency in service within 6 weeks, failing which amount will carry interest @ 12 % p. a. from the date of the order. The Forum also directed the original opponents Nos. 1 and 3 to pay an amount of Rs. 500/- towards cost of the complaint. ( 5 ) BEING aggrieved by the said judgment and Order, the original complainant and original opponents came in appeal respectively as mentioned above. ( 6 ) THE notices were issued to the appellants as well as respondents in both the appeals. The learned Counsel Shri Jayant chitnis appeared on behalf of the original complainant and learned Counsel Shri manish Navandar appeared on behalf of the railway. We heard both the Counsels at sufficient length. ( 7 ) THE appellants in Appeal No. 832/2001 filed an application for condonation of delay. The delay caused in filing appeal is of 23 days. The delay does not appear to be intentional or purposeful, same has been satisfactorily explained. Delay is condoned. The Misc. We heard both the Counsels at sufficient length. ( 7 ) THE appellants in Appeal No. 832/2001 filed an application for condonation of delay. The delay caused in filing appeal is of 23 days. The delay does not appear to be intentional or purposeful, same has been satisfactorily explained. Delay is condoned. The Misc. Application No. 934/2001 is allowed. ( 8 ) THE learned Counsel Shri Chitnis submitted that, the theft and loss of ornaments have taken place from the reserved berth. He submitted that, unauthorized person had entered in the bogy in question and was found sleeping in passage of two berth. He submitted that, there is deficiency in service on the part of the Railway by not protecting the passengers with their property in reserved compartment. The learned Counsel submitted that, the Forum below ought to have granted the amount of loss sustained by the complainant because of the theft, which has taken place on account of deficiency in service on the pat of the railway. The learned counsel relied on (Chief Commercial Manager, southern Railway and others Vs. Ms. Subhashini L. Katkar), 2002 (3) C. P. R. 159, state Consumer Redressal Commission, karnataka. ( 9 ) ON the other hand, the learned Counsel Shri Manish Navandar for the Railway submitted that, no unknown passenger was allowed to sleep in the passage by the T. C. He submitted that, there are railway security guards and railway police, who are always alert about the security and safety of the passengers. They do not allow the passengers who are not having reservation ticket to travel in the reserved bogy. The learned counsel also submitted that, the complaint of theft has been lodged on 25-1-1997, whereas the incident in question has taken place in between 21st- 22nd night. According to him, Railway administration is not liable to take care of the unbooked luggage carried by the passengers along with them. The learned Counsel relied on section 100 of the indian Railways Act. ( 10 ) WE perused the papers on record and gave our anxious thoughts to the arguments advanced by both the counsels and citation relied by the complainant's Counsel. On perusal of papers, it reveals that, the complainant along with his wife and daughter was coming to Aurangabad from Mumbai in the night of 21-1-1997. It has come on record that, complainant has reserved 3 berth tickets Bearing Nos. On perusal of papers, it reveals that, the complainant along with his wife and daughter was coming to Aurangabad from Mumbai in the night of 21-1-1997. It has come on record that, complainant has reserved 3 berth tickets Bearing Nos. 57, 58 and 59 in Bogy No. S-4. It has also come on record that, bag containing ornaments and cash worth Rs. 1,31, 000 / - was tied with the rod of the lower berth by chain and lock. It has also come on the record that, one unknown passenger was allowed to enter the reserved sleeper coach. Not only that, but it has also come on record that, said unknown passenger was sleeping in the passage of lower berth. It has also come on record that, when the train had arrived at Aurangabad, the complainant and his wife found that, bag which was tied with the chain was found lying unchained. It has also come on record that, when the complainant and his wife went to their house, they found that, the ornaments and cash amount kept in the bag have been stolen. It has also come on record that, complainant had gone to police outpost at Aurangabad and lodged oral complaint, which was recorded by the police. Copy of the said oral complaint dated 22-1-1997 had been brought on record by the complainant before the Forum. It has also come on record that, there after complainant had submitted written complaint before the Police Sub-Inspector of Railway on 25-1-1997. It has also come on record that, complainant was informed by the Commissioner of police (Railway) on 27-6-1997 that, after investigation offender was not detected, investigation was stopped by keeping matter pending. The Forum below has rightly held that, complaint filed by the complainant is within limitation. The limitation starts from 27-6-1997, when he was informed that, the investigation has been stopped by the Railway commissioner. ( 11 ) IT reveals from the papers that, the railway did not challenge that, the ornaments and cash had been kept in the bag in question. The Railway has mentioned in their say that, they had no knowledge that, at the time of travelling all these things were kept in the V. I. P. bag and the same was tied with the lower birth. The Railway has mentioned in their say that, they had no knowledge that, at the time of travelling all these things were kept in the V. I. P. bag and the same was tied with the lower birth. Thus the version of the complainant that, the cash amount and the ornaments were kept in the bag as mentioned by him in the complaint, which has been supported by his Affidavit has gone unchallenged. The arguments of the learned Counsel of the Railway that, no evidence has been adduced by the complainant to prove that the ornaments and cash were kept in the alleged bag can not be accepted, as the Railway has not challenged this fact in their say. The railway simply stated that, they have no knowledge about it. We have mentioned that, immediately after coming to know about the theft, the complainant had been to the police outpost at Aurangabad and lodged oral complaint, which was reduced in to writing, which is brought on record dated 22-1 -1997. Not only that, but written complaint has been filed by the complainant with the Railway police on 25-1 -1997 and he was informed by the Police Commissioner on 27-6-1997. The forum below has rightly observed that, theft of the ornaments and cash have been taken place, but the Forum held that, the railway can not be held responsible for the theft of the luggage. ( 12 ) SECTION 100 of the Indian Railways Act reads as under : "section. 100- Responsibility of Railway 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 thereof and in the case of luggage which is carried by the passengers 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 servant. " On perusal of section, it shows that, railway is not responsible for the loss only when it is proved that, the loss is caused due to negligence on the part of the passenger. In the instant case, it has come on record that, bag in question has been tied by means chain with the lower birth rod. " On perusal of section, it shows that, railway is not responsible for the loss only when it is proved that, the loss is caused due to negligence on the part of the passenger. In the instant case, it has come on record that, bag in question has been tied by means chain with the lower birth rod. Thus it can not be said that, the complainant was negligent while carrying luggage in question. ( 13 ) THE responsibility of TTE attached to second Class coach has been considered by the Hon'ble National Commission in case of (Union of India Vs. Sanjiv Dilsukhrai Dave and another), (2003)1 C. P. J. 72 (N. C. ). The duty of TTE for sleeper coach reads as Under: "4, he shall check the tickets of the passengers in the coach, guide them to their berthssseat and prevent unauthorized persons from the coach. He shall in particular ensure that persons holding platform tickets, who came to see off or receive passengers do not enter the coach ( 14 ) HE shall ensure that the doors of the coach are kept latched when the train is on the move and open them up for passengers as and when required. 16. He shall ensure that the end doors of vestibuled trains are kept locked between 22. 00 and 6. 00 hrs. to prevent outsiders entering the coach. 17. He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorized persons do not enter the coach. " 14. It has come on the record that, unauthorized person had entered in the second class sleeper coach. It has also come on record that, the respondent No. 3 was present in coach at the relevant time. The said passenger was allowed to sleep in the passage of lower berth. The theft in the bag had taken place in the moving train. The TTE and other security staff failed to perform their duty to check entry of unauthorized person in to coach by latching vestibule doors at night, certainly it amounts to deficiency in service on the part of the Railway. ( 15 ) IN (Southern Eastern Railway Vs. Ku. Bharati Arora), S. C. and National Commission Consumer Law cases (1996-2005) page 346, the Hon'ble National Commission held that, the Railway is responsible for deficiency in service by not protecting the property in the reserved compartment. ( 15 ) IN (Southern Eastern Railway Vs. Ku. Bharati Arora), S. C. and National Commission Consumer Law cases (1996-2005) page 346, the Hon'ble National Commission held that, the Railway is responsible for deficiency in service by not protecting the property in the reserved compartment. In the present case, the complainant has sustained loss to the tune of Rs. 1,31,000/- because of deficiency in service of the Railway. The Forum below granted compensation to the tune of rs. 5,000/-, which appears to be very meager. In (Sumatidevi M. Dhanwatay Vs. Union of India and others), 2004 (Supp. 2)Bom. C. R. (S. C.)639 : 2004 DGLS 231 : J. T. 2004 (4) S. C. 537 : 2004 N. C. J. 269 (S. C.), the Hon'ble Apex Court allowed the compensation of the luggage worth Rs. 1,11, 756/-including gold, pearl, silver and diamond jewellery and other valuable goods looted by unauthorized persons entry in the railway compartment. It is held that, 'section 2 (1) (c)- Complaint - Railways Act - Section 124-A- Looting in Railway Compartment by unauthorized persons - Complaint lies to consumer Forum and failure to take precaution and preventing measures causing loss to bonafide passengers amounts to deficiency on the part of the Railway. ' ( 16 ) IN the instant case, as we discussed that, the ornaments and the cash worth Rs. 1,31,000/- kept in the bag have been stolen by the unauthorized person, who was allowed to enter in the second class reserved compartment. The Forum below erred in granting compensation of Rs. 5,000/- only. Infact the complainant had sustained the loss of Rs. 1, 31,000/- for which he had filed the complaint to the police station and he was informed by the police that, the offenders is not detected and the investigation is stopped. In the Circumstances as per ratio in Sumatidevi M. Dhanwatay's case (supra), the complainant is entitled for the loss of worth Rs. 1,31,000/ -. Accordingly we modify the order of the Forum. We pass the following order : ORDER 1. Appeal No. 620/2001 is allowed. 2. Respondent Nos. 1, 2 and 3 in Appeal No. 620/2001 (original opponents) are directed to pay an amount of Rs. 1,31,000/ -. Accordingly we modify the order of the Forum. We pass the following order : ORDER 1. Appeal No. 620/2001 is allowed. 2. Respondent Nos. 1, 2 and 3 in Appeal No. 620/2001 (original opponents) are directed to pay an amount of Rs. 1,31,000/- jointly and severally to the complainant towards compensation for the deficiency in service within 6 weeks, failing which, it will carry interest@ 12 % p. a. from the date of the judgment till realisation of the amount. 3. The Original Opponents Nos. 1 to 3 are also directed to pay Rs. 2,000 /- towards cost, including cost awarded by the Forum. 4. The Appeal No. 832/2001 is dismissed. 5. Copies of the order be furnished to the parties. Appeal dismissed.