Research › Search › Judgment

Madhya Pradesh High Court · body

2020 DIGILAW 1 (MP)

Union Of India v. Kanta Bhoumiya

2020-01-03

MONIKA MALIK, SHANTANU S.KEMKAR

body2020
JUDGMENT Shantanu S. Kemkar, J. - Feeling aggrieved by the order dated 26.3.2008 passed by the District Consumer Disputes Redressal Forum, Katni (for short the "Forum") in CC No.151/2007 the appellants - opposite parties have filed appeal No.1192/2008 challenging the findings of the Forum holding them negligent and ordering them to pay compensation to the complainant. The Appeal No.2172/2008 has been filed by the complainant seeking enhancement in the compensation amount. Both the appeals are decided by this common order. 2. In short, the case of the complainant before the Forum was that on 16.9.2006 she boarded Howrah Mumbai passenger train No.2321 for travelling from Howrah to Katni. During the journey her purse was stolen on 17.9.2006 between Allahabad and Manikpur from Coach No. S/1 in which she was travelling on reserved berth. She lodged an F.I.R. of theft at G.R.P. Katni. According to her, the purse was containing cash amount of Rs.4,000/- and a gold Mangalsutra valuing Rs.15,000/-. Alleging deficiency in service and security lapse on the part of the opposite parties, she filed complaint case seeking compensation of Rs.19,000/- for the loss of the Mangalsutra and cash on account of theft of purse and Rs.80,000/- for mental agony. 3. The complaint was opposed by the appellants / opposite parties by denying allegations about negligence and deficiency in service on their part. 4. The Forum after considering the evidence led by the parties vide impugned order partly allowed the complaint and directed the appellants to pay Rs.19,000/- with interest @9% as compensation for the loss of cash and Mangalsutra, Rs.10,000/- for deficiency in service in not providing security and cost of Rs.500/-. Aggrieved by the said order both the parties are in appeal. 5. Learned counsel for the appellants - opposite parties has argued that the complainant had failed to make out any case for deficiency in service and of not providing adequate security for the passengers and thus, having failed to prove negligence on the part of the appellants no compensation could have been ordered by the Forum. He submits that neither in the FIR nor in the letters written by her to the Railway Police any specific averment about the negligence or deficiency in service in not providing adequate security has been made. He also argued that even in the complaint the negligence has not been clearly pleaded. He submits that neither in the FIR nor in the letters written by her to the Railway Police any specific averment about the negligence or deficiency in service in not providing adequate security has been made. He also argued that even in the complaint the negligence has not been clearly pleaded. In support of his submissions learned counsel for the appellants has placed reliance on an order passed by this Commission on 14.3.2019 in the case of Divisional Rail Manager versus Smt. Pratima Agrawal, FA No.863/2015 as also the order passed by the National Commission in the case of Zonal Manager/General Manager Bilaspur versus Purushottam Mohna, (2019) 1 CPJ 335 (NC). 6. On the other hand, learned counsel appearing for the respondent / complainant has argued that the Forum has rightly held the appellants negligent, but has committed error in not adequately compensating the respondent / complainant - appellant of Appeal No.2172/2008. He in the circumstances, prayed for enhancement of the award amount. 7. We have considered the rival contentions and perused the record. 8. Having gone through the First Information Report as also the written complaint made by the complainant to the S.H.O., G.R.P. Police Station, Katni we find that except making a statement to the effect that she lost her purse containing cash amount of Rs.4,000/- and a gold Mangalsutra due to theft in the train, no allegations whatsoever have been levelled as to in what manner there was negligence on the part of the opposite parties resulting into occurrence of theft. In the complaint filed before the Forum also except a bald statement to the effect that the theft had occurred due to lapse and deficiency in service on the part of the Railway, no averment to the effect as to what sort of negligence was there on the part of Railways or its servants (T.T.E.). There is also no averment to the effect that there was any unauthorized person travelling in the reserved coach and he was not asked by the railway servant to get down from the train. 9. There is also no averment to the effect that there was any unauthorized person travelling in the reserved coach and he was not asked by the railway servant to get down from the train. 9. This Commission in the case of Divisional Rail Manager versus Smt. Pratima Agrawal, (supra) after considering scope of responsibility of Railway as a carrier of luggage as provided under Section 100 of the Railways Act, 1989 which is reproduced here-in-below for ready reference, found that Section 100 is in two parts :- "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 or deterioration was due to the negligence or misconduct on its part or on the part of any of its servants." The first part deals with loss, destruction, damage, deterioration or non-delivery of any luggage which is booked with the Railways against receipt which is normally kept in the brake van. The second part of Section 100 clearly indicates that the responsibility of the Railways as carrier of luggage in the case of luggage which is carried by the passenger in his charge will arise only if it is proved that the loss, destruction, damage or deterioration was due to the negligence or misconduct on the part of the Railways or on the part of any of its servants (emphasis supplied). Thus, the responsibility of the Railways for the luggage which is carried by the passenger will arise only when the negligence or misconduct on the part of the Railways or its servants is proved. 10. As already observed in the present case there is neither any pleading nor any evidence to establish the negligence on the part of Railways or its servants. Thus, in the absence of any pleadings and reliable evidence proving that the theft had occurred due to negligence or misconduct on the part of Railways or its servants, the Forum has committed error in holding the appellants liable to pay compensation. Thus, in the absence of any pleadings and reliable evidence proving that the theft had occurred due to negligence or misconduct on the part of Railways or its servants, the Forum has committed error in holding the appellants liable to pay compensation. The mere fact that the complainant was travelling in a reserved coach itself will not be a ground to infer or held the appellant - Railways negligent or deficient in service, if the theft has occurred. 11. In the case of Zonal Manager vs. Purushottam, (supra) the National Commission noticing that though in the consumer complaint it was alleged that some unauthorized persons had entered the coach in which the complainant and his wife were travelling and TTE did not take any action on the protest registered with him by the complainant, did not grant any relief to the complainant on the ground that no such averment was made in the FIR which the complainant had registered soon after the theft of her suitcase as there was no explanation as to why the said averment was not made in the FIR. The National Commission held that had some unauthorized persons entered the reserved coach and had the complainant lodged protest with the TTE in this regard, he would certainly have stated so in the FIR lodged at the Police Station. In the present case the necessary averment and evidence is missing in the FIR, written complaints to the G.R.P. as also in the complaint filed before the Forum. 12. Having regard to the aforesaid clear position and keeping in view the fact that the complainant failed to make any mention in the FIR or in the written complaint lodged with S.H.O. Katni and there being no specific pleadings in the complaint as to in what manner there was negligence or misconduct on the part of the appellants or its servants, in our considered view the Forum has committed error in holding negligence or deficiency in service on the part of the appellants - opposite parties. 13. As a result the impugned order holding the appellants - opposite parties guilty of negligence and deficient in service and awarding compensation to the complainant deserves to be and is hereby set-aside. As a consequence, the appeal filed by the complainant also stands dismissed. No order as to costs.