B.C. Gupta ORDER
V.K. Jain, J. (Presiding Member)
1. The complainant/respondent, along with his wife and some others travelled from Nizamuddin to Banda in AC Coach of Uttar Pradesh Sampark Kranti Express. The complainant at that time was posted as District Magistrate of Banda. His wife Mrs. Anju Ranjan kept her belongings, including a hand purse on a seat, in the coach in which they were travelling. The said purse allegedly contained one ruby & diamond ring, cash, one Nokia mobile phone, US$ worth Rs. 45,000/- and important documents. The aforesaid purse was stolen during the course of their journey. The articles of some other co-passengers were also stolen during the course of the said journey. Alleging negligence and insufficient security on the part of the North Central Railways, the complainant approached the concerned District Forum by way of a complaint.
The complaint was resisted by the Railways, claiming that there was no deficiency on their part in rendering services to the complainant.
2. It transpired during the course of hearing before the District Forum that the purse of the wife of the complainant had been stolen by a coach attendant, who had been employed by the Railways and was on duty in the coach in which the complainant was travelling. Vide order dated 30.5.2013, the District Forum directed the petitioners to pay a sum of Rs. 26,000/- to the complainant towards the cost of the stolen goods, along with Rs. 7,000/- as compensation and Rs. 2,000/- as the cost of litigation.
3. Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed vide impugned order dated 30.12.2014, the petitioners are before us by way of this revision petition.
4. Section 100 of the Railways Act, 1989 reads as under:
"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 therefor 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".
It would be seen from a careful analysis of the aforesaid provision that it exempts the Railway Administration from any liability, for the loss, damage etc. where the luggage is carried by a passenger in his charge, except in a case where the loss, destruction, damage or deterioration to the luggage of the passenger happens due to the negligence or misconduct on the part of the Railway Administration or on the part of any of its servants. Thus, if it is shown that the luggage carried by the passenger in his charge was lost, damaged or destroyed due to misconduct on the part of a railway employee, Section-100 of the Railways Act cannot be invoked for resisting a claim seeking reimbursement for such a loss, damage or deterioration. The term 'luggage' has been defined in Section 2(23) of the Railways Act to mean the goods of a passenger either carried by him in charge or entrusted to a Railway Administration for carriage. Therefore, the purse of a passenger which he carries under his own charge, would be luggage, within the meaning of the Railways Act and a consumer complaint for the loss of the purse as well as the articles kept in it will not be barred if the said loss happens due to negligence or misconduct of a railway employee. In the present case, it is the case of the petitioners themselves that the articles of the complainant, his wife and their companions were stolen by Coach Attendant. The railway attendant is a servant of the railways irrespective of whether he is employed directly or is engaged on contractual basis through a contractor employed by the Railways.
5. The contention of the learned counsel for the petitioners was that the Railways will not be vicariously liable for the loss or damage to the luggage of the passenger on account of the criminal act of a railway employee such as theft. In support of his contention he has relied upon the decision of the Hon'ble Supreme Court in S.K. Alagh v. State of Uttar Pradesh & Ors. MANU/SC/7162/2008 : (2008) 5 SCC 662. In the aforesaid case, one Ashok Kumar filed a complaint against the appellant, Shri S.K. Alagh who was the Managing Director of Britannia Industries Ltd., under Section 406 of IPC. The company was not impleaded as an accused in the said complaint. The case of the complainant in the criminal complaint filed by him was that despite receiving two demand drafts from him for supply of goods, his dealership had been terminated, instead of delivering goods to him. The appellant was summoned by Magistrate before whom the complaint was filed. He filed an application seeking discharge in terms of Section 245 (2) of the Criminal Procedure Code. The Magistrate passed an order, terminating the proceedings and releasing the appellant. The said order was challenged by the complainant by way of a revision petition, which was allowed. A petition filed by the appellant under Section 482 of the Code of Criminal Procedure having been dismissed by the High Court, he approached the Hon'ble Supreme Court by way of an appeal. The question which came up for consideration before the Hon'ble Supreme Court was as to whether the appellant could be said to have committed an offence under 406 of IPC even if allegations made in the complaint were taken at their face value. Noticing that the demand drafts were issued in the name of the company and the dealership agreement also was between the complainant and the company, it was held that the appellant who was the Managing Director of the company cannot be said to have committed an offence under Section 406 of IPC. While holding so, the Hon'ble Supreme Court noted that there was no provision in the Statute holding a Director of a company vicariously liable for an offence committed by the company. The aforesaid judgment is clearly inapplicable to the case before us, where the only issue involved is as to whether the service provider is liable to compensate the consumer for the loss sustained by him on account of the misconduct of an employee of the service provider.
6. It has to be kept in mind that the fare for travelling in the train was paid by the complainant and his companions to the Railways and therefore, they were the consumers of the Railways. If the consumer has to suffer a loss on account of some negligence or misconduct on the part of an employee of the service provider, being a shortcoming in the nature and manner of performance, this would be a case of deficiency in the services rendered to the complainant, for which he is entitled to be reimbursed by the service provider. A Coach Attendant is expected to take care of the convenience of the passengers, and not to steal their luggage. Though, criminal liability for an act of a railway employee cannot be fastened upon a juridical person such an Indian Railways, civil liability in the form of compensation for the defect/deficiency in the services rendered to a consumer will certainly be payable by the service provider which in this case happens to be Indian Railways.
7. In State of Rajasthan v. Mst. Vidhyawati & Anr. MANU/SC/0025/1962 : AIR 1962 SC 933, the driver employed by State of Rajasthan caused an accident while driving a Government jeep, resulting in death of a person. It was found that the death was caused due to negligence of the jeep driver. It was contended on behalf of State of Rajasthan that it would not be liable to pay compensation for the accident committed by the driver employed by it. Rejecting the contention, it was held that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning such as any other employer. This issue again came to be considered by the Hon'ble Supreme Court in Kasturi Lal Ralia Ram Jain v. The State of Uttar Pradesh (MANU/SC/0086/1964 : AIR 1965 SC 1039) where it was found that the gold belonging to the complainant had been misappropriated by a police official in charge of Malkhana. It was contended on behalf of the State of Maharashtra that even if negligence was proved, the State would not liable for the said loss. While holding the police officials to be negligent, the Hon'ble Supreme Court denied relief to the complainant, against the State of Maharashtra on the ground that the powers exercised by the police officials were Sovereign powers and therefore, claim would not be maintainable. Distinguishing its earlier decision in Vidhyawati (supra), the Hon'ble Supreme Court inter-alia observed as under:
"In dealing with such cases, it must be borne in mind that when the State pleads immunity against claims for damages resulting from injury caused by negligent acts of its servants, the area or employment referable to sovereign powers must be strictly determined. Before such a plea is upheld, the Court must always find that the impugned act was committed in the course of an undertaking or employment which is referable to the exercise of sovereign power, or to be exercise of delegated sovereign power..."
"It is not difficult to realize the significance and importance of making such a distinction particularly at the present time when, in pursuit of their welfare ideal, the Government of the States as well as the Government of India naturally and legitimately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of Governmental activities in which the exercise of sovereign power is involved. It is necessary to limit the area of these affairs of the State in relation to the exercise of sovereign powers, so that if acts are committed by Government employees in relation to other activities which may be conveniently described as nongovernmental or non-sovereign, citizens who have a cause of action for damages should not be precluded from making their claim against the State, that is the basis on which the area of the State immunity against such claims must be limited; and this is exactly what has been done by this Court in its decision in the case of State of Rajasthan".
8. In Nagendra Rao and Company v. State of Andhra Pradesh MANU/SC/0530/1994 : (1994) (6) SCC 205, certain goods were confiscated under the provisions of Essential Commodities Act, 1955 but the said order was later annulled. The owners of the goods refused to take delivery and filed a suit claiming value of the goods by way of compensation. The High Court having held against the complainants they approached the Hon'ble Supreme Court by way of an appeal. Allowing the appeal, the Hon'ble Supreme Court inter-alia observed and held as under:
"In Welfare State, functions of the State are not only defence of the country or administration of justice or maintaining law and order but extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which no rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime etc. which are among the primary and inalienable functions of a constitutional government, the State cannot claim any immunity.
The determination of various liability of the State being linked with negligence of its officer, if they can be sued personally for which there is no death of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rational for the proposition that even if the officer is liable the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury. But the Crown was held immune on doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State".
9. Taking a similar view in State of Maharashtra & Ors. v. Kanchanmala Vijay Singh Shirke & Ors. (JT 1995 SC 155), the Hon'ble Supreme Court inter-alia observed and held as under:
"Traditionally, before court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage. But of late, it shall appear form different judicial pronouncements that the fault is being read as because of someone's negligence or carelessness. Same is the approach and attitude of the courts while judging the various liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected not to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligence or not has to be examined on the materials produced before the Court. It is the rule that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case, it can be found that an employee was doing an authorized act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting done something negligent or wrongful. A master is liable even for acts which he has not authorized provided they are so connected with acts which he has been so authorised. On the other hand, if the act of a servant is not even remotely connected within the scope of employment and is an independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside."
10. In our opinion, the view taken by the Hon'ble Supreme Court in the cases where the complainants suffer on account of negligence of the State employee would equally apply in a case where he suffers on account of the misconduct such as theft or misappropriation. Therefore, the petitioners, in our view, would be liable to reimburse the complainants/respondents for the loss suffered by him on account of the theft committed by a railway employee. Taking a contrary view, will result in a situation where a consumer is left to identify the employee irresponsible for the loss sustained by him and then locate and sue him for compensating him for the loss sustained by him. It may not always be possible to identify the employee or locate him even if it is established that the loss to the consumer took place on account of the misconduct of employee of the service provider and even if such an employee is identified and located, it may not be possible for the consumer to recover adequate compensation form him. The Consumer Protection Act, being a Social Welfare Legislation, the complainant in our view, cannot be placed in such a difficult position. In our view, in such a case, it will be for the service provider to compensate him and then seek to recover the amount which it pays to the consumer, from the employee due to whose misconduct the consumer has suffered a loss.
11. For the reasons stated hereinabove, we find no merit in the revision petition and the same is dismissed. No order as to costs.
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