Appeal No.2089 of 1998,Complaint No.159 of 1994

11th October, 2004

Petitioner Counsel: Mr. S. M. SAYEED
Respondent Counsel: Mr. R. B. Aggarwal A.R.

Cases Cited:
Charan Singh Vs. Healing Touch Hospital, (2000)7 SCC 688 [Para 21]

JUDGMENT

M. S. RANE, J. :- This is a second inning that this matter is having before his Commission, in the circumstance as would be explained herein after.

(For brevity's sake Appellant who are original O.Ps. in the Complaint are referred to as 'Railway authority' and Respondent who is original Complainant as 'Complainant').

2. Railway authority has challenged the impugned order dated 24-7-98 passed by the District Forum Jalgaon holding it deficient vis-a-vis in providing services to the complainant in respect of his journey for which the complainant has made booking in the Sleeper Coach from Bhusawal to Surat in Train No.114 on 11-6-93 and has awarded a sum of Rs.5,000/- on account of deficiency in services and Rs.5,000/- for mental torture and Rs.1,000/- cost as appear in the operative clause of the impugned order.

Few relevant facts -

3. The complainant on 9-6-1993 reserved four tickets in the sleeper coach in train No.114 from Bhusawal to Surat for journey on 11-6-1993.

4. On the date of journey when the complainant along with their family members went to catch the train, from Khamgaon to Bhusawal at about 17 hours, they noticed that the condition of the bogie was absolutely unsatisfactory. There was no berth arrangement in the sleeper coach and there was no sleeper coach to the train.

5. Eventually the complainant and his relatives had to undertake journey by the said train in the coach which was available and which was not at all comfortable and without being berth and sleeping arrangements. It is in these circumstances that the complaint was filed claiming damage of Rs.15,000/- and cost etc.

6. The Railway authorities who were noticed responded by written say. Moreover it filed as many as four Affidavits of its different employees viz. Dahijbai Son of Ramsodbai Solankhi Deputy Superintendent at Surat, Manilal Chotubai Wasava Head T. T. Surat, Hemkant Digamber Saukare T. T. Bhusawal and Kishor Manohar Herandolkar Announcer at Bhusawal Station.

7. The affidavits mention that on the date at the time of journey in question all of them were on duty.

8. While admitting about the non-availability of the sleeper coach on the day in question, it is sought to be explained which is common factor in all these affidavits that derailment occurred on 4-6-1993 at Chinchpada and Khadgaon resulting in causing damage to the sleeper coach. Since the de-railed coaches were lying on the track and there being only single line, there was complete dislocation and disturbances in operating the train on the track. Mr. Dayabai Solankhi's affidavit mentions "Traffic which was regularised within 24 hours, during the period the train passing via Surat were directed via Basin Road etc.".

9. It is not necessary to have detailed advertance to the contents of the other affidavits of the Railway staff which more or less proceed on the same line as of affidavit of Dayabai, except Affidavit of Ms. Kishori Yerandolkar who worked as Announcer who has stated that she announced about the non-availability of sleeper coach to the train in question as also those passengers having reserved tickets if desired not opting for journey by ordinary coach would be refunded the fare amount.

10. The complainant filed rejoinder repeating and reiterating the facts as averred in the complaint. The complainant specifically pointed out that he along with his relatives booked ticket on 9-6-93 and journey was on 11-6-93 where as the so called derailment had occurred on 4-6-93 and stand as and by way justification taken has no relevance to the matter herein.

11. The District Forum probed the matter.

12. Across the learned Advocate for Railway submitted that the District Forum has not taken into account various affidavits filed on behalf of Railways mentioned herein above. It is submitted that accident as occurred, was beyond control of Railway administration and it cannot be held being deficient in service.

13. Mr. Aggarwal countered the submissions advanced on behalf on the Railway pointing out that assuming there was derailment, then the same had no nexus to the so called accident/derailment on the date of journey of the complainant which was six days thereafter. He further submitted that if the sleeper coaches were damaged in accident occurred on 4-6-93 then why on 9-6-93 confirmed tickets were issued for coaches which fact has not been explained.

14. It is to be stated that the District Forum in its impugned judgment has not adverted to contents of affidavits filed and on behalf of Railway authority by its employees.

15. However, the facts as noticed herein above, the same would not any way affect the ultimate conclusion rendered by the Forum to the effect the Railway being deficient in rendering services vis-a-vis to the complainant.

16. To be precise on own showing of the Railway authority the accident occurred on 4-6-93 and at one stage, as noticed earlier, it has stated that every thing was normalised within 24 hours. If that was the position then why the sleeper coach could not be made available on 11-6-93 being the date of journey of the complainant. It is, therefore obvious that the Railway authority has tried to set up defense/justification which is not at all tenable in the fact situation as obtained in the matter herein.

17. The learned Advocate for Appellant also submitted that option was provided to the passengers like the complainant to opt for the refund of the amount and the complainant could not opt for the same. It needs to be stated that there may be various reasons as the complainant had to undertake journey to attend to his commitments which could not be postponed. Therefore it would not be proper on the part of the railway authority to put up such defense as it has done.

18. Furthermore, the Railway authority is plying Railway services in the country under Indian Railways Act which contains elaborate provisions casting various duties upon the Railways to ensure proper and comfortable journey of its passengers/consumers. Prior to that also clothes the Railway authority with various powers and authorities to take action including that of criminals against the passengers for its breach of statutory requirements. In the matter herein the railway authorities who issued reserved tickets in the sleeper coach to the complainants on payment of fare, it failed to provide the sleeper coach as was assured and such failure would constitute deficiency in service.

19. Therefore findings rendered by the District Forum the Railway authority being deficient has to be upheld.

20. Now the District Forum has awarded a sum of Rs.5000/- on account of deficiency in services and Rs.5000/- for mental torture.

21. It needs to be stated that recently Hon'ble Supreme Court in the case of Charan Singh Vs. Healing Touch Hospital & Ors. reported in the Supreme Court Cases (2000)7 SCC 688, has laid down that the Consumer Fora while resolving claim for damages and Compensation, they must do so by applying well settled principle of Law. Party claiming the damages has to furnish the particulars/breakups in support of claims particularly with regard to the damages/losses by adducing relevant evidence.

22. Section 14(i)(d) clearly provides for the same -

"14. Finding of the District Forum :- (I) If, after the proceedings conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to (do) one or more of the following things, namely-

(a) to remove the defect pointed out by the appropriate laboratory from the foods in question;

(b) to replace the goods with new goods of similar description which shall be free from any defect;

(c) to return to the complainant the price or, as the case may be, the charges paid by the complainant;

(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party".

23. It would be noticed that there are two components to be taken into account while compensating the claimant party like the complainant herein. In the first instance for any losses which would imply the actual loss or damages suffered by the party and second aspect is compensation suffered due to cause of injury suffered due to negligence on their part which would imply mental agony as well.

24. Now coming to the case herein the fact that the complainant and his relatives were required to travel such a long distance in most inconvenient and uncomfortable situation would clearly show the amount of mental torture and annoyance they had to undergo. That being so, award of compensation of Rs.5000/- has to be upheld.

25. As far as loss is concerned, we do not find any in the complaint to assess exact losses that complainant suffered. The fact clearly shows that on the day in question the complainant and his relatives did undertake journey by the same train but without sleeper coach.

26. Across the learned Advocate for applicant/complainant stated that complainant had to pay additional sum of Rs.108/- that the complainants were required to pay towards the reservation.

27. Since there is no other material made available to show the extend of losses or damages suffered by the complainant, in our view order of Rs.5000/- towards compensation as made cannot be sustained. Instead a sum of Rs.108/- which the complainants were required to pay will have to be awarded.

28. We, therefore, modify the impugned award to that extent. Rest of the award requires to be upheld and confirmed.

29. Before that parting we wish to state this Commission earlier disposed of the complaint by its order dated 6-12-99 by allowing the appeal and dismissing the complaint against which the complainant approached the National Commission in R.A. No.962/2000, which Revision came to be allowed by the National Commission by its order dated 20-3-2002 remitting the Appeal to this Commission for consideration afresh on merits which we have proceeded to dispose of today with the order as above.

ORDER

The appeal is partially allowed to the extent as under -

1. Findings rendered by the District Forum holding the Railways (sic) are upheld and confirmed.

2. Award of Rs.5000/- towards mental agony also stands confirmed.

3. Award of Rs.5000/- towards loss stands modified and substituted to the figure of Rs.108/-.

4. Award of cost Rs.1000/- also stands confirmed.

5. Appellant shall pay cost in the appeal proceedings to the Respondents/complainant quantified Rs.3000/-.

6. Office to furnish copies of the order to the Parties.

Appeal party allowed.