J. Bag, Ld. Member:
The present appeal is directed against the Order dated 20.07.2012 of the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas, in C.C. No. 94/2012 whereby Ld. Forum below dismissed the complaint on the question of maintainability.
The Complaint case, in brief, was as follows:
The Complainant, Shri Susanta Kumar Saha on 26.09.2011 purchased a Sleeper Class Reservation Ticket bearing No. 39334030 (PNR No 2426742374, SL Coach No. S-10, berth No. 62), for his journey on 11.10.11 from Kharagpur to Puri by Train No. 18478, Utkal Kalinga Express . On the date of journey he, having learnt from enquiry counter at Howrah Station, apart from contacting Railway Service Enquiry by dialing 139 that the train would run through Khargapur Station and not from Howrah , went to Khargapur Station at about 8.20 p.m. and met the Station Manager from whom he came to know that Utkal Kalinga Express (Train No. 18478) had not been touching Khargapur Station since May 2010 after the incident of Ganeswari Express accident and ultimately, he failed to avail of that train. The matter was reported by the Complainant to the Station Manager, Kahragapur, but the Railway authority in reply told that they received such complaints since May 2010 and the said train did not touch the Kharagpur Station. After having received no satisfactory reply to his letter dated 25.10.11 addressed to the D.R.M, Eastern Railways, Sealdh Division which he waited for about one year and five months, he filed a complaint before the Ld. Forum below.
In their written version the OP Railway authority submitted that the Ld. District Consumer Disputes Redressal Forum has no jurisdiction to entertain such a complaint in view of the fact that it is completely within the jurisdiction of the Railway authority to decide about compensation and as a complaint already filed with the DRM Eastern Railway Sealdah Division is pending, the complaint matter is to be decided as per provisions of the Railway Claims Tribunal Act.
Ld. Forum below observed, inter alia , that the Complainant purchased a bonafide ticket which was confirmed, but the plea taken by the Railway Authority that particular train was not passing through Kharagpur Station since May 2010 was not fair on the part of the Railway authority , Barrackpur who issued the ticket on 26.09.2011 . It was also observed that âno further intimation was given to the customer by the Railway Authority that his journey ticket was wrongly issued with request to surrender it. The Complainant âfaced much harassment due to negligent manner of the Railway Authority . Practically, that is not denied by the OP. Ld. Forum , also observed that the Railway Claims Tribunal Act is a complete Code that provides not only for deciding about remedy of the aggrieved parties but also for adjudicating the disputes covered by the said Act. In this regard the judgment reported in (1995) 1 CPJ page -3 (SC) was relied upon .It was decided that the complaint would not be maintainable in the eye of law as the Consumer Fora has no right to decide such a dispute and is ousted by the Railway Claims Tribunal Act of 1987. Hence, the complaint was decided to be non-maintainable.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the Complainant / Appellant has come up before this Commission with the averments that the Order of the Ld. District Forum suffers from error in so far as the facts of the complaint were not taken into consideration and the losses suffered by him being the result of deficiency in service on the part of the OP/Appellant , the said order of the District Forum deserves to be set aside. It has also been averred that he was not given opportunity of submitting his arguments before the Ld. Forum below and the matter was decided solely on the basis of the version of the OP Railway authority.
We have gone through the Memo. of Appeal together with the impugned order, apart from the petition of complaint and annexures filed along . The Complainant /Appellant in person and Ld. Advocate appearing for the Respondent / Railway authority have been heard .
The Complainant / Appellant in submitting his brief notes of argument, emphasized that Section 13 of the Railway Claims Tribunal Act , 1987 can not be a bar to his filing of the complaint, in so far as the Claims Tribunal is empowered to deal with some speficic matters relating to compensation for loss , destruction, damage, deterioration or non delivery of animals or goods or claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a Railway administration to be carried by the Railways. But in his case he neither claimed for refund of fare or part thereof or refund of any freight . It was his case that he, in spite of purchasing a valid Reservation-cum-Ticket from the Railway ticket counter clearly mentioning boarding and terminating points, was not able to avail of the service only because of deficiency in service and negligence on the part of the OP / Respondent . He suffered mental agony , stress , tension and physical stress and was compel to avail alternative arrangement with endorsement in the ticket only but without availing any seat / berth during the course of his journey for 7 hours and a half , only because incorrect and misguiding information was provided by Railways 139 enquiry service as well as by the enquiry booth at Howrah Station. Section 13 of the Railways Claims Tribunal Act was not applicable and there was no question of applying the provisions relating to bar of jurisdiction u/S 15 of the said Act. In citing the order of the Honble National Consumer Disputes Redressal Commission in Revision Petition No. 864 of 2006 , it was emphasized that a Railway passenger who purchases a ticket for traveling by the Railway would undoubtedly be a consumer because he pays for availing of the services to be rendered by the Railways. Another judgment by the Honble National Consumer Disputes Commission in Original Petition No. 179 of 1994 was also cited showing that if a person agrees to offer his services he can not escape his liability by raising a plea of delegation of the performance thereof to a third party .
Ld. Advocate appearing for the OP / Respondent submitted that the route of Train No. 18477 / 18478 was diverted for the time being due to the accident of Ganeswari Express. Information about such route diversion was relayed to the passengers in advance through media . Such notice was issued through the daily newspapers , namely Sonmarg , The Statesman and Sambad Pratidin on 06.10.2011 . Ld. Advocate for the OP / Respondent cited the decision of the Honble High Court Kolkata in C.O No. 1311 of 2009 , General Manager, Easter Railway, Kolkata and others âvs- Shri Apurba Konar where the Honble Justice Tapan Kumar Dutt observed , in the context of sustaining serious injury by the Petitioner passenger because of alleged deficiency in service on the part of the Railway authority that the case was not maintainable under the Consumer Protection Act 1986. Further, the Station Master on duty at Kharagpur Station endorsed the ticket facilitating the Complainant to travel by an alternative Express Train (Jaganath Express) up to Puri. There was no deficiency in service on the part of the OP Railway authority and the complaint case was not maintainable before the Ld. Forum below in view of Sections 13 and 15 of the Railway Claims Tribunal Act 1987.
Decision with Reason
The fact goes that the Complainant purchased a Journey-cum-Reservation ticket from the Railway Reservation Office at Brrackpur after providing all particulars necessary for issuing a Railway ticket, i.e. boarding and terminating points , the Train Name and No. and other information as required by the Railway counter staff. It was the primary responsibility of such staff to make the intending passenger aware of any situation that may not fulfill the purpose of purchasing the ticket. In the present case the Complainant / Appellant might have been ignorant about the diversion of the route of the desired train for his journey from Howrah Station to Puri and might have not been aware of the notices issued thorough newspapers , but the Railway staff manning the ticket counter is supposed to be posted with every relevant information about the running of the desired train between the staring and destination points as mentioned by the passenger. It is absolutely the fault and negligence on the part of the concerned Railway staff that he issued a ticket to the Complainant / Appellant without any care or caution. As a result, the passenger suffered and no satisfactory explanation could be provided by the OP/Railway authority. Ld. District Forums observation is quite correct that the Complainant âfaced much harassment due to negligent manner of the Railway Authority. But , though observed by the Ld. Forum below, the question of any bar to filing a claim for compensation for mental agony and harassment does not arise in so far as the complaint was not aimed at seeking refund of any fare or freight as provided u/S 13 of the Railway Claims Tribunal Act . It was rather a complaint against neglectful and careless service rendered by and on behalf of the Railway authority. Ld. Forums observation that the claim in question was barred by of Sections 13 and 15 of the Railway Claims Tribunal Act does not augur well in the present case, in so far as the said provisions of the Railway Claims Tribunal Act deal with some specific matters which do not include the contents of the OP/Appellants complaint. The impugned order suffers from material irregularity and illegality.
We are convinced that the harassment and mental agony of the Complainant / Appellant could have been avoided, had the Railway authority would have informed the Complainant/Appellant through SMS or otherwise in addition to publicity in some Newspapers that the Kalinga Utkal Express would not pass through Kharagpur Station on 11.10.11 , though the fact remains that passengers of Kalinga Utkal Express were admittedly accommodated in some extra coaches attached to other trains till 10.10.2011. We are also convinced by the evidence produced by the Complainant before the Ld. Forum below that there was deficiency in service on the part of the OP / Respondent and the complaint is not barred by the provisions of the Railway Claims Tribunal Act. The Appeal succeeds.
Hence,
Ordered
That the appeal be and the same is allowed on contest . A compensation of Rs. 1,00,000/- (One lakh ) only shall be paid by the OP / Respondent Railway authority along with a litigation cost of Rs. 1,000/- . The total sum of Rs.1,0,1000/- shall be paid within 45 days from the date of this order , failing which Rs. 50/- for each day of default after the said 45 days shall be payable by the OP / Respondent till full realization of the sum awarded.