K.P. Sinha, Member:
1. This application is by Justice R.N. Thakur a retired Judge of Patna High Court at present working as a Member, Illegal Migrants (Determination), Appellate Tribunal in Assam at Gauhati. On 17.10.89 Shri Thakur, his wife Smt. Savitri Devi and nephew Shri Saurav Jyoti Sharma. They were to go to Gauhati and they tried for reservation in N.E. Express and Tinsukhia Mail which passes through Patna but could not succeed. Therefore, they sent a person to Muzaffarpur for reservation for 17.10.89 in Awadh- Assam Express (510 Dn). The complainants got three tickets for First Class; with regard to two tickets for Justice Thakur and his wife reservation was confirmed and 3rd one was kept in waiting list. On 17.10.89 Justice Thakur with his wife and nephew left Muzaffarpur by that train for Gauhati and they were given berth in a First Class Coupe at Muzaffarpur in which another passenger along with his attendant was also travelling.
2. According to the case of the complainant the said coupe was hopelessly bad. The door was in broken condition, it could not be locked or bolted and the coupe was extremely dirty, not worth use by human beings; and they complained to the Conductor. At Samastipur another coupe which had fallen vacant was given to them but that too was in very bad condition though its door could be bolted; that it was also awfully dirty, instead of screws nails were fitted in benches which were rusted and exposed, by which they got scratches twice; that windows were so fitted that in the night when there was rain, water came down in the bogey with the result water went beneath the benches causing great inconveniences to them and that the condition of the bath room was awfully terrible. Water used to flow out, with the result there was no water in bath rooms when train was running. They complained several times to the conductor and of course water was filled up at halting stations, but it all leaked. Its basins and pans were so dirty that it was impossible to use. They could not use bath room in course of journey of twenty four hours. As the result of these defects in the bogey they could not sleep during the night and remained in mental and physical torture and shock through out the journey. Therefore, they have claimed compensation for Rs. 1,50,000/- each.
3. Written statement was filed only by the O.P. No.3. Initially preliminary objections were taken regarding maintainability of the case under the Consumer Protection Act before this Commission and O.P. No.3 insisted for the disposal of this preliminary objection first. Therefore, after hearing the parties the Commission decided this preliminary objection on behalf of the O.P. regarding maintainability of the case and it was disposed of by the order dated 20.12.90 I (1991) CPJ 10 (NC). It has been held that the case is maintainable before this Commission. It may be mentioned that the National Commission has finally disposed of this question of maintainability of such cases under the Act by a passenger against the Railway Administration in 1st Appeal No. 3 of 1988 (General Manager, S.E. Rly. and Others v. Shri Anand Prasad Sinha) decided by the National Commission on 28.8.89 I (1991) CPJ 10 (NC). It was an appeal against the judgment passed by this Commission. In this case the National Commission has held that the passengers travelling by trains on payment of the stipulated fare charged for the tickets are âconsumersâ and the facility of transportation by rail provided by the Railway Administration is a "service" rendered for consideration as defined under the Act.
4. O.P. No. 3 in his written statement has challenged the case on its merit. Of course there is general denial with regard to the allegations made by the complainant in the complaint petition. The written statement filed on behalf of the O.P. No.3 contains at its foot verification by one Shri Lallan Prasad, Divisional Rail Manager, N.E. Railway, Sonpur in which it is mentioned "that the contents of this written statement are true to my information derived from the records of the Railway Administration which I believe to be true. Annexures are true copies of original". Thus O.P. No.3 has no personal knowledge about the allegations made in the complaint nor he had any occasion to hold any inquiry personally regarding those allegations. The averments in written statement of O.P. No. 3 are based on the Annexures to that written statement. Annexure-R is a letter dated 17.1.90 written by the Divisional Railway Manager (Mech), Northern Railway, New Delhi to The Divisional Railway Manager (C), N.E. Railway, Sonpur. From this Annexure it appears that the coach by which the complainant was travelling was coach No.6144- NFR-WFC and it was no more in service and, therefore, its present condition could not be assessed. In this situation it was not possible for O.P. No. 3 to say anything about the condition of the coach in which complainants were given berths. Moreover it is clear that the train left Delhi on 16.10.89 and before it left Delhi, the coach was given "only Rolling-in-examination, wheel tapping and axle-box feeling and was then transferred to the washing line for secondary maintenance and cleanliness".
5. The last paragraph of Annexure R reads as follows: -
"Commenting upon the original complaint of Hon'ble Justice R.N. Thakur, it has come to light that he and his family travelled in one of the coupes of this coach from Muzaffarpur Rly. Station to Samastipur and in another coupe from Samastipur onwards. As regards sanitary conditions of the coupe, Delhi has no comments to other, as after start from Delhi, the coach was due for cleaning attention on passing through train at MB, BE and LKO stations over Northern Railway nominated stations on N.F. Railway etc. before reaching MFP. The conductor/coach attendant should have got the coupe cleaned and the toilets attended on these stations by summoning the services of CandW Safaiwalas available on the platform. As regards, the coupe door not getting bolted or locked from inside, this can be result of its mis-handling or rough handling during journey of the coach from Delhi to MFP. Had the coach attendant or the Conductor taken an initiative enroute, it could have been rectified at any of the over half-adozen Train Examination Stations falling enroute. As regards water seeping inside the compartments through the windows and stained basins and pans and rusted and exposed nails fitted in the benches instead of screws, the matter needs to be referred to the N.F. Railway to whom this coach belongs to and who is responsible for its primary maintenance, as proper upkeep and attention to periodical schedules in the coaches is the responsibility of the base depot."
5. Thus from Annexure-R it is evident that there is no denial therein regarding the specific allegations made by the complainant in complaint petition regarding the windows, basins, pans, exposed nails etc. in the coach. Hence the averments in the written statement denying the allegations in the complaints are not being supported by Annexure-R. The allegations thus made by the complainant in his complaint petition remain uncontroverted. The Conductor who was attending the coach was the best person to say regarding the allegations made by the complainant. But there is nothing on the record to indicate that any inquiry was made by the Railway Administration from him nor he had been produced for examination before this Commission.
6. Annexures R1 and R2 are true copies of page 30 of Rake Link and Instructions respectively. They are of no help for the matter in dispute. Annexures R3 and R4 contain information collected from the Divisional Railway Manager (C), N.E. Railway, Katihar and Station Superintendent, N.E. Railway, Gauhati. But they also are of no help because it is not the case of the complainants that they had made complaint to any other person except the conductor in the coach or had made any entry in the complaint book. There appears no reason as to why the Railway Administration did not make any enquiry from the Conductor attending the coach and why he has not been examined in the case.
7. Photo copies of requisition and reservation chart are Annexures R 5 and 6. They support the case of the complainants that they were travelling by 510 Dn. on 17.10.89 in first class.
8. Annexure 7 is photo copies of Thakur Prasad's Calender for the month of October, 1989. It has been annexed to indicate that it was month of "Kartik". It has been averred in the written statement that during Kartik normally it does not rain. But there are rains in the month of Kartik even. It was Chitra Nakshatra as it appears from Annexure-7 and usually there are rains during Chitra Nakshatra. In Kartika, days are at times very hot. Therefore, it can not be said as averred by O.P. No.3 in his written statement that non functioning of one fan in a coach is immaterial during this month.
9. It may be mentioned that this complaint was sent by Justice Thakur (Complainant) after reaching at Gauhati and on that basis this case has been registered. There appears no reasons as to why unnecessary complaint would be made against the O.P. by the complainants.
10. It is evident from discussions made above that the allegations made by the complainants in their complaint petition are not controverted by any of the Annexures to the written statement. Hence the Commission finds and holds that there was deficiency in service on the part of the opposite party.
11. Now the question arises are the complainants entitled to compensation. A person purchases first class ticket and gets the berth reserved only to ensure comfortable journey. But the complainants could not have comfortable journey in spite of that and they have to pass sleepless night. It must have caused stress and strain to the complainants. Hence they are entitled to compensation.
12. The complainants, however, have claimed Rs. 1,50,000/- as compensation which is too high. We feel that a compensation of Rs. 1,000/- each will serve the ends of justice and we accordingly direct the Railway Administration â the opposite party, to pay that amount to each of the complainant as compensation.
There is no order as to costs.
Complaint allowed.