PER JUSTICE R.C. JAIN, PRESIDING MEMBER (ORAL)

          Aggrieved by the order dated 23.03.2007 passed by the Bihar State Consumer Disputes Redressal Commission, Patna in appeal No. 607 of 2006, the Northern Railway Administration has filed the present petition purportedly under Section 21 (b) of the Consumer Protection Act, 1986.  The appeal before the State Commission was also filed by the Northern Railway Administration against the order dated 29.04.2006 passed by the District Consumer Disputes Redressal Forum, Patna in

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complaint case No. 119 of 2005, by which order the District Forum had partly allowed the complaint of the complainant and directed the opposite party-Northern Railway Administration to pay a sum of Rs. 1,595/- as the reservation charges, besides a sum of Rs. 10,000/- as compensation towards the harassment and mental agony along with litigation cost of Rs. 1,000/- with the stipulation that if the amount is not paid within two months, the amount shall carry interest @ 18% per annum.  The State Commission dismissed the appeal and upheld the order passed by the District Forum; however, modifying the order of the District Forum that the rate of interest was reduced to 8% per annum.

2.      We have heard Ms. Rekha Aggarwal, learned counsel for the petitioner-Railway Administration but had not the advantage of hearing the say of the respondent-complainant despite notice being issued to him and the respondent having been remitted a sum of Rs. 5,000/- to meet his travel and allied expenses in connection with the present proceedings.  In fact a notice was duly served on the respondent through Registered A/D Card for the hearing fixed for 12.12.2011 but despite that respondent has not cared to appear.  Even the last notice for today’s hearing was issued on 30.3.2012 has not been returned back and therefore, there is a presumption of the service of notice in terms of Section 28(A) of the Consumer Protection Act, 1986.

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3.      Counsel for the petitioner would assail the impugned order passed by the District Forum as based on incorrect and improper appreciation of the facts and circumstances of the case and the evidence and material produced on record.  In fact it is pointed out that the Bench passing the impugned order has committed an act of judicial impropriety inasmuch as the complainant was the brother of one of the Member of the District Forum and residing at the same premises as the complainant himself.  Going by this position, we have no manner of doubt that the District Forum did commit an act of impropriety in dealing with the complaint of his brother who is a Member who did not even cared to recuse from the Bench.  That apart, our attention has been invited to the report of an in-house enquiry conducted by the Railway Administration in the entire episode, which does not bring out any act of negligence or deficiency in service on the part of the employees of the Railway Administration.  Moreover, it appears to us that both the fora have found the petitioner guilty of negligence in service more on surmises and conjectures rather than going by the intrinsic value of the evidence adduced on record.  The version of the complainant about the discourteous behavior on the part of the railway employees, appears to be improbable particularly in the circumstances that the complainant had failed to board the train at the station where from he had the reservation to travel and boarded the

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train at some other station on the railway route.   That being the factual position, the Railway Administration / its employees were well within their right to allocate the reserved berths of the complainant to other passengers, who sought the berths.  In our view by doing so, Railway Administration cannot be said to have committed any deficiency in service.   In our view, the findings are not based on correct and proper appreciation of the facts and circumstances of the case and cannot be legally sustained and the impugned orders are liable to be set aside.

3.      In the result, the revision petition is allowed and the orders passed by the fora below are set aside and as a consequence the complaint is dismissed.