Heard learned counsel for the appellant and Mr. B.K.Nayak, learned counsel for the respondent.
2. This appeal is filed u/s 41 of the Consumer Protection Act, 2019 (hereinafter called the ‘Act’ 2019). Parties to this appeal shall be referred to with reference to their respective status before the District Forum in the Consumer Case is filed under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the ‘Act’).
3. The unfolded story of the complainant is that the complainant decided to proceed for a trip with the family members on 29.4.2018 and accordingly booked a railway ticket in the Train Yasobantapur-Kamakhya Express well in advance. The group comprises of three female members, one child and four male members. They are scheduled to travel on 29.4.2018 to catch the train at Cuttack Railway Station and waited in the plat form at the exact location where the display board was indicating about halting of particular coach to go to Gangtok and Darjeeling. But the train came and their coach did not stop near display place for which complainant and family members had to travel a lot to enter their B2/B4 coach. It is alleged that there is negligence of the Railway Staff in giving written information in the Display Board for which they suffered hardship and trouble. The complainant decided not to proceed over to the end of the train as the train was due to leave the station. In that event, the complainant having no other way entered into another coach of the train standing their in front and then proceeded to the concerned coach with the family members. While going inside the train, they have faced several obstruction by the co-passengers, as such, the complainant and the family members reached the respective coaches. By that they have already suffered a lot of body pain, mental and physical agony. Due to such negligence on the part of the opposite party, they have lodged a complaint in their Mobile number with the opposite party. After receiving the complaint, the opposite party sent messages that inconvenience caused to the complainant and others was deeply regretted. One day after, the railway authority intimated the complainant that his registered complaint has been attended to and it is now closed. Therefore, the complainant filed a complaint to pay compensation for that deficiency of service and pay compensation for the mental and physical agony they faced by them, besides litigation expenses in their favour.
4. The opposite party filed a written version denying the allegation of the complainant and there is also no cause of action arose. According to them, one Surya Kanta Debata, an outsourced staff has informed that the composition of the train compartment on the schedule date as received from the Central Enquiry, Khurda Road at 9.40 A.M was ENG-WLR-B1 and B8-PE-B9-A1 to A4-H1-B10 to B12 WLLR but as per the complainants, the coach position was like Eng.-A1 to A4-H1-PC-B12 which does not tally with the report of Surya Kanta Debata. They made enquiry and found that there is no deficiency of service on their part and they also submit that the sources of information in the display board as has been revealed by the complainants in their complaint petition in comparison with the enquiry report submitted by one R.N.Pani on 18.4.2019 is incorrect. As such, they have pleaded that there was deficiency of service on the party of opposite parties.
5. After hearing both the sides, learned District Forum has passed the following order:-
“ xxx The O.Ps are jointly and severally liable for the deficiency of service caused to the complainants as stated above. They are directed to pay compensation of Rs. 50,000/- to the complaints toward harassment and mental agony caused to them together with litigation cost of Rs.10,000/- to them in the interest of justice.
This order shall take effect within a period of 45 days from the date of receipt of copy of this order.”
6. Learned counsel for the appellant submitted that the complaint is defective as the complainants have travelled on different ticket. There is no compliance of Section 12(1)(c) of the Act in taking permission of the District Forum to file a complaint case. He submitted that the complaint is not maintainable in the facts and circumstances of the case. He also cited the decision of the Hon’ble Supreme Court of India in Rameshwar Prasad Shrivastava vs. Dwarikadhis Projects Pvt. Ltd. disposed of on 7.12.2018. He submitted that the complainant is not maintainable and impugned order be set aside.
7. Learned counsel for the complainant submitted that the complainants have already produced the ticket and the complaint is maintainable in view of the decision of Rajasthan State Consumer Disputes Redressal Commission, reported in Rajasthan State Road Transport Corporation vs. Sunil Kumar & ors, III (2005) CPJ 568. He submitted that due to the amendment made in Section 12(1)(c), permission of the Commission not necessary. Moreover he submitted on merit that the complainants have got a good case and accordingly the impugned order should not be set aside.
8. Considered the submission of both the parties and perused the record of learned District Forum.
9. It is admitted fact that the complainants have travelled in the train with their family members on 29.4.2018. It is admitted fact that they have boarded the train. The only allegation is that they did not find the coaches in which they are supposed to travel in the place where display board was kept. The opposite party have taken the plea that display board is not an intimation of the complainant of the respective coaches of the train while travelling in the station.
10. Be that as it may, the first and foremost point in this case is to decide whether the complaint is maintainable in the absence of compliance of Section 12(1)(c) of the Act.
11. We have gone through the decisions cited by both the parties.
Section 12(1) (c) of the Act is as follows:
“Sect.12. Manner in which complaint shall be made- (1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by –
- …….
- …….
- One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or ..”
12. The aforesaid provision of the Act has been amended in 2003 by incorporating all above provisions of the Section-12. Sub-clause (iv) of Clause (b) of Section 2 (1) of the Act got inserted by amendment made in 1993. The aforesaid provisions herein interpreted by Rajasthan State Consumer Disputes Redressal Commission in the following manner.
“11. The present case stands on different footing and would be covered by the words ‘for the benefit of all consumers so interested’ as are found in Clause (c) of Section 12 of the Act of 1986 and before these words, the word ‘or’ is there meaning thereby class action which has been recognized by the above amendment I altogether different one as for class action, the provisions of Rule 8 of Order 1 of the First Schedule to the CPC, 1908 should be applied subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or order of the District Forum thereon.”
13. The aforesaid view does not distinguish proper implication of Section 13(6) of the Act which stated about the application of clause (c) to Section-12 as is understood under Rule 8 of Order 1 of the First Schedule to the CPC. Further, Hon’ble Supreme Court of India in their judgment in Rameshwar Prasad Shrivastava vs. Dwarikadhis Projects Pvt. Ltd.(supra) at para 13 and 14 observed in the following manner.
“13. The language used and the text in Section 13(6) is clear that wherever a complaint I filed by a complainant in the category referred to in Section 2(i)(b)(iv), the provisions of Order 1Rule 8 CPC shall apply with the modification that reference to suit or decree shall be construed as reference to a complaint or order of the District Forum. The expression “with the permission of the District Forum” as appearing in Section 12(i)(c) must be read along with Section 13(6) which provides the context and effect to said expression. In our view Section 12(i)(c) and 13(6) are not independent but are to be read together and they form part of the same machinery.
14. It is however submitted that the expression ‘one or more consumers, where there are numerous consumers having the same interest” may be given widest possible interpretation so as to make the redressal mechanism easy, cost effective and efficacious. We are afraid we cannot accept such contention as the language employed in the relevant provisions is absolutely Civil Appeal No. 4802 of 2008 etc. Rameshwar Prasad Shrivastava & Ors. Vs. Dwarkadhis Projects Pvt. Ltd. & Ors. Clear and does not admit of any other interpretation. It was laid down by this Court in Babu Manmohan Das Shah & ors. Vs. Bishun as:-
“The ordinary rule of construction is that a provision of a statute must be construed in accordance with the language used therein unless there are compelling reasons, such as, where a literal construction would reduce the provision, to absurdity or prevent the manifest intention of the legislature from being carried out.” If we accept the submission of the appellants, the category of persons referred to in Section 13(6) of the Act with the aid of requisite permission in terms of Order I Rule 8 of the CPC could maintain a class action which may bind similarly placed consumers but those referred to in Section 12(1)(c) would be a different category who would not be bound by the provisions of Order I Rule 8 of CPC. In essence a separate category of persons as consumer/consumers would be entitled to maintain an action under Section 12(1)(c) of the Act. In our considered view that certainly is not the intent. If we accept the submission, we would be going against the express mandate of the statute. All that such interpretation would help achieve for some consumers is to maintain an action in a forum with higher pecuniary jurisdiction where, but for such collective cause of action, the action would not lie in such forum with higher pecuniary jurisdiction.
14. With due regard to above decision of the Hon’ble Apex Court where they have clearly held that Section 2(1) (b) (iv) should be read with Section 12(1)(c) and Section 13(6) of the Act. Accordingly, they have held that the complainant as understood under Section 2(1)(b)(iv) of the Act can file a complaint as per procedure as existing under Section 12(1)(c). Moreover, Section 13(6) of the Act has been specifically referred to the complainant as defined. The clause-IV under Section 2(1)(b) of the Act cannot be interpreted in isolation of Section 12(1)(c) of the Act. Therefore, the view taken by the Hon’ble Supreme Court of India being binding as law of the land is applicable to this case and we rely on the said decision.
15. In view of the above discussion, in the instant case, since permission has not been obtained from the learned District Forum and the complaint has been filed by the complainants, who travelled in different tickets for the same interest of all, the complaint is not maintainable. However, since the complainants have alleged to have suffered due to certain action as alleged and the O.P. asserts that it is a technical error which is not meant for claiming compensation, we hereby set aside the impugned order and remitted the case to the District Forum to consider the prayer made by the complainants under Section 12(1) (c) on the appellants by complainants and proceed with the complaint case and disposed of the same in accordance with law as per material provided before it within 45 days from the date of receipt of copy of this order. It is made clear that we have not expressed anything about the merit of the case. Both parties are directed to appear before the learned District Commission on 17.2.2023 to take further instruction.
16. The appeal is disposed of accordingly. No cost.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
