DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE NO.14/2007. Date of filing of the Case: 12.02.2007 Complainant | Opposite Parties | Sukanta Kr. Sinha S/O. Shri Swaminath Sinha 83, Bangaltuli Lane, Hyderpur, P.O. & Dist. Malda. PIN – 732101. | 1. | Chief Commercial Manager N.F. Railway, Maligaon, Guwahati, PIN – 781011. | 2. | Divisional Railway Manager, N.F. Rly, Katihar Div. P.O. & Dist. Katihar (Bihar). | 3. | Shri Biswajit Das Commercial Inspector, N.F. Rly, Katihar Division. P.O. & Dist. Katihar (Bihar). | 4. | Swapan Kr. Roy T.T.E., N.F. Rly, Katihar Division, P.O. & Dist. Katihar (Bihar). |
Present: | 1. | Shri S.K. Chakraborty, President | 2. | Smt. Sumana Das, Member | 3. | Shri A.K. Sinha, Member |
For the Petitioner : Swaminath Sinha, authorized person. For the O.P.s Samir Roy, Advocate Order No. 17 Dt. 22.08.2007 This is an application u/s 12 of the C.P. Act. alleging therein that the petitioner booked a ticket for Badarpur Junction from Malda Town Station under PNR No.242-2102793 in S5 –2 of Train No.4056 UP for 21.01.2006 read with PNR – 625-5025802 dated 22.01.2006 (Lumding Junction to Badarpur). He also booked a return ticket No.27130030 under PNR No.625-5020242 in S9 berth No.4 of Train No.4055 DN B.P. Mail for a journey from Lumding Jn. On 27.01.2006. On 28.01.2006 at about 01.00 hrs one TTE visited Coach No.S9 and he was awakened from sleep asked and to leave berth No.4 he occupied as per his ticket bearing No.27130030 / PNR No.625-5020242. On protest an altercation was started and the TTE demanded to pay fine of Rs.307/- using un-parliamentary and un-utterable languages with red eye which rather compelled him to pay the amount. On receipt of the amount the TTE issued an E.F.T. No.063220 dated 28.01.2006 where he has put his signature. Subsequently, the petitioner noticed that ticket No.13404 has been scribed in the E.F.T. although he was travelling with a ticket bearing No.27130030. He thereafter, lodged a complaint before the Chief Commercial Manager, N.F. Rly, Maligaon Guwahati which resulted in a departmental enquiry and he came to know the name of TTI issued the EFT as Swapan Kr. Roy. Inspite of his repeated persuations with the Railway Authority he could not collect the result of the departmental enquiry and this give rise to the occasion to file this complaint with the prayer to grant Rs.50,000/- for non stop physical, mental and monetary oppressions. O.Ps. contest the case by filing joint written version denying all material allegations and their specific case is that the petitioner was detected as irregular/illegal traveller and during the Special Checking the appropriate authority imposed fine of Rs.19 + Rs.250/- = Rs.269/- which was duly paid by him pleading guilty and the amount was realized and hence the petitioner is not entitled to any relief as prayed for. On pleadings of both parties the following points are required to be discussed at length and disposed of for the ends of justice. 1. Whether the petitioner is a ‘Consumer’ under C.P. Act.? 2. Whether the “service” of O.Ps. suffers from deficiency? 3. Whether the petitioner is entitled to get the reliefs as prayed for? DECISION WITH REASONS Point No.1 : Sec. 3 of the Consumer Protection Act. provides that the provisions of the Act of 1986 are in addition to and not in derogation of the provisions of any other law for the time in force. Sec.15 of the Railway Claims Tribunal Act., 1987, as has been contended on behalf of the O.P. completely bars the jurisdiction of the Court or the Authority in relation to the matter referred to in Sub Sec. (1) of Sec.13 of the Act of 1987. Sec. 3 of C.P. Act which is to the effect that the provisions of this Act are in addition to and not in derogation of any other law for the time being in force. When additional remedy is provided under the Consumer Protection Act., it cannot be said that the same cannot be avoided because of availability of other remedies or any other Law, in the absence of any provision therein. Sec.3 of the C.P. Act. gives an additional remedy to the complainant besides those available under the existing law. In this connection this Court is fortified with the observation appearing in 1 (2001) CPJ 422 at 424 and 2000(1) (CPR) 106. Under the circumstances it cannot be said that the Railway Tribunal Act. ousts the jurisdiction of this Consumer Forum. The petitioner has submitted the original Railway Ticket bearing No.B27130030 having PNR No.625-5020242 dt.27.01.2006 of train No.4055 from Lumding Junction to Malda Town. This being the position it cannot be said that the present petitioner Sukanta Kr. Sinha is not a consumer to avail the ‘service’ of the Railway Administration nor can it be said that he did not hire the services of the opposite parties for journey from Lumding Junction to Malda Town. This point is thus disposed of in affirmative. Point No.2 The terms ‘service’ and ‘deficiency’ have been defined in Sub Sec.2(1)(o) and 2(1)(g) of the Act. A bare reading of the definition of the term ‘service’ informs that it includes ‘service’ of any description which is made available to potential description which is made available to potential users. This definition of the term ‘service’ in this Act. is quite exhaustive and wide enough to embrace within its fold not only the Act. of rendering service of actual journey only, contracted for by and between the parties. It includes all such other acts to be done by the “provider of service” which are incidental to and necessary for the availment of the services hired by the hirer. The provider of service necessarily undertakes to provide to the hirer seating arrangement, risk-free journey and safe transportation of his belongings. The definition of the term ‘service’ clearly refers to such provisions of facility in connection with journey not only in the compartments of the train but also the access whereto is legally permissible after the hiring of the services for consideration through purchase of a ticket for undertaking the journey. The provision for accommodation and other life facilities are very much included in the definition of the term ‘service’ as given in the Act. Any fault, imperfection, shortcoming in the quality, nature and manner of performance which is required to be maintained by Railway Administration and rules made, instructions issued and directions given there-under and are in force at the relevant time or has been undertaken to be performed by them in pursuance of a contract or otherwise in relation to the journey by train by the passengers would fall within ambit of the term as defined in Sec.2(1)(g) of the Act. In the above perspective let us now see as to whether there was deficiency in rendering services by the Railway Authority/ particular T.T.I. to the present petitioner. It appears from testimony of P.W. – 2 that he has put his signature after reading contents of Ext.2 and it further appears that this P.W. – 2 (the petitioner himself) has further stated that he is a science graduate and is aware of the fact that Ext.2 was given to him after going through the contents of the E.F.T. by the T.T.I. and has stepped further to state that ticket No.13404 noted in Ext.2 (E.F.T.) did not belong to him. In this case Railway Authority has examined one Swapan Kr. Roy, T.T.I., N.F. Railway, Katihar Divn. and has admitted that after going through the contents of E.F.T. (Ext.2) the passenger has put his signature as Sukanta Kr. Sinha. In course of his examination in chief this O.P.W. – 1 has admitted, “This E.F.T. along with original ticket were handed over to the said passenger, Ext. – 1 was in possession of the valid ticket owner.” Now the question arises if Ext. – 1 was handed over to the valid ticket owner, then it is not understandable as to why ticket no. has been written in E.F.T. (Ext.2) as 13404 instead of ticket No.27130030 appearing valid ticket vide Ext.1. In course of his cross-examination Mr. Roy (O.P.W. – 1) has stated, “I was on duty from NJP to MLDT in 4055 DN, Brahmaputra Mail. I was on duty in upper class (AC 2 tier), AC 3 tier and was entrusted to look after the amenities of the passengers of the entire train.” Now the pertinent question is why this Mr. Roy has not filed any documentary evidence in support of his contention that he was on duty in upper class on that date. It further transpires for the testimony of O.P.W. – 1 at Page – 3. “one Sukanta Kr. Sinha has put his signature on E.F.T. It is a fact that after completing a E.F.T. it was handed over to the passenger”. This being the admitted position by O.P.W. – 1 himself how could he issue E.F.T. (Ext.2) noting therein ticket No.13404 instead of the ticket no. appearing in Ext.1 which has been referred to hereinabove. On scrutiny of testimony of O.P.W. – 1 supra it does not appear understandable why a bonafide passenger was charged extra fare and fine who was occupying berth No.4 in Coach No.9 under PNR No.625-5020242 vide Ext.1. It further appears from the testimony of O.P.W. – 1 himself at Page – 4 that one Mr. G.P. Das was on-duty T.T.E. of Coach No.9 then a suspicion arises as to how this O.P.W. – 1 has issued E.F.T. and also conversely raises a suspicion whether Mr. G.P. Das, who was exclusively meant for Coach No.9, was physically present on spot at the time of issuing E.F.T. (Ext.2). This Mr. Roy has been constrained to admit, “It is a fact that I have been punished with stoppage of my increment for six month”. In order to appreciate the merits of the arguments advanced by both the parties this Forum thought its prudent to refer the relevant points noted beforehand and to refer the matter again will merely be repetation of the facts and circumstances. Thus, in essence, this Forum has reason to believe that O.P.W. – 1, has acted which is contrary to the normal procedure and seems to have acted in gross violation of normal rules & procedure of Railway Administration. The argument advanced on behalf of the O.Ps. that the petitioner has acted illegally, in our opinion is quite misconceived and proceeds on wrong interpretation of Railway Claims Act. Thus before proceeding further we would like to observe that the facts and circumstances of the present case and the overwhelming positive evidence placed by the complainant and O.P. and the documentary evidence as well as our record irresistibly and conclusively establish the relationship of ‘Consumer’ and Provider of ‘service’ for ‘consideration’ between the petitioner and opposite parties respectively and proved gross negligence and ‘deficiency’ in rendering ‘service’ to the present petitioner by none-else but Mr. Sawpan Kr. Roy, T.T.I. N.F. Railway, Katihar Division, (O.P.W No.1). Admittedly, accordingly to O.P.W. – 1 himself he has been punished with stoppage of next increment for next 6 months which is outcome of the definite complaint lodged against Mr. Roy before the authority by the present petitioner in as much as O.P.W. – 1 has failed to state what other reason could be to treat him by the authority as delinquent. In nutshell, we can recapitulate the gross violation of normal procedure adopted by Mr. S.K. Roy in dealing with the petitioner (who was nevertheless a bonafide passenger by issuing E.F.T. and his failure by production of documents about his authority to charge excess fare & fine (Ext.B) from a passenger) from Coach No.9 who according to own admission, was meant for checking upper class coaches of Brahmaputra Mail which has been mentioned hereinabove. Now, coming to the question who should be held responsible for such deficiency. We have discussed hereinabove in details that the Railway Authority authorized Mr. S.K. Roy to perform his duty in coaches meant for AC 2 tier and AC 3 tier on the relevant date. That he performed his duty exclusively meant for him in the above coaches has not been proved nor he has taken slightest endeavour to prove the same; on the contrary, he has stepped further to cause harassment to a bonafide passenger of coach No.9 and in that view of the matter this Forum has, after anxious consideration of the matter, thinks it prudent to conclude that not the Railway Authority but Mr. S.K. Roy should be personally held responsible for rendering deficient service to the present petitioner. Now, coming to the grant of relief to the complainant in this case we should estimate the compensation on the basis of facts and circumstances which we have taken into consideration before hand about the shock, sufferings, mental agony and humiliation in presence of so many co-passengers for no-fault of his own. This point is thus disposed of in the affirmative. Point No.3 Taking into consideration the above facts and circumstances the petitioner do get a decree for Rs.10,000/- on account of his harassment, mental agony and humiliation in presence of so many co-passengers. Proper fees have been paid. Hence, ordered, that the Malda D.F. Case No.14/2007 is allowed on contest against Swapan Kr. Roy, T.T.I., N.F. Railway, Katihar Division, (O.P. No.4) and stands dismissed against O.P. Nos. 1, 2 & 3 (Chief Commercial Manager N.F. Railway, Maligaon, Guwahati, PIN – 781011, Divisional Railway Manager, N.F. Rly, Katihar Div. P.O. & Dist. Katihar (Bihar) & Shri Biswajit Das,Commercial Inspector, N.F. Rly, Katihar Division. P.O. & Dist. Katihar (Bihar)). The petitioner do get compensation of Rs.10,000/- (Rupees ten thousand) only which is to be paid within a period of 60 days from the date of receipt of the copy of this order failing which the amount shall carry interest @9% per annum from the date of this order. At the first instance the aforesaid amount shall be paid to the complainant within the stipulated period by Chief Commercial Manager N.F. Railway, Maligaon, Guwahati, PIN – 781011 & the said Chief Commercial Manager shall, however, realize such amount with or without further amount incurred in connection with unavoidable litigation from the erring officer Swapan Kumar Roy, T.T.I. N.F. Railway, Katihar Divn. Let copy of this order be given to the both parties free of cost at once. Sd/- Sd/- Sd/- Sumana Das A. K. Sinha S.K. Chakraborty Member Member President D.C.D.R.F., Malda D.C.D.R.F., Malda D.C.D.R.F., Malda | 
