Date: 03-06-2015
Sri Debasis Bhattacharya
This appeal emanates out of Order dated 17-12-2013, passed by the Ld. District Forum, Unit-II, Kolkata in C. C. No. 348/2012, by which the complaint case has been allowed on contest against the OP. Being aggrieved by and dissatisfied with the said order, OP thereof has preferred this appeal.
Case of the Complainant, in short, is that despite having valid reserved tickets, his mother, since deceased, and he had a harrowing experience while travelling in 13163 Up Hatey Bazarey Express on 05-09-2012, having confirmed reservation in Coach No. S/5, Berth Nos. being 57 and 58, respectively, but their seats were occupied by daily passengers. Her ailing 70 year old mother almost became unconscious in the train because of unabated smoking by fellow passengers and ultimately died after few days. In absence of any TTE in the compartment till Bandel Station, no one cared to listen to their frantic pleadings to stop smoking. In fact, his verbal complaint to the TTE fallen on deaf ears and he expressed his helplessness to come to his aid in any manner. Although a written complaint was lodged with Senior Dy. General Manager, Eastern Railway through email, there was no response from their side. Hence, the case.
Case of the OP, on the other hand, is that that the instant complaint lodged for compensation against the Appellant falls under the exclusive jurisdiction of the Railway Claims Tribunal established under the Railway Claims Tribunal Act, 1987. Section 15 of the said Act ousts the jurisdiction of all other Courts and Tribunals. Thus, this present case is hit by Sections 13 and 15 of the R.C.T. Act, 1987 and so, it is not maintainable. Further, medical papers annexed to the complaint do not justify Complainant’s allegations that his old ailing mother became seriously sick/almost unconscious due to smoking of unauthorized passengers in the train compartment on that day. Her medical papers sufficiently prove that she was suffering from various ailments. The Complainant deliberately withheld the death certificate; probably the dead body was not placed for PM examination to ascertain the real cause of her death. The Complainant has also not furnished any report from a competent expert Medical Officer or Practitioner to prove his case. There was no negligence or deficiency in service on the part of the OP, as alleged by the Complainant.
The complaint case was decided in favour of the Complaint on contest. By its impugned order, the Ld. District Forum directed the OP to pay Rs. 50,000/- as compensation and cost to the tune of Rs. 10,000/- to the Complainant.
Point to be considered in this appeal is whether or not the impugned order suffers from any incongruity.
Decision with reasons
Ld. Advocate for the Appellant disputed the maintainability of the case stating that in terms of the provisions of the RCT Act, 1987, dispute of this nature cannot be adjudicated before the Consumer Fora. He further argued that the alleged incident drafted in the petition of complaint is a heinous effort on the part of the Respondent to siphon off money from public coffers on the pretext of allegations which are nothing but cock and bull stories. The Appellant has led cogent and convincing evidence on oath through the concerned TTE who was on duty and on board of the concerned train. However, the Ld. District Forum erred in overlooking the bona fide averments of the concerned TTE and based its order on the basis of a CD produced by the Respondent, although the same does not have any evidentiary value and credence in a consumer case like the one in hand. In view of wrong perception, the Ld. District Forum has grossly violated the rule of law and hastened to pass the impugned order in a cryptic and emotive manner resulting in miscarriage of justice. Therefore, the impugned order be set aside.
Ld. Advocate for the Respondent, on the other hand, has submitted that the Appellant is visibly reluctant to ensure that unauthorized travellers do not have any access in reserved compartments resulting which bona fide passengers are deprived of the facilities they are entitled to. Ld. Advocate further stated that it would be evident from the discharge summary dated 26-07-2012, issued by Fortis Hospital that her mother was discharged from the said hospital in stable condition. It would further be evident from the prescription of Dr. Sahadat Hossain dated 06-09-2012 that her mother became ill because of excessive inhalation of smoke during train journey and the literature issued by Fortis Hospital clearly cautions that even passive smoking is dangerous for lung diseases. The concerned TTE, in his reply to the questionnaire of the Respondent, admitted that at Sealdah station, he first entered the Coach No. 3 and after completing his job, he entered S/4 coach and ultimately coach No. S/5, in which he was travelling with his mother. It is also admitted by the concerned TTE that there are 72 seats in reserved compartments. There was no possibility of him to complete ticket checking of two coaches before an hour. As such, it is palpably clear that the concerned TTE was initially not present in Coach No. S/5. His testimony about the state of affairs of the concerned coach is absolutely false and fabricated and not maintainable. As the TTE remained aloof till the train entered Bandel Station, unauthorized daily passengers who forcibly occupied their seats, continued smoking totally ignoring the requests of the Respondent and his ailing mother, and such excessive smoking proved fatal to her mother, who was suffering from lung disease and some other diseases and died on 26-09-2012. Such casual and negligent attitude/ deficiency in service on the part of the Appellant is totally unacceptable and as such, the appeal is liable to be rejected with higher compensation payable to the Respondent. Ld. Advocate further argued that in paragraph No. 2 of the W.V., it has been stated that the Union of India should have been a necessary party as per CPC. However, as per clause 26(1) of the Consumer Protection Regulations, it is prohibited. Further, as per the provisions of the Consumer Protection Act, 1986, the complaint has been filed against the service provider. In support of his defence, Ld. Advocate has referred to a decision of the Hon’ble National Commission in the matter of General Manager, South Eastern Railway & Anr. vs. Anand Prasad Sinha & Ors., decided on 28-07-1989.
First, let us discuss the maintainability issue as raised by the Appellant. So far as the applicability of Section 15 of the Railway Claims Tribunal Act, 1987 is concerned, we cannot agree with the contention of Ld. Advocate of the Appellant because this section bars jurisdiction of other courts only “in relation to the matters referred to in sub-sections (1) and (1A) of section 13”. For proper illustration, contents of Section 13 is reproduced hereunder:-
“13. Jurisdiction, powers and authority of Claims Tribunal - (1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of Railway Act,-
(a) relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for-
(i) compensation for loss, destruction, damages, deterioration or non-delivery of animals or good entrusted to a railway administration for carriage by railway ;
(ii) compensation payable under Sec. 82-A of the Railways Act or the rules made thereunder; and
(b) in respect of the 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 railway.
[(1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Sec.124-A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the Railway Administration under Sec. 124-A of the said Act or the Rules made thereunder.]
(2) The provision of the [Railways Act, 1989] and the rules made thereunder shall, so far as may be, be applicable for inquiring into or determining any claims by the Claims Tribunal under this Act.”
Plain reading of Section 13 clearly indicates that objection of the Appellant is totally misplaced. The instant case is in no way hit by this Section mentioned by the Appellant as the case of the Respondent does not fall under any of the categories mentioned in the Section. In view of this, we are of view that the jurisdiction of the Consumer Fora is not barred by virtue of the provisions of Section 15 of the Railway Claims Tribunal Act, 1987.
Next, let us discuss the other issues raised by the Appellant in its defence. The Appellant has bluntly denied any deficiency in service on its part and asserted that there is no iota of truth in the allegations of the Respondent. It has primarily banked upon the testimony of its ex-TTE, Mr. Samir Kumar Roy, who was in charge of the Coach Nos. S/3, S/4 and S/5 of 13163 Up Sealdah-Saharsha Hatey Bazare Express from Sealdah station to Malda Town station on 05-09-2012 to rebut the allegations of the Respondent. But, there are sufficient reasons to believe that such testimony is not reliable one.
It is the settled position of law that self-contradictory statements have no probative or evidential value at all before the eye of Law and this is exactly what has been done by the concerned TTE. It is stated by the concerned TTE in para 6 of his Evidence-in-Chief that ‘no passenger having valid reserve tickets complained me about presence of unauthorised passenger in those coaches.’ Again in para 8 of the said Evidence-in-Chief, he asserted that, ‘the complainant did not complain to me regarding occupation of his and his mother’s reserved seats or of creating discomfort to him and his mother by making and causing any health hazards to them in coach no. S/5 leaving Sealdah on 5.09.12’ and in para 9 of his testimony, he has stated that, ‘the complainant did not approach me seeking any help or assistance’. However, in para no. 10 of his said Evidence-in-Chief, he completely retracted his earlier statements and stated that, ‘….other passengers except the complainant and his mother performing journey in that train on the same date did not also make any complain to me during my duty hours about unauthorized passengers presence or of causing nuisance by smoking in the coach’. It clearly goes to show that unwittingly or otherwise, the concerned TTE also admitted the fact in para 10 of his testimony that complaint was indeed lodged with him by the Respondent and his mother, since deceased.
Moreover, fact remains that the concerned TTE was in charge of three coaches, namely, S/3, S/4 and S/5 on 05-09-2012. Naturally, it was practically impossible for him to keep a close tab on unauthorized entry and exit of daily passengers inside all the three coaches simultaneously. Since the said train has a scheduled stoppage at Naihati Jn., no matter whatever be the claim of the concerned TTE, whether any unauthorized passenger got down from S-5 coach over there behind his back or not cannot be said with certainty. Same is the case with illegal activities like smoking inside train compartments.
Lastly, if we consider the predicament of the concerned TTE from a practical perspective, it is not at all difficult to appreciate that he was hardly in a position to speak his mind before the Ld. District Forum; after all, any admission of unsavoury truth would have proved his dereliction of duty.
Taking all these factors into consideration, we find no cogent ground to accept the deposition of the concerned TTE as gospel truth.
On the other hand, in order to prove his case, the Respondent has submitted a CD before the Ld. District Forum containing pictures/video taken on 24/04/2013 of the same train in which he was travelling from Sealdah to Harishchandrapur in Coach No. S-7 (Compartment No. 06209), berth No. 40, Ticket PNR No. 6219242008 to drive home his allegations as stated in the petition of complaint. The said CD is stated to contain pictures showing (1) presence of unauthorized persons inside reserved train coaches and helplessness/torment of genuine ticketholders at the hands of unauthorized passengers, (2) smoking of cigarettes/bidis inside train compartment by passengers, and (3) conversation with Mr. D. Sharma, TTE in-charge of the concerned coach who too allegedly confessed his helplessness to control the situation.
Although the said CD was submitted along with the Affidavit-in-Chief by the Respondent, the Appellant did not pose a single question to confront the Respondent by asking relevant questions about the CD and quite consciously avoided touching upon the issue. However, most surprisingly, as an after-thought perhaps, Ld. Advocate for the Appellant choose to rake up the issue before us at the time of hearing with the contention that the same does not have any evidentiary value and credence in a consumer case like the one in hand. We, however, see no logic in such argument for the simple reason that once a material proof is exhibited, it carries immense evidential value. Of course, the other side is always at liberty to challenge its authenticity, in which case, the onus of proving the same falls upon the party who relies upon such piece of evidence to prove his case. However, if the other side remained silent, it can reasonably be presumed that they have no objection about the authenticity of the said piece of evidence.
The menace of presence of unauthorized passengers inside reserved compartments of trains is a Pan India phenomena and barring a few notable exceptions, it is a common sight in almost all the trains. The strong denial of the Appellant notwithstanding, truth cannot be kept under wrap for long. It is not that the Railway authorities are not alive to the situation and resultant harassment of bona fide passengers at the hands of such unauthorized persons. However, thanks to sheer negligence and lack of wherewithal on the part of the Railway authorities to rein in such hazards, the situation is deteriorating day by day.
So, there appears to be no reason to disbelieve the allegation of the Respondent in this regard.
In the case of Union of India & Ors. Vs. Sanjiv Dilsukhraj Dave & Anr., reported in 2003 CTJ 196 (CP) (NCDRC), the Hon’ble National Commission observed as under:-
“A major responsibility cast on the TTE in addition to examining the tickets is that of ensuring that no intruders enter the reserved compartments…………..This is certainly a gross dereliction of duty which resulted in deficiency in service to the Respondents.
The price difference between the unreserved ticket and a reserved ticket is quite high and the traveling public who buy a reserved ticket would expect that they can enjoy the train journey with a certain minimum amount of security and safety……We have entered the 21st century and we cannot carry on our daily life in the same age old fashion with bearing brunt of indifferent service provided by public authorities like Railways. People expect in the 21stcentury a modicum of efficient and reliable service, which provides at least safety of person and property while traveling in reserved compartments”.
Undisputedly, the Respondent and his mother, since deceased, were travelling in a reserved coach and it was the duty of the TTE to ensure that no intruder can enter and stay in the reserved compartment. Since apparently there was a failure on the part of the TTE to prevent entry of unauthorized person inside the coach, the Ld. District Forum below was right in holding the Appellant liable for deficiency in service in this regard.
True, we have not come across any cogent documentary proof from the side of the Respondent, viz., death certificate, PM report, certificate from expert Medical Officer/Practitioner to establish alleged correlation between the untimely death of his mother and massive smoking of passengers of 13163 Up Sealdah-Saharsha Hatey Bazare Express on 05-09-2012, but documents on record, particularly the prescription of Dr. Sahadat Hossain, Ex-Medical Officer of SHIS Hospita, Malda, dated 06-09-2012 sufficiently establish the fact that mother of the Respondent developed Dyspnea (shortness of breath) due to excessive inhalation of smoke during train journey. Therefore, in our considered opinion, the Appellant cannot evade its responsibility for the deterioration of health of the mother of the Respondent during train journey because of excessive smoking of cigarettes/bidis by unauthorized daily passengers inside the train compartment.
Considering the entire matter in totality, we are of view that there is no infirmity with the impugned order, except some modification as below.
In the result, the appeal succeeds in part.
Hence,
ORDERED
that the appeal be and the same is allowed in part against the Respondent. The impugned order is modified as under:-
The Appellant/OP shall comply with the order within 30 days from the date of this order, i.d., punitive damages @ Rs. 500/- per day shall have to be paid by the Appellant/OP to the State Consumer Welfare Fund, West Bengal from the date of this order till compliance of the order in toto. Other parts of the ordering portion will remain intact.
