This appeal is directed against the judgment and Final Order dated 26.06.2019 delivered by Ld. DCDRF Jalpaiguri in connection with C.C. No 44 of 2018.

                      The appellant of this appeal registered a Consumer complaint U/S 12 of CP Act, 1986 against Station Director, NJP, NF railway and G.M. of NF Rly. The complaint case in nut shell is that the Complainant and his five companions had Purchased E-ticket by PNR No. 651-3853815 in Dn Padatik express for their Journey to Sealdah, brooding at NJP railway Station and their seats was allotted to seat No. 8, 9, 12, 30, 32 and 72 in B-1 coach.

That the complainant was suffering from severe Migraine and sinusitis thus had booked the lower berth.

                     That the Complainant and his co-passengers had boarded the train from New Jalpaiguri station on June 8, 2018, at 8:55 PM with confirmed reservation in B-1 coach. Complainant discovered that the reserved seats B1-9 & B1-12 were already occupied by unauthorized passengers. That the unauthorized passengers created a lot of nuisances and caused inconvenience to the complainant as well as to his co-passengers.

                  That the complainant tried to complain to the on duty TTE or any other railway official but no one could be found but somehow the complainant manages to intimate the entire matter to on duty TTE and after verifying the reservation chart the on duty TTE gave the confirmation of the genuineness of the tickets/ berths. Besides the TTE asked to wait for some time and the TTE also assured the complainant that the problem will be resolved at the earliest.

                That after waiting for a long time the complainant again asked the TTE to resolve the matter. Then the on duty TTE tried to make the unauthorized passengers understand to vacate the berths.

                That after a long argument the unauthorized passengers did not move/vacate the berths. As SOLEMNLY AFFIRMED Unauthorized passengers were adamant with their decision, the on duty TTE assured the complainant that he will intimate the railway force of MALDA Town and thereafter the problem will be resolved.

That when the train approached Malda Town station, the on duty TTE didn't turn to the complainant for allocation of berth, meanwhile the TTE changed and another TTE took the charge. Again, the entire matter was intimated to the TTE who got the charge of the train from Malda Town was apprised by the complainant for such inconvenience.

That the TTE who took the charge from Malda Town also could not remove the unauthorized passenger from the berth hence the TTE was unable to provide appropriate/allotted berth during the full journey.

 That after struggling for a long time when the complainant did not get the matter solved, the complainant had lodged the written complain in suggestion-cum-Complain Book vide serial no. 631566 and remark/action taken by CIT/SDAH which speaks for itself and makes our claim fairly clear & justified. Complainant was the sufferer due to the gross negligence of the OPs as the OPs were bound to provide the reserve berths which were allotted to the complainant and his co passengers.

 That the Opposite parties deliberately & intentionally failed and neglected to complete their duties and unable to provide the berth for sleeping or seating which is a great deficiency of service on their part.

Deficiency in service on the part of the service provider has to be tested on the anvil of Sec. 2(1) (g) of the Consumer Protection Act, which means: any fault, imperfection, shortcoming or inadequacy in the quantity, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

That the complainant respectfully states and submits that from the aforesaid acts and conducts of the Ops, it is crystal clear that there is a grave deficiency in service and unfair and illegal trade practice of the Railways and for which the OPs are severally and jointly liable and responsible.

Both OP No. 1 had 2 contested the dispute by tiling written version and denied all the material allegations of complainant regarding negligence in duty, dereliction of duty of railway employees, deficiency of service on their part etc.

The case of the of sides is that the complainant and five other passengers booked tickets through IRCTC website E-ticket, PNR No. 6513853515 of train no. 12378 for travelling to Sealdah from New Jalpaiguri railway station on 08.06.2018 with booking status R.A.C which was confirmed after preparation of final reservation chart as berth nos. 8,9,12,30,32 and 71, in coach no. B1 of Padatik Express. On-duty TTE noticed that one family with one infant was travelling at berth Nos. 9 and 12 of coach no. B/1 in Padatik Express with electronic reservation slip having PNR No. 6612828237 from New Alipurduar to Sealdah.

On enquiry it was found that E-Ticket produced by the said passengers shows no status room as on 08.06.2018. As per Railway. Booking rules, the names of the said passengers were not found in the reservation chart who might have boarded the train in between New Alipurduar and New Jalpaiguri station. Said passengers against PNR No. 6612828237 were requested to vacate the berth by the TTE/Conductor of Coach No. B1 but the said passengers rather refused to vacate the berths. On-duty TTE communicated a message to the Commercial Control Room, Katihar for sending RPF/GRPF to attend the train at Malda station for evacuating said unauthorized passengers and for realization of penalty charge as per Rule. On arrival at Malda Town station at about 00:35 hours GRP/RPF personnel attended the coach but no good could be done owing to agitation by the other co passengers since the said person was travelling with an infant and a sick lady. In the meantime, the train left Malda Town Station after its schedule stoppage of 5 minutes and accordingly said unauthorized passengers also proceeded further. In such awkward situation the on-duty TTE tried to provide an alternative berth in lieu of the reserved berths, but due to heavy rush no vacant berth was found a route. The silence of other passengers travelling with the complainant against E-ticket PNR No. 6513853515 speaks eloquently that the opposite parties were negligent in performing their duties. On-duty railway staff tried to resolve the problem of the complainant and others and non-providing of earmarked berths to the complainant is not intentional but consequential. The Chief Ticket Inspector, Sealdah also remarked on the body of the complaint that since berth was available between New Jalpaiguri and Sealdah, berth No.07 of the Coach No. B1, earmarked for the on-duty TTE was allotted to the complainant which speaks that sufficient steps were taken by the Railway department to solve the problem created by third party. So, there is no negligence on the part of the Railway authority. Detail of said unauthorized passengers was further investigated and was found that he also booked ticket against PNR No. 6612828237 on 23.3.2018 for journey on 8.6.2018 by Padatik Express with confirmed berth no. 9 and 12, in Coach No. B/1. Said PNR was seized by Chhatrapati Shivaji Terminus, PRS location, Mumbai, Central Railway, on 7.5.2018 as per PRS system. It is clear that there was no confirmed reservation against the said PNR and thus the name of the said occupant was not endorsed in the reservation chart. So, the case may be dismissed.

After Recording evidences and on completion of hearing, by forum has held that on the part of railway authority there was lack of taking proper care to bonafide passengers, and on account of breach of agreement, dereliction of duty of ITE and Protection staffs, the complainant had to suffer mental Pain and agony including harassment and for that reason without awarding any monetary compensation to the consumer (complaint) Ld. forum was pleased to impose responsibility upon the Superior authority NF railway to take disciplinary action against the on duty staffs who were responsible for such untoward incident.

The complainant was not satisfied with the order of Ld. Forum and preferred this appeal on the grounds that Ld. Forum has failed to compensate the loss of the appellant due to the act of respondents comes within the purview of The Provisions of CP Act,1986 The appeal was registered and if was admitted for disposal and delay in filing the appeal was condoned on covid ground.

Both the respondents recorded their presence through Ld. Advocates, she appellant conducts the hearing of his case Personally while the Respondents conducted the hearing through Ld. Adv.Mr. Ajay Chowdhary.

 Decision with reasons,

In the course of hearing the appeal Ld. Adv. of the respondents mentioned that on 08.06.2018 after departure of the train no. 12378 from NJP, the on duty ticket checking stuff (TTE) noticed that one family with one infant travelling in berth no. 9 and 12 with an e-ticket vide PNR No. 6612828237 Ex New Alipurduar to Sealdah and on enquiry it was found that the ticket produced by the said passengers occupying the said berth showing as "NR" (No Room) and also their names were not found in the reservation chart who might boarded the train in between New Alipurduar and New Jalpaiguri (NJP) and thereafter said ticket checking stuff had requested to said passengers to vacate the berths but the said passengers most adamantly refused to vacate the berths.

That thereafter TTE communicated the matter to commercial control room Katihar and requested for sending RPF/GRP to attend the train at Malda Station and evacuating the said unauthorized passengers and to impose penalty as per Railways Rules.

That thereafter on arrival at Malda Town Station at about 00.35 Hrs. The GRP/RPF personnel attended the coach but no good could be done due to massive agitation by the other co-passengers since the said unauthorized passengers was travelling with an infant and a sick lady and situation became beyond the control of the railway authorities.

In support of his argument Ld. Advocate relies upon the decision & Hon’ble apex court in the case of ASST Commissioner (ST) vs M/S Satyam Shivam Pvt. ltd. in SPL leave petition No. 21132/2021.

                    After going through the said decision, it is revealed that in that case, the writ petitioner had no intention to evade the tax, as he could not take the goods to its destination in time by the extra ordinary situation was beyond his control.

But here in this particular case, the railway TTE had the option to make arrangement of an alternative berth of the complainant in the same 3 tire A/C coach or other A/C coach.

Railway authority has attempted to prove that no alternative berth could be traced out for the accommodation while the Rly authority of Sealdah falsely claimed that B-1-7 berth was Provided to the complainant.

Ld. Advocate of the appellant argues that he has no whispering about the observations and findings of this forum in the Final order. He only disagrees with order to the score that no monetary compensation was awarded as he was the worst sufferer.

After hearing both fides, the bench comes to a conclusion that the plea taken by the Railway Authority is not tenable in the eye of law in consideration of the fact that other passengers took side of the lady and infant who were occupying berth nos. 9 and 12 of coach No. B/1 unauthorizedly and illegally. It is inherent laches and negligence for the Railway Authority, but not of bona fide passengers. Under Indian Railways Act, those passengers are liable to pay fine and the Railway Authority should force them to vacate berth.

Commotion amongst the passengers as plea taken by the Railway Authority for their inability to evict the passengers unlawfully occupying berth nos. 9 and 12 of Coach B/1 are not tenable in law. Those unlawful passengers have at all no right to enter into 3 tier A.C, Coach No. B/1 of Padatik Express without having any valid ticket. It is the dispute in between the unauthorized/illegal passenger and fake authorized agent who has cheated them, but the bona fide passengers will not suffer for the mala fide act of the fake authorized agent. It is curious enough that the passenger having no name in the Railway Reservation chart in coach No. B/1 of Padatik Express has got access in the compartment. More-so, on-duty TTE cannot ask the bona fide passenger that they will not be able to a seat to illegal passenger for having no bona fide ticket at berth nos. 9 and 12.

The bona fide passenger had suffered loss and mental injury for not allowing them to sleep in their reserved berth from the time of boarding till arrival at Sealdah. In this regard the complainant has relied upon the decision of Ram Leela Maidan Incident-Vs Home Secretary & others (suo motu Writ Petition (Crl.) no.122 of 2011 where it has been held by the Hon'ble Supreme Court on 23rd February, 2012, that an individual is entitled to sleep as comfortably. Sleep is essential for human being to maintain the delicate balance of health necessary for his existence and survival. Sleep is, therefore, a fundamental and basic requirement without which the existence in life itself would be in peril. To disturb sleep, it would amount to torture which is now accepted as violation of human life. It is evident that right of privacy and right to sleep have always been treated to be a fundamental right like a right to breathe, to eat, to drink etc.

The observations of Ld. forum appear to be convincing, appreciable having no misconception of law and Fact.

Ld. Forum observed that the claim of the complainant to compensate for injury and agony suffered by him was substantive claim and tenable in law.

On the other hand, Rly officials who were involved in this untoward happening also could not adopt coercive measure upon the unauthorized Passengers with sick women and infant to throw them out from the Rly coach on humanitarian ground.

But they have bailed to discharge their duties to find out an alternative berth to a bonafide Passenger Who was deprived to take seat and sleep for the entire Journey From NJP. to Sealdah.

The complainant has no fault, he was a bonafide passenger and he was deprived the proper service from the rly authorities though he has paid the price of the ticket at the time of booking.

Certainly, rly authority on duty had no malintent to harass a bonafide passenger but some latches was there on their part not to sort out the problem the complainant faced and the inconvenience endured in this night long journey from NJP to Sealdah and for that reason a token amount of compensation was imperative to be awarded in favour of the complainant so that in future no other bonafide passenger in rail journey shall have to suffer.

Ld. Forum has failed to take notice in this aspect of proper or token monetary compensation in favour of the Complainant. Ld. Forum on the other hand has ask the superior rly authorities to take disciplinary action against all the on-duty rly TTEs of Coach No. B1 in Dn Padatik Express on 08.06.2018 and to submit the report within 3 months failing which the GM of NF rly was asked to pay rs.10,000/- in dist. Legal Aid account.

During the course of hearing the rly authorities could not apprise this bench whether the order of Ld. Forum could yet carried out or not. So, the compensation a little amount of Rs.10,000/- as token in nature may be awarded in favour of the complainant/ Appellant.

Hance it is ordered,

That the appeal be and the same is allowed partly on contest without cost. The Final Order of the Ld. DCDRF, Jalpaiguri dated 26.06.2019 in CC. No. 44 of 2018 is modified to the effect that the Respondent No1 & 2 (OP of the consumer case) shall have to pay Rs.10,000/- as compensation token in nature to the complainant/ appellant for sufferance mental pain and agony during his journey on 08.06.2018 within Two months from the date of receiving the copy of Order. Failing which interest @6% PA shall be imposed over the compensation amount. The remaining ordering portion in the Final Order of Ld. Forum shall remain intact.

Let a copy of this order be supplied to the parties free of cost and same to be communicated to Ld. DCDRF, Jalpaiguri.