FINAL ORDER/ JUDGEMENT

Samaresh Kumar Mitra, Member.    

  The case of the complainant is that the petitioner is an educated law abiding peaceful gentle man and he purchased two railway tickets being No.94941358 & 94941356 from the ticket counter of Chinsurah Railway station under Eastern Railway. The tickets were confirmed tickets from Delhi to Kotdara in Mussourie Express being train No.14041. As the tickets were purchased from Chinsurah Railway station under Eastern Railway so both of them were made party for the deficiency of service of the northern Railway. The fact remains that the complainant was going from Delhi to Kotdara with sleeper class reservation up to Kotdara station accompanied by his wife, son, aged ailing mother-in-law. After boarding into train in Delhi he found that his reservation sets being nos 49/52/41/44 all allotted to lower berths to the petitioner were preoccupied by other passengers who claimed that those seats were allotted by the railway with same reservation number in coach no.S-4. The petitioner showed his valid reservation tickets but the passenger did not leave the seats although his ailing mother- in- law could not stand. Then the complainant approached the concerned T.T. and requested him to make arrangement of their berths but the T.T. did not pay heed, rather advised to get down and purchase new tickets without taking any action to provide any berth. As a result the complainant alongwith family members compelled to stay on the floor of the berth and compelled to get down at Nazibabad instead of Kotdara long before his destination.  The complainant further stated that the T.T. attendant did not make any endorsement in the confirmed reservation ticket of the petitioner and not taking any endeavor to make arrangement of berths and this type of failure of non checking the un authorized person or depriving the genuine right of the valid ticket holder tantamount to negligence, deficiency of service and unfair trade practice. Having no berth at night including a sick aged lady and a child of 7 years with two ladies compelled to take shelter in the dirty floor of the coach in spite of having confirmed railway travel ticket & enduring the kick of the passenger and swallowing the filthy languages and insulation of the other passengers which caused serious humiliation of all the members of the petitioner. Subsequently the petitioner received massage that the train service up to Kotdara has been cancelled and the train would go up to Nazibabad and that was also extra punishment of the petitioner and he was bewildered and helpless and puzzled at the situation. The most funny thing was that before half an hour of the completion of journey towards Nazibabad the said T.T. came hurriedly and asked the Tickets of the petitioner and in the surface of the tickets endorsed new reservation No.S-4 No 67&68 and in the another ticket No.56&29 up to Nazibabad and told us to seat there. But the petitioner was not interested to sit there as he finished his journey up to Nazibabad instead of Kotdara with extreme distress and without reservation lying on the floor.

 After coming back the complainant wrote a letter to the chief commercial Manager, Eastern Railway, Kolkata on 29.11.2016 conveying everything, but no reply.  Getting no reply he wrote another letter to Chief Commercial Manager, Eastern Railway, Kolkata on 20.01.2017.

Subsequently another complaint was lodged before the General Manager, Eastern Railway Kolkata for proper reliefs forwarded the said letter of the petitioner by the Chief Commercial Manager, Northern Railway, Baroda house, New Delhi-110001 with a copy to the petitioner but no relief was given to the petitioner by the Chief Commercial Manager, Northern Railway, Baroda House, New Delhi but a regret letter was sent to the petitioner. Through letter dated 08.6.2017, Harvinder Singh, Deputy Secretary/P.C. for general Manager wrote that some technical problem arose and for that reason the petitioner had to suffer. The petitioner was the consumer of the Railway Authority and got every right to claim compensation for the negligence, deficiency of service, bad trade practice, harassment, humiliation, mental agony and miserable trouble and who will pay compensation before this Ld. Forum. The cause of action started on 14.10.2016 the day when petitioner boarded into the reserved for travelling from Delhi to Kotdara station but could not and continued up to destination. Getting no alternative the complainant filed the instant complaint case before this Forum praying directions upon the opposite party to pay compensation of Rs.200,000/- for deficiency of service, Rs.100,000/- for negligence and bad practice, Rs.150,000/- for harassment/ Extreme trouble/ mental agony and miserable trouble and Rs.50,000/- for legal charges.

The opposite parties denied all the allegations leveled against them and stated that the complainant has no locus standi to file the present complaint before this Ld. Forum praying for redress and relief against these answering opposite parties for no fault on their part as the same would be utterly illegal and violative of the principle of natural justice.

The present complaint is not at all maintainable in the eye of law. This Ld. Forum has no territorial jurisdiction to entertain the present complaint. The question of maintainability ought to be decided at the very threshold before going to the merit of the instant complaint case. In the instant case the cause of action arose on 14.10.2016 at Delhi Railway Station. It has been alleged that on the said 14.10.2016 when the complainant accompanied by his wife, son, mother in law and sister in law boarded the concerned Reservation Coach of the subject Train having valid confirmed Reservation Tickets for travelling from Delhi Railway Station to Kotdara Railway Station, the complainant found that the Reservation seats allotted to the complainant and his associates in the Lower Berth of the concerned coach were preoccupies by some other passengers who claimed that those seats were allotted to the said passengers by the Rail Company with the same Reservation Number in the concerned coach. It has also been alleged that the complainant brought the matter to the notice of the concerned Travelling Ticket Examiner (T.T.E) of the concerned coach. But the concerned T.T.E did not take Endeavour to make any arrangement of Berths in favour of the complainant and his associates. It has further been alleged that before half an hour of the end of journey the concerned T.T.E endorsed new Reservation Number of seats on the surface of the Reservation Tickets of the complainant.

These answering the opposite parties submit that the subject train in the concerned Reservation Coach of which the allegations regarding the deficiency of service were brought by the complainant belongs to the Northern Railway. Besides, the question of the alleged deficiency of service in the concerned coach of the subject train arose at Delhi Railway Station which is in the territorial jurisdiction of the Northern Railway Station having its Head Quarter at Baroda House, New Delhi. In that view of the fact, the place where the question of the alleged deficiency of service in the concerned Reservation Coach of the subject train arose is beyond the territorial jurisdiction of this Ld. Forum. So, there is no cause of action or part of cause of action arose within the jurisdiction of this Ld. Forum. Hence, only on the ground of maintainability the instant complaint case is liable to be dismissed.

Besides the issue of maintainability of the present complaint case on the point of jurisdiction, the present complaint case is defective due to mis-joinder and non-joinder of necessary parties. Since the question of the alleged deficiency of service in the concerned Reservation Coach of the subject Train arose at Delhi Railway Station which is in the territorial jurisdiction of the Northern Railway, the General Manager, Northern Railway ought to have been impleaded as party in the instant complaint case because without whom no effective adjudication can be made.

These answering  opposite parties are no way responsible for the alleged deficiency of service in the concerned Reservation Coach of the subject train in the territorial jurisdiction of the Northern Railway and as such these answering opposite parties cannot be held liable to compensate the complainant for no fault on their part.

The complainant has not approached this Ld. Forum with clean hands and as such the complainant does not deserve for any relief against these answering opposite parties from this Ld. Forum.

The present complaint petition ought to be rejected in limini as the same is based upon non-representation and misrepresentation of facts.

Save and except what are matters of record and what are specifically admitted herein by these answering opposite parties all other statements and/or allegations made in the complaint shall be deemed to have been denied and disputed by these answering opposite parties.

These answering opposite parties submit that it is a fact that the complainant purchased two Reservation Railway Tickets being nos. 94941358 and 94941356 from Chinsurah Railway Station, Hooghly for travelling by Mussouri Express vide Train No. 14041 from Delhi Railway Station to Kotdara Railway Station and the date was fixed for the said journey on 14.10.2016.

These answering opposite parties submit that due to computerized Reservation system now one can purchase Railway Reservation ticket from any Railway Station in India for traveling by any train from one Railway Station to another Railway Station in India.  The opposite parties also submit that the question of the alleged deficiency service in the concerned Reservation Coach of the subject Train arose at Delhi Railway Station which is in the territorial jurisdiction of the Northern Railway. For the said alleged deficiency of service in the concerned Reservation Coach of the subject train which arose at Delhi Railway Station in the territorial jurisdiction of Northern Railway, the opposite parties cannot be held liable to compensate the complainant for no fault on their part. The opposite parties also submit that it is true that the complainant wrote a complaint dt. 29.11.2016 to the Chief Commercial Manager, Eastern Railway i.e. the opposite party no. 2 stating inter alia that the alleged deficiency of service in the concerned Reservation coach of the subject train arose at Delhi Railway Station. The opposite party no. 2 rightly forwarded the said complaint dt. 29.11.2016 along with his letter dt. 16.3.2017 to the Chief Commercial manager, Northern Railway i.e. opposite party no. 3 for his information since alleged deficiency of service in the concerned coach of the subject train arose at Delhi Railway
Station which is in the territorial jurisdiction of the Northern Railway. The opposite party no. 2 is not at all concerned with the matter of the Northern Railway.

The opposite parties also submit that it is also true that one Harbinder Singh, Dy. Secy./P.C. for the General Manager, Northern Railway Wrote a letter dt. 8.6.2017 to the complainant stating inter alia that on particular day some technical problem, arose but, however, all the passengers of the concerned Reservation coach were allotted Berths.

The opposite parties also submit that it is very much true that in the instant complaint case the cause of action arose on 14.10.2016 at Delhi Railway Station which is in the territorial jurisdiction of the Northern Railway and the place where the cause of action arose is beyond the territorial jurisdiction of this Ld. Forum. In fact, there is no cause of action or part of cause of action within the jurisdiction of this Ld. Forum. So, the complainant has no locus standi at all to file the instant complaint case before this Ld. Forum praying for redress and relief against these answering opposite parties as already indicated hereinabove.

The complainant miserly failed to make out any case against these answering opposite party nos. 1 and 2. Under no circumstances, the complainant is entitled to claim any compensation from these answering opposite party nos. 1 and 2 as such the instant complaint case is liable to be dismissed with cost.

These answering the opposite parties crave leave to file any additional written if necessary and to file any other relevant document at the time of evidence. 

 Both sides filed evidence on affidavit and written notes of argument which are taken into consideration for passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainant Avijit Nandy, is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Avijit Nandy, is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the opposite party, as the complainant being the customer of the opposite party purchased railway tickets from the counter of Chinsurah Railway Station for making journey.  So, he is entitled to get service from the opposite party as consumer.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainant and opposite party No.1 are residents/having office address within the district of Hooghly. The complaint valued Rs.5,00,000/- as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.            

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

The case of the complainant is that he purchased two railway tickets being No.94941358 & 94941356 from the ticket counter of Chinsurah Railway station under Eastern Railway. The tickets were confirmed tickets from Delhi to Kotdara in Mussourie Express being train No.14041. As the tickets were purchased from Chinsurah Railway station under Eastern Railway so both of them were made party for the deficiency of service of the Northern Railway. The fact remains that the complainant was going from Delhi to Kotdara with sleeper class reservation up to Kotdara station accompanied by his wife, son, aged ailing mother-in-law. After boarding into train in Delhi he found that his reservation seats being nos. 49/52/41/44 all allotted to lower berths to the petitioner were preoccupied by other passengers who claimed that those seats were allotted by the railway with same reservation number in coach no.S-4. The petitioner showed his valid reservation tickets but the passenger did not leave the seats although his ailing mother- in- law could not stand. Then the complainant approached the concerned T.T. and requested him to make arrangement of their berths but the T.T. did not pay heed, rather advised to get down and to purchase new tickets without taking any action to provide any berth. As a result the complainant alongwith family members compelled to stay on the floor of the berth and also compelled to get down at Nazibabad instead of Kotdara long before his destination. The complainant further stated that the T.T. attendant did not make any endorsement in the confirmed reservation ticket of the petitioner and not taking any endeavor to make arrangement of berths and this type of failure of non checking the un authorized person or depriving the genuine right of the valid ticket holder tantamount to negligence, deficiency of service and unfair trade practice. Getting no berth at night including a sick aged lady and a child of 7 years with two ladies compelled to take shelter in the dirty floor of the coach in spite of having confirmed railway travel ticket & enduring the kick of the passenger and swallowing the filthy languages and insulation of the other passengers which caused serious humiliation of all the members of the petitioner. Subsequently the petitioner received massage that the train service up to Kotdara has been cancelled and the train would go up to Nazibabad and that was also extra punishment of the petitioner and he was bewildered and helpless and puzzled at the situation. The most funny thing was that before half an hour of the completion of journey towards Nazibabad the said T.T. came hurriedly and asked the Tickets of the petitioner and on the surface of the tickets endorsed new reservation No.S-4 No 67&68 and in the another ticket No.56&29 up to Nazibabad and told us to seat there. But the petitioner was not interested to sit there as he finished his journey up to Nazibabad instead of Kotdara with extreme distress and without reservation lying on the floor.

 After returning back the complainant wrote a letter to the chief commercial Manager, Eastern Railway, Kolkata on 29.11.2016 conveying everything, but no reply.  Getting no reply he wrote another letter to chief commercial Manager, Eastern Railway, Kolkata on 20.01.2017. Subsequently another complaint was lodged before the General Manager, Eastern Railway Kolkata for proper reliefs forwarded the said letter of the petitioner by the Chief Commercial Manager, Northern Railway, Baroda house, New Delhi-110001 with a copy to the petitioner but no relief was given to the petitioner by the Chief Commercial Manager, Northern Railway, Baroda House, New Delhi but a regret letter was sent to the petitioner. Through letter dated 08.6.2017, Harvinder Singh, Deputy Secretary/ P.C. for general Manager wrote that some technical problem arose and for that reason the petitioner had to suffer. The petitioner was the consumer of the Railway Authority and got every right to claim compensation for the negligence, deficiency of service, bad trade practice, harassment, humiliation, mental agony and miserable trouble and who will pay compensation before this Ld. Forum. The cause of action started on 14.10.2016 the day when petitioner boarded into the reserved for travelling from Delhi to Kotdara station but could not and continued up to destination. Getting no alternative the complainant filed the instant complaint case before this Forum praying directions as incorporated in the prayer portion of the complaint petition.

 It is the version of the opposite party that the cause of action arose on 14.10.2016 at Delhi Railway Station. It has been alleged that on 14.10.2016 when the complainant accompanied by his wife, son, mother in law and sister in law boarded the concerned Reservation Coach of the subject Train having valid confirmed Reservation Tickets for travelling from Delhi Railway Station to Kotdara Railway Station, the complainant found that the Reservation seats allotted to the complainant and his associates in the Lower Berth of the concerned coach were preoccupies by some other passengers who claimed that those seats were allotted to the said passengers by the Rail Company with the same Reservation Number in the concerned coach. It has also been alleged that the complainant brought the matter to the notice of the concerned Travelling Ticket Examiner (T.T.E) of the concerned coach. But the concerned T.T.E did not take Endeavour to make any arrangement of Berths in favour of the complainant and his associates. It has further been alleged that before half an hour of the end of journey the concerned T.T.E endorsed new Reservation Number of seats on the surface of the Reservation Tickets of the complainant. The place where the question of the alleged deficiency of service in the concerned Reservation Coach of the subject train arose is beyond the territorial jurisdiction of this Ld. Forum. So, there is no cause of action or part of cause of action within the jurisdiction of this Ld. Forum. The opposite parties also submit that it is true that the complainant wrote a complaint dt. 29.11.2016 to the Chief Commercial Manager, Eastern Railway i.e. the opposite party no.2 stating inter alia that the alleged deficiency of service in the concerned Reservation coach of the subject train arose at Delhi Railway Station. The opposite party no. 2 rightly forwarded the said complaint dt. 29.11.2016 along with his letter dt. 16.3.2017 to the Chief Commercial manager, Northern Railway i.e. opposite party no. 3 for his information since alleged deficiency of service in the concerned coach of the subject train arose at Delhi Railway
Station which is in the territorial jurisdiction of the Northern Railway. The opposite party no.2 is not at all concerned with the matter of the Northern Railway. The opposite parties also submit that it is also true that one Harbinder Singh, Dy. Secy. /P.C. for the General manager, Northern Railway Wrote a letter dt. 8.6.2017 to the complainant stating inter alia that on particular day some technical problem, arose but, however, all the passengers of the concerned Reservation coach were allotted Berths.

After perusing the complaint petition, written version, evidence on affidavits, written notes of arguments and the documents in the case records it appears that complainant purchased confirmed reservation tickets from the window of Chinsurah Railway station under Eastern Railway Divn on 16.09.2016 being seat Nos 41,42,49 &52 in coach No.S-4 of train No.14041, Mussourie Express with an intension to make journey from Delhi to Kotdara railway station on 14.10.2016. Dispute cropped up in between the parties when the reserved seats of the complaint were occupied by the unauthorized passengers on specified journey and inspite of putting the matter before the concerned T.T. he and his accompanied were refused to allot seats according to his reservation tickets then the complainant and his aged ailing mother- in-law compelled to make journey staying on the floor of the reservation coach throughout the night and subsequently compelled to get down at Nazibabad instead of Kotdara. As a result the complainant and his accompanied two female members and a minor suffered a lot. So the complainant being aggrieved wrote complaint before the railway authority who on their turn took no steps as result this complainant compelled to take the recourse of law before this Forum praying directions upon the opposite party.    

The Xerox copies of letters of the complainant depicts that the complainant lodged complaint before the opposite party ventilating his grievances but the responsible persons of the opposite party the railway authority stated that on investigation it is found that some technical problems arise, however all the passengers were allotted berth in same coach. But no evidence produced from the end of the opposite party to substantiate that the chart also depicts the names of these passengers. Rather the opposite party tried to evade their responsibility by answering the letter of the complainant in generalized form. The responsible persons of the railway failed to investigate the matter on the basis of specific complaint lodged by the complainant. In the course of contesting this complaint case by filing written version, evidence on affidavit and written notes of argument the opposite party raised the maintainability of the complaint petition in respect of territorial jurisdiction of the case. The opposite party assailed that the cause of action started at Delhi railway station so this Forum lacks the territorial jurisdiction of this Forum as such the complaint petition is not maintainable before this Forum. In this respect complainant assailed that the cause of action started at Chinsurah Railway station since the date of purchase of reservation ticket.

 It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability.

 The Hon’ble Supreme Court relying on the decision of ONGC ( 1994 AIR, SCW 3287), explained the concept of cause of action as ; It is clear from the above judgement that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court’s territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case, acts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer jurisdiction on the court concerned.

   The agent on behalf of the opposite party referred a case of Supreme Court, Sonic Surgical Vs. National Insurance Company Ltd (2010)3 WBLR (SC) 58 in which it is held that mere location of a branch/ or office of the opposite party within the area of particular Forum does not confer territorial jurisdiction upon the Forum for that area. Jurisdiction would vest in such a Forum if a part of the cause of action is also shown to have accrued in that area. The Hon’ble Apex Court also hold that an interpretation has to be given to the amended section 17(2) of the act, which does not lead to an absurd consequences. The complainant can file a claim petition even in Tamilnadu or Guwahati or anywhere in India where a branch office of the Insurance Company is situated. It will lead to absurd consequences and lead to branch hunting. Court is also in the opinion that the branch office in the amended section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of section 17(2) (b) of the act but such departure is sometimes necessary to avoid absurdity.

 We respectfully agree with the view taken by the Calcutta High Court in the aforesaid decision of IFB Automotive Seating and System Ltd. and others Vs. Union of India, AIR 2003 Calcutta,80 with the question as to the meaning of the expression ‘cause of action’. Hence we find after perusing the case record that part of the cause of action in the present case arose at Chinsurah within the territorial jurisdiction of CDRF, Hooghly.

 Order of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No. 1590/2000 which inter alia noted that as per list of duties prescribed by Railway Administration , TTE for Sleeper Coaches shall check the tickets of the passengers in the coach , guide them to their berths / seats and prevent unauthorized persons from the coach . He shall remain vigilant particularly during night time and ensure that intruders, beggars, hawkers and unauthorized persons do not enter the coach.

 Order of the Honble National Consumer Disputes Redressal Commission as reported in 1996/2 CPR (NC) 132 holding that failure on the part of the Railway Administration in checking entry of unauthorized persons in reserved compartment is negligence and deficiency in service.

 Order passed in Union of India Vs Unni Krishnan Menon arising out of judgments in AS 21 of 1986 and AS 1 of 1987 of the first Additional Sub judge, Trichur. It was held that no passenger can enter a reserved compartment or occupy a seat /berth which is already reserved for some other passenger and failure on the part of the Railway Authority to take appropriate action against unauthorized passengers may attract compensation on the ground of deficiency in service.

From the above discussion we may hold that the opposite party failed to provide reserved seats for which the complaint paid money and in absence of reserved seats the complainant and his accompanied suffered a lot due apathetic attitude on the part of opposite party. The action on the part of the opposite party appeared to be a unique instance of deficiency of services.  The complainant knocked the door of the opposite party alleging the deficiency of service but the opposite party without providing him reliefs tried to evade its responsibility which tantamount to deficiency of service coupled with unfair trade practice for which he is entitled to get compensation along with other reliefs as prayed in the prayer  and litigation cost.       

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

 The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party by adducing evidence. So the complainant is entitled to get compensation and other reliefs from the opposite party.

ORDER

 Hence, it is ordered that the complaint case being No. 138/2018  be and the same is allowed on contest against the opposite party with a cost of Rs.10,000/-.

The opposite party is jointly and /or severally directed to pay compensation amounting to Rs.50,000/- for causing harassment/ extreme trouble / mental agony to the complainant.

 The opposite party is further directed to pay cost of Rs.20,000/- for deficiency of service and unfair trade practice to this complainant.

 All the directions are to be complied within 30 days from the date of passing this final order.

At the event of failure to comply with the order the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 30 days by depositing the accrued amount, if any, in the  Consumer Legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information & necessary action.