Date – 25.01.2022

SRI  SWADES  RANJAN  RAY

                                 President

Facts of this case, in short, is that to visit Katihar the Complainant purchased one railway reserved ticket from the reservation counter at Howrah on 26.05.2018 on payment of ₹615/- (Rupees Six hundred and Fifteen only) for the journey from Howrah to Katihar, and journey date was 24.07.2018 being PNR No. 661-5248598 Coach No.A-1 (AC 2 tire class), berth no. 25, Train No. 15711 Katihar Express, departure time 21.55 hrs.

That on 24.07.2018 the Complainant boarded the train from Howrah station and at about 11.15 p.m. the Complainant slept on his berth and at about 04.20 a.m. of 25.07.2018 the Complainant woke up for nature call and first entered into Indian style toilet and perceived very pungent smell of urine and when the Complainant pushed the flush button found no water in the toilet neither in the sanitary pan nor in the wash basin.

That at about 05.45 a.m. when the Complainant went to the basin to wash his mouth where he found no water in the basin, no water in the Indian style toilet and no water in the western style toilet.  Western style commode was full by with faces or stools, pungent smell of urine and stool on commode felt by the Complainant made him uneasy, about to fall but however he hold himself holding the door of toilet.  The Complainant felt unwell throughout the day on 25.07.2018 and could not take lunch and dinner properly.

That when the train arrived at Katihar on 25.07.2018 at about 06.35 a.m. the Complainant complained the matter before the Railway Magistrate Katihar Sri S.K. Jha and the Station Manager, Katihar who came to receive the Complainant.  As per their instruction the Complainant lodged written complaint in the complaint book no. 26/16 dated 25.07.2018.

That on behalf of N.F. Railway the Opposite Party No.-3 gave a reply dated 25.07.2018 received by the Complainant on 26.07.2018 whereby they have admitted their fault with the following works —

“shortage of water in train might be caused due to negligence of staff on duty. The matter has been taken seriously and the issue is being brought to the notice of the concerned authority of Malda Town and Howrah for taking necessary strict action against the staff concerned to cautious and avoid such type of recurrences in future”.

That the Complainant subsequently received another letter dated 04.09.2018 from the Opposite Party No.-1 who has acknowledged the complaint letter of the Complainant and intimated to revert back after enquiry.  But till date the Opposite Party No.-1 did not furnish their enquiry report and the steps which they will supposed to take in the matter.

That in the mean time the Complainant losing all hope and faith from the acts and conduct of the Opposite Parties sent one letter dated 03.08.2018 with the demand of compensation due to negligence, inconvenience and deficiency of service on the part of the railways authority which caused mental agony, nausea and uneasiness and ultimate unwell of the Complainant.

That therefore, from the acts and conducts of the Opposite Parties there is clear evidence that they have knowledge about their negligent staff, their poor performances, complaints against them and violation of Government policies by inspite of such illegal activities the Opposite Parties kept silent and encourages their illegal activities.  For the acts and conducts of the Opposite Parties they are amenable under the provisions of the Consumer Protection Act as amended and the Opposite Parties are liable and responsible to pay cost and compensation as claimed by the Complainant.

Hence, this complaint case,

Opposite Party No.-1 appeared and filed Written Version.  In Written Version, Opposite Party No.-1 totally denied the case of the complainant.  It is the case of the Opposite Party No.-1 that complainant raise the inconvenience beyond the jurisdiction of Opposite Party No.-1.  In this regard Opposite Party No.-1 submits that Complainant stated the incidents beyond the Malda town where the territorial jurisdiction of Opposite Party No.-1 ends. So, there is no laches due to inconvenience faced by the complainant and this complaint case is liable to be dismissed.

In reply to the allegation made by the complainant is that after receiving the complaint, Opposite Party No.-1 after making necessary enquiry in the matter as alleged has already intimated their views to the Complainant vide Letter No. C.107/11/70/Com/HWH/2018 dated 17.05.2019, wherein it has been stated that the matter has been enquired into by the Mechanical Department of the Eastern Railway which revealed that round trip maintenance of the subject train including full watering in each of its coaches was duly done at Howrah station on 24.07.2018 before starting at Howrah station at 21.5 hrs.  However, the allegations as stated by the Complainant might have happened in draining out of water apparently due to misuse of water in the toilet by some passengers only by leaving the tap or push cork of the toilet open.  Moreover, no such complaint was received from other passengers of the 2AC coach of the train prior to the arrival of the said train at Malda Railway Station where the jurisdiction of this Railway ends.  If any other passenger of 2AC coach made any complaint regarding this inconvenience before the Malda Town station the railway staff or concerned railway staff would take action immediately. But Complainant made this complaint after Malda Railway station so Opposite Party No.-1 cannot responsible for payment of cost of compensation to the Complainant as there is no laches on the part of Opposite Party No.-1.  Hence, this complaint case is liable to be dismissed.

Points for decision

                                     I. Whether Complainant has any cause of action to file this case or not?

                                     II. Whether there is any deficiency of service on the part of Opposite Parties or not?

                                     III. Whether Complainant will entitle to get any relief / reliefs as prayed for or not?

Decision with reason

All these points are taken up together for sake of convenience and brevity.

I have carefully perused the petition of complaint, Written Version of Opposite Party No.-1, Questionnaire of Opposite Party No.-1 and its reply.

In Written Version, Opposite Party No.-1 stated that Mechanical Department of Eastern Railway made an enquiry that train in question full watering in each of its coaches which was duly  done at Howrah on 24.07.2018 before starting at Howrah Station at 21.55 hrs.

“…………………………… However, the allegation as stated by the Complainant might have happened in draining out of water apparently due to misuse of water in the toilet by some passengers only leaving the tap or push cork of the toilet open”.

It revels from the letter No. C.107/11/70/Com/HWH/2018 dated 17.05.2019 that in the basin of train either tap cork or push cork used.  If the enquiry properly done it should be cleared what type of tap or push cork used in the wash basin and toilet of the alleged train.  The only allegation is that there was no water in the wash basin or in the both Indian style and western style toilet.  The enquiry report of Opposite Party No.-1 shows that some passengers misused of water in the toilet by leaving the tap or push cork open and fixing responsibility upon the passengers.

In my view, if Opposite Party No.-1 provided push cork in the wash basin and toilet, the allegation of Opposite Party No.-1 is totally baseless, but in the enquiry report which was not cleared.  In my view, the report submitted by the Opposite Party No.-1 is baseless, vague and a mere table work.  So it is difficult for the Commission to believe and rely on such vague and ambiguous report submitted by Opposite Party No.-1.

It is the duty of T.T.I. and attending staffs to look after the most essential service provided for the passengers.  In my view, even if none of passengers made any complain, the railway authority should not be escaped from their responsibility if the alleged train actually out of water.

So, in my view, the T.T.I. and attending staffs of the train are sole responsible for the inconvenience faced by the Complainant as well as other passengers.  In most cases, there is a general tendency of T.T.I. and attending staffs to ignore the oral complains of the passengers.  Moreover, it is difficult to presume that none of the passenger made any oral complain for want of water in the alleged train.  From this situation two inferences can be drawn (i) oral complain made by the passengers or (ii) no oral complain made by any of the passenger through train was running without water.

It is not clear from the report of Opposite Party No.-1 that in which station train was out of water.  Unfortunately, so called enquiry committee of Opposite Party No.-1 remain silent on this point, but for avoid their responsibilities by stating that Complainant made this complaint after Malda Railway Station and trying to thrown out the allegation / complaint on the ground of lack of their jurisdiction and tried to fixing the responsibilities on the Opposite Party No.-2 and 3 i.e. Northeast Frontier Railways.

On the other hand, there is no iota of statement / evidence that allegation of complainant is baseless and false and the train was running full of water upto Malda Railway Station.

From the report of Opposite Party No.-1, it is not clear or it is not proved that there was no scarcity of water or train was running without water or with full of water.

From my above finding, I hold that allegation of Complainant is genuine one and I do not believe the vague, ambiguous and baseless report submitted by the Opposite Party No.-1.

In my view, responsibility and jurisdiction start from Howrah Railway station and it will continue upto Katihar Railway Station and the Opposite Party No.-1, Opposite Party No.-2 and Opposite Party No.-3 (i.e. Eastern Railway and Northeast Frontier Railways) are jointly and severally responsible for the inconvenience faced by the Complainant.

Hence, I hold that the inconvenience faced by the Complainant due to laches on the part of T.T.I.s and attending staffs of Easter Railways as well as Northeast Frontier Railways.

In my view, principle of vicarious liability will applicable in this case i.e. Master is always responsible for act of his servants if it is done in the course of his employment.

The inconvenience faced by the Complainant during course of employment of T.T.I.s and attending staffs of the Opposite Parties due to their laches.

Hence, it is an ideal and proper example of principle of vicarious liability.

Essential of vicarious liabilities in Master – Servant Relationship :–

These essential conditions have to be followed for the vicarious liabilities of the master to arises:-

Vicarious liability is a liability where the master is liable for the tort of his servant, Principal for his agent, partner for another partner and an employer for an employee.

The intention behind the Principal of vicarious liability is to provide compensation to the victim by the proper party who is accountable for the harm.

The concept of vicarious liability is rooted in the fact that the superior party (such as an employer) has included, facilitated or otherwise contributed to its agents’ act.

vicarious liability means the liability of a person for an act committed by another person and such liability arises due to the nature of the relation arise between the two.

Essential of vicarious liability in Master Servant Relationship –

These essential conditions have to be followed for the vicarious liability of master to arises:-

                                                i. Master and Servant

                                                ii. Partners in a Partnership Firm

                                                iii. Principal and Agent

                                                iv. Company and its Director

                                                 v. Owner and Independent Contractor

Vicarious liability of Master

In a Master Servant relationship, the servant employees on the command of master and thus a special relation exists between two and in case of a tort committed by the servant, his master is also held liable.

On the point of vicarious liability, I rely on the following references:

Bayley V Manchester Sheffield and Lincolnshere Rly Co (1873) LR8CP 148295

Facts of case

In Bayley V Manchester S & L Railway (1873) a railway employee erroneously assumed the plaintiff to be in the incorrect Carriage although he was in the appropriate carriage.As a consequence of the porter tugging the plaintiff, the plaintiff was wounded.These injuries were alarming, such that the plaintiff chose to sue the corporation that recruited the porter and the accused.This became a landmark judgement when treading on the path of master servant relations and vicarious liability.

                                                1. In the master/company who employed the porter vicariously accountable for the dependent’s deeds?

                                                2. What precisely in the ‘cause of employment criterion?

Judgement:-

The court declared the railway corporation vicariously responsible for the porters acts since  he did them during his job, and this conduct would be lawful had the plaintiff been in the erroneous carriage.

Reasoning and explanation of core concept utilized in the given case:-

Vicarious responsibility refers to an individual’s culpability for an activity committed by another entity.  It emerges became of the character of the two’s relationship.  For instance, A driver for B, while driving B’s, vehicle to workplace, hit C, a pedestrian, owing to his carelessness driving.  In this situation, although B was not driving the automobile, he will be held responsible for the error made by A’s negligence.

These are the most common relations where an individual’s vicarious responsibility emerges.

1. Master and Servant
2. Partners in a Partnership Firm
3. Principal and Agent
4. Company and its Director
5. Owner and independent contractor

                                                Master Servant Relationship:-

When a servant working for a master for economic or other benefit commits an infraction or unlawful conduct while working under the command or following the directions of the master, they share a unique relationship, which is recognized in law of tort.In this case, when the servant does an act for his master, it is believed that the master was performing the act himself, hence, master will also be held responsible.

The master’s obligation is founded on the two maxims listed below:-

1. Oui facit per alium facit per se:-

Whenever a person gets something done by another person, then the person is viewed to be doing such an act himself.

2. Respondent Superior –

The superior should be held responsible for the acts done by his subordinate.

Two necessary conditions for a successful master – servant relationships:-

1. The servant has committed a tortious act.
2. The act was committed by the servant during the course of his employment under the master.

Both of which were satisfied in the Bayley case.

Reasons for liability of the Master:-

1. An Act performed by the servant is believed to be performed by master via him, so it is presumed that if the servant does any violation, it has been committed tacitly by his master, and thus the master is held responsible for these failings.

2. The master is in a healthier financial state than his employee, and so, in the event of a deficit created by the servant’s tortious act.  Furthermore, because the master is held accountable, he ensures that all reasonable case and measures are taken to avoid such responsibility.

3. If a servant does any act, the profit from that act is grasped by the master, and thus, the obligation deriving from the servant’s wrong conduct should be borne by the master as well.

In the case of Anita Bhandari & Ors. V Union of India, the petitioner’s spouse went to a bank, and when entering the cash box of the bank was also taken in, and as a consequence, the security officer shot him and killed him hastily. The petitioner argued that the bank was vicariously responsible in the dispute since the security guard committed the conduct while on the job.However, the bank had contended that it had not authorized the guard to shoot.Eventually, the bank was ruled accountable because providing him the pistol authorizing him to fire when he considered it necessary.Although the guard had acted excessively in his responsibilities, it was nevertheless committed in the course of employment.

In my view:-

An individual can be held accountable for the torts perpetrated by another person under vicarious liability if that individual has a Master Servant relationship with him.Since a servant performs the deed on behalf of his master, tort law states that any employee’s improper conduct committed during the course of employment obligates the master to be held accountable for it.

The Law of Torts :- From Ratanlal & Dhirajlal

Law of Torts – 28^th Edition, Reprint 2021, Page – 44, 168

Page - 44

It is now accepted that the real test for determining the master’s vicarious liability is not the existence of any implied authority but the commission of the tort by the servant “in the course of employment”.The prevailing view, therefore, is that a corporation is vicariously liable for a tortious act of its servants even though it is ultra vires provided it is done in the course of employment.

In Tiruveriamuthu Pillai V Municipal Council, AIR 1961 Mad 230: (1961): Mad 514: 1961 Kerala LT 153 : 74 MLW 104:

Page – 44

The plaintiff’s dog was killed by the employee of a Municipal Council in the course of the discharge of his function of killing stray dogs in the Municipal town expressly authorized by the Council.In an action by the plaintiff for damages against the Council for the loss of the dog, held, that the Council was liable for the unlawful act of having brought about the destruction of the plaintiff’s dog and the fact that the Council acted in excess of its statutory powers was not a defence to the action but was only an aggravating circumstance.

Principle of Liability:

From Page – 168

Why should a master be held liable for the torts committed by his servant in doing his business even when conduct is not blameworthy and he has used the greatest possible care in choosing the servant? One reason for the rule is historical.“The status of a servant maintains many marks of the time when he was a slave.The liability of the master for his torts is one instance.The notion that his (servant’s) personality was merged in that of his family head (master) survived the era of emancipation”.Another reason is grounded on public policy that “there ought to be a remedy against someone who can pay the damages”, and the master is expected to be in a better position for paying the damages than the servant.A third reason is expressed in the maxims Respondeat Superior and quifacit per alium facit per se. In the words of Chelmsford, LC:

“It has long been the established law that a master is liable to third persons for any injury or damage done through the negligence or unskillfulness of a servant acting in his master’s employ.The reason of this is, that every act which is done by a servant in the course of his duty is regarded as done by his master’s orders, and, consequently it is the same as if it were the master’s own act, according to the maxim, qui facit per alium facit per se.”

Lord Pearce gave a very clear and logical definition in Imperial Chemical Industries Ltd. V Shatwell, (1965) AC 656 (685): (1964) 2 All ER 999 (HL),

Lord Pearce observed:“The doctrine of various liability has not grown from any very clear, logical or legal principle but from social convenience and rough justice.The master having (presumably for his own benefit)employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement is answerable to the world at large for all the torts committedby the servant within the scope of it”.

From Page – 169

The law is settled that a master is vicariously liable for the acts of his servants acting the course of employment.Unless the act is done in the course of employment, the servant’s act does not make the employer liable.In other words, for the master’s liability to arise, the act must be a wrongful act authorized by the master or a wrongful and unauthorized mode of doing some act authorized by the master.If the servant, at the time of the accident, is not acting within the course of employment but is doing something for himself, the master is not liable.

This statement is an echo of the principle stated by Salmond in his work on Torts.Salmond further stated that ‘a master is liable even for acts which he has not authorized provided, they are so connected with acts which he has authorized that they may rightly be regarded as modes — although improper modes — of doing them.This explanation by Salmond has gained importance and has given rise to ‘close connection test’ for determining the question whether a wrongful and unauthorized act by the servant can be regarded as a wrongful and unauthorized mode of doing some act authorized by the master or as wholly independent of it.It is the link of the master’s business with the servant’s wrongful act which makes the master liable.

All the T.T.I.s and attending staffs of Katihar Express (Train No.15711) are the employees of Opposite Party No.-1, 2 and 3 and they were performing their duty under supervision and control of Opposite Party No.-1, 2 and 3.  So in my view, any act or laches committed by them during their course of employment, the Opposite Party No.-1, 2 and 3 will be hold responsible and answerable for those acts.

As the convenience faced by the Complainant due to laches of employees of Opposite Party No.-1, 2 and 3, so I hold that Opposite Party No.-1, 2 and 3 are jointly and severally responsible and the Complainant is entitled relief as prayed for.

Complainant purchased his AC-II ticket from the reservation counter at Howrah of Eastern Railway with a view to availed Train No. 15711-Katihar Express  to reach Katihar.

As soon as purchased the ticket, it is the duty and liability on the part of Opposite Party No.-1, 2 and 3

1. To make available of train on schedule date and time.
2. To reach the passengers safely at their destination.
3. To provide safety and security to the passengers inside train while the train was moving.
4. To provide essential service like water, light, A/C, Fan etc.

In this instant case Opposite Parties totally failed to provide water in the basin and toilet while the train was running.

Non supplying of water is amount to deficiency in service on the part of Opposite Parties U/S 2(11) of Consumer Protection Act, 2019.

Hence, I hold that the Complainant able to prove the deficiency of service U/S 2 (II) of Consumer Protection Act, 2019 and Complainant has cause of action against the Opposite Party No.-1, 2 and 3.

All the points disposed accordingly.

In the result, this complaint case succeeds.

Court Fee paid correct.

Hence, it is

                                       O R D E R E D

that the Complaint Case No. 124/2019 be and the same is allowed on contest against the Opposite Party No.-1 and ex parte against the Opposite Party No.-2 and 3.

That the Opposite Party No.-1, 2 and 3 are directed to pay compensation of ₹2,00,000/- (Rupees Two lakh only) jointly and severally in favour of Complainant along with  litigation cost of ₹20,000/- (Rupees Twenty Thousand only) and the payment should be made within 1 (One) months from the date of this order.

Liberty given to the Complainant to file Execution Case for realization of the above mentioned amount in case of failure to make payment by the Opposite Parties within schedule time.

Hence, this complaint case is disposed of accordingly.

Let a copy of this judgement be handed over to all the parties at free of cost.