Chief Commercial Manager Refunds Western Railway vs A R Hariprasad

THE dispute raised by the complainants before the District Forum related to impediments in the Railways journey which was sought to be performed by the complainants in Mumbai Express from Davangere to Anand in Rajasthan as a leave fare concession made available to complainant -1 by his employer. It is stated that the complainants purchased 5 tickets in AC two -tier compartment and commenced journey on 10.4.2000 from Davangere but they were stranded beyond Miraj for about 6 hours due to derailment of a goods train enroute. During the period when the passengers were stranded the AC facility was switched off which only increased their hardship for which they had not bargained for. It appears that at last when the track was cleared and the train reached Bombay, it was 3.30 p.m. the next day, by which time the connecting train from Bombay to Anand had already left. This entailed further discomfort and hardship, not to speak of a further long wait at Bombay Railway Station for the family. It is alleged that when complainant -1 approached Railway Authority at Bombay Central, they promised alternative arrangement, but despite waiting from 3.30 p.m. to 9.00 p.m. on the platform no such arrangement was made and hence at 11.00 p.m., the complainants decided to board a private bus for Anand after surrendering the tickets to the railway staff.

IT is stated that on return to Davangere the complainants preferred a claim for refund of the fare for the portion of journey from Bombay to Anand which was acknowledged by the opposite parties as having been received on 2.5.2000. However, as there was no response from the opposite parties, the complainants approached the District Forum for the redressal of their grievance. This was the sum and substance of the dispute as set out in the complaint filed before the District Forum. The opposite parties resisted the complaint mainly on the ground that the complaint is not maintainable under the Consumer Protection Act, since the subject -matter being refund of railway fare, it came within the jurisdiction of the Railway Claims Tribunal. It was also contended that delay in the journey was unforeseen and beyond the control of the opposite parties and hence no stigma of deficiency of service could be attributed to them.

THE District Forum, however came to the conclusion that there was deficiency of service on the part of the opposite parties and hence directed them to pay in all a sum of Rs. 6,210/ - together with interest at 18 percent on Rs. 1,540/ - from 1.5.2000 to 30.8.2000. A sum of Rs. 1,000/ - was also awarded to the complainants as costs in the complaint. This appeal is directed against the said order of the District Forum.

WE have heard Mr. N.S. Prasad, learned Counsel for the opposite parties -appellants and Mr. Hariprasad, complainant 1 -respondent in person. We have also gone through the records to see whether the order passed by the District Forum is sustainable. The learned Counsel for the appellants brought to our notice that as per Section 109 of the Railways Act, injury means mental injury also and hence even where compensation is sought for mental anguish, the jurisdiction lies with Railway Claims Tribunal and not under the Consumer Protection Act. The learned Counsel stated that Salmonds book on the Law of Torts confirmed such a view. He also brought to our notice that in her examination -in -chief P.W. 1 (complainant -2) has not come up with any allegation of distress or discomfort during the onward railway journey, and hence the District Forum has erred in awarding compensation for mental agony to the complainants which amounted to supporting a non -existent cause. Mr. Hariprasad on the other hand pointed out the unhelpful attitude of the opposite parties at Bombay Central, despite assurance of timely assistance to continue the journey by alternative arrangement and submitted that in the facts and circumstances of the case the District Forum was justified in finding fault with the opposite parties for the mental anguish caused to him and his family members.

IN the statement of objections filed, we see that the opposite parties had sought for an adjudication on the preliminary issue of maintainability of the complaint since refund of railway fare fall, according to them, squarely within the jurisdiction of the Railway Claims Tribunal. The District Forum has however come to the conclusion that it was not barred from entertaining the complaint. We subscribe to the view taken by the District Forum that the issue involved in the complaint is not so much the refund of a portion of the railway fare, as a relief meant to compensate for the mental trauma undergone by the complainants. In fact, it has been submitted by the opposite parties and has also been admitted by the complainants that a sum of Rs. 1,540/ - being the fare relating to the journey from Bombay to Anand has been refunded by Cheque No. 83417 on 1.8.2000. Hence it cannot be said that the claim of the complainants relates to railway fare which the Railway Claims Tribunal alone has jurisdiction to adjudicate upon. The learned Counsel for the appellants has however argued vehemently that even otherwise, the injury referred to in Section 109 of the Railways Act includes mental injury as well as hence even claims relating to mental agony, occasioned on account of railway journeys are liable to be tried by the Railway Claims Tribunal and not under the Consumer Protection Act. We do not find any merit in such a contention since when it comes to causes resulting in mental distress, the Consumer Protection Act lends itself to a very liberal construction. In fact the bounds of Section 3 are widespread in this regard, covering vast areas of consumer redressal. Hence viewed through the intention entrenched in this section, we have no hesitation to hold that there was no infirmity in the view taken by the District Forum. The provisions of the Law of Torts cited by the learned Counsel cannot in any way come to the aid of the opposite parties in the context in which it was cited. In fact, in Appeal No. 1024 of 1997, pronounced on 1.10.1999, this Commission had taken a view in a similar case of railway journey that if the allegations are such as would constitute deficiency in service, it cannot be said that the jurisdiction of the Forum or the Commission constituted under the Consumer Protection Act, 1986 stands ousted. Hence we are of the view that there is no merit in the contention of the opposite parties that the complainants had no locus standi to maintain a complaint before the District Forum.

COMING to the allegations levelled against the opposite parties, we find that the opposite parties were right in contending that the impediment in the journey caused to the complainants was an unforeseen event on which the opposite parties had no control. In fact, in her cross -examination, P.W. 1 has admitted as such in no uncertain terms. However it is not true as contended by the opposite parties that the complainants have not expressed hardship or inconvenience on account of being stranded. In her examination -in -chief P.W. 1 has specifically stated that when the AC was switched -off during the wait they experienced strain and distress. She has also alleged that there was a long wait for them from 3.30 p.m. to 11 p.m. at Bombay Central platform, implying that it was one more cause for continued distress. Such a contention has not been sought to be derailed during her cross -examination, nor was there any suggestion that the complainants did not experience any discomfort or mental trauma. It is, therefore, to be understood that the complainants who had paid for AC facilities were deprived of the facilities for a long time for no valid reasons. At the Bombay Central also it cannot be said that they did not undergo any mental strain when the authorities failed to find alternative arrangement for them. We however find that the District Forum was not wholly right in taking a view that the opposite parties ought to have attached an additional bogy to the available train to enable the complainants to perform the journey to Anand. It cannot be said that such an arrangement should have been provided to accommodate just 5 passengers without knowing how many other passengers bound to the same destination and placed in similar circumstances have been stranded. It is not the case of the complainants that accommodation in an additional bogy was promised to them at Bombay Central or accommodation was promised even if next train was running with full reservation. We are, therefore, not in a position to subscribe to the view that the opposite parties are guilty because they did not accommodate the complainants by attaching an additional bogy to the ongoing available train. We also do not agree with the view taken by the District Forum that running the train late by 8 hours is itself a negligent act, since available evidence is proof enough that it was not an anticipated happening.

IT is however seen from records that despite being aware of the hardship caused to the complainants, opposite parties have taken nearly 3 months to refund a sum of Rs. 1,540/ -. The amount, as alluded to above, was paid by cheque on 1.8.2000, which means that it has however been paid before the complaint was filed. We find that the opposite parties have not offered any plausible explanation for the delay and hence the District Forum was right in directing payment of interest on the sum of Rs. 1,540/ - at 18 percent per annum.

IT is true that when a family on a cozy railway journey was compelled to perform a part of the journey by bus after facing uncertainties and mental trauma, their claim for compensation is liable to be considered favourably. However the relief granted by the District Forum on this premise is not commensurate with the mental distress undergone by the complainants. There is no evidence that the complainants have spent Rs. 500/ - at Bombay Central Station and a similar sum towards boarding expenses. Hence we are of the considered view that the ends of justice will be met if the following relief is awarded to them. (1) Difference between railway fareand bus fare between Bombay and Anand Rs. 210/ - (2) Compensation for mental agony Rs. 3,000/ - (3) Costs Rs. 500/ - Rs. 3,710/ - (4) Interest at 18 percent per annum on Rs. 1,540/ - from 1.5.2000 to 30.8.2000

In the result we make the following ORDER The appeal is partly allowed. The order passed by the District Forum is modified as under : The opposite parties are directed to pay a sum of Rs. 3,710/ - (Rupees three thousand seven hundred and ten only) to the complainants together with interest at 18 percent per annum on Rs. 1,540/ - from 1.5.2000 to 30.8.2000, within 6 weeks of receipt of this order failing which the sum of Rs. 3,710/ - will carry interest at 18 percent per annum till realisation. We however do not find it expedient to award costs in this appeal. Appeal partly allowed.