RAM PRATAP AGARWAL vs Virendra Pratap Singh

THE appellant No. 1, a contractor under an Outlying- Agency-Agreement with Central Railways hold- ing a permit for carrying passengers from Satna to Rewa has been directed to pay the complainant- Respondent (i) Rs. 100/- as "token damages" fro misbehaviour by conductor i.e., by Appt. No. 2 (ii) Rs. 100/- as "token damages" in respect of non/ late attendance in Courts though it is being held that the complainant had failed to prove damages on account of "loss of credibility in court work;" (iii) Rs. 3/- which were token as luggage charges but for which no receipt was given, (iv) 0.50 paisa charged as excess fare; (v) Rs. 50/- as costs, Total Rs. 253.50 paisa, within a period of two months.

THE complainant alleged that on 25.8.90 he returned from Delhi by Kutub Express; on alightling at Satna he found a Bus in Railway compound displaying aboard" Madhya Railways"; on enquiries he was told that the bus would reach Rewa at 10 a.m. He purchased the ticket Though the bus left Satna at 8 A.M., it reached Rewa late at 11.30 A.M. THE complainant, an Advocate, could riot attend many cases, and his non-attendance "adversely affected his professional credibility". Secondly, the opposite parties charged Rs. 8/- for the Ticket which mentioned that the fare is 6.50 paisa only. Even if one Rupee is added as Municipal Taxes (50 paisa each for Satna and Rewa) yet the OP.''s charged 50 paisa more, and insisted that the actual fare is Rs. 8/-. Thirdly, the O.P''s charged Rs. 3/- as luggage charges for a bag of sugar weighing 15 kgs. but no receipt was given. THE complaint prayed for the reliefs viz., that O.P.''s after notices be penalized for those malpractices, and consumer''s interests be protected. Obviously, 2 the complainant did not ask for any quantified damages. Both the opposite parties denied the allegations and their version is, that on 25.8.90 Kutub Express actually arrived at 8.30 A.M. (and NOT at 8 A.M. as alleged); that, the bus with passengers left at 9 A.M. and arrived at Rewa at 10.30 A.M. (NOT at 11.30 A.M. as alleged). They also denied the loss of professional credibility. They further contended that the complainant is not a consumer, and that the Forum has no jurisdiction to hear this complaint

The learned Forum''s findings are: That the Forum has jurisdiction; that the complainant is a CONSUMER; that the OP''s have charged 50 paisa as excess fare as is evident from the Ticket where figure Rs. 8/- is overwritten; that Rs. 3/- have been taken as luggage charges but no receipt therefore was given; that the bus reached late at 11.30 A.M. and therefore, complainant must have attended the court work late i.e. assumedly not before 12.30 noon; though loss or damages on this account have not been proved, "token damages" be awarded. Accordingly, Rs. 253.50 paisa, as detailed in para one, have been awarded.

THE Respondent, was noticed about hearing but did not appear inspite of due service of notice. Shri D.K. Saksena, learned counsel for appellants was heard. Record perused. We do not find any substance in the contention that the complainant is not a ''Consumer''. That expression is well defined in Section 2(d)(ii) of COPRA. The Appellant No. 1 renders bustransport service for consideration in taking Railway passengers from Satna to Rewa. On his own saying, Appellant. No. 1 is an outlying Agent of Railways. But even Railway Services are not inumed from this Act (Refer - I (1991) C.P.J. Page 10 (NC) - General Manager S.E. Rlys. v. Anand Prasad Sinha). 6.1. Under Clause (g) of Section 2 - DEFICIENCY means, "Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any loss 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 has been declared to mean a deficiency in the Act."

6.2. Under clause (o) - SERVICE means, "Service of any description which is made available to potential users, and includes the provision of facilities in connection with banking financing, insurance, TRANSPORT, etc".

UNFORTUNATELY, neither party has placed before the Forum, the terms and conditions of the Outlying Agency Agreement and/or the scheduled timings of Bus Service and other conditions of Permit as regulated by law and the rudimentary Question is whether the bus left at 8 A.M. on an assurance to the Complainant that it would reach Rewa by. 10 A.M. but it reached there at 11.30 A.M.? i.e. so late that complainant could not attend Court cases? Whether this happened because of deficiecny in service i.e. negligence? The total evidence consists of the statement of the Complainant Virendra Pratap Singh on one side, and that of Ram Pratap Agarwal on the other side. On scrutiny of the record we find that when R. Agarwal was examined on 7.1.91 the complainant (who is a lawyer himself) and his counsel were absent. R. Agarwal''s evidence, therefore, in absence of cross-examination remain unchallenged. What is the State of evidence about the time of arrival of Kutub Express? Complaint is silent about time of arrival on 25.8.90. In his statement he says that "at about 8 A.M.", he alighted at Satna. In cross-examination (unfortunately, paragraphs are not numbered) the complainant admits that the trains had arrived "approximately between 8 to 8.30 A.M." and he is unaware of the scheduled time of arrival. The certificate (Ex.D/4) under official seal issued by the Dy. Station Supdt. Satna at the request of Appellant No. 1, shows that on 25.6.90, the train arrived at 8.38 and the left Satna at 8.48. In this background Agarwal states, that the purpose of his bus service is to cater only such train passengers and if the train is delayed, the out agony bus has to wait for passengers. Regarding the Ticket (Ex. P.2) he explains that the fare as printed is 6.50, but 50 paisa each for Municipal Taxes at Rewa/Satna total Rupee one is charged. We find that notice about this extra Municipal charge is printed on the ticket itself. Now as regards the interpolated figure ''8'' on P/2, there is oath against oath. The complaint disclosed the names of witnesses who were co-passengers, and who similarly paid excess amount. But none has been examined and particularly Chaurasiya, an adverse inference is justified. Therefore, we do not agree with the finding that 50 paisa charged in excess and that the interpolated figure is in the handwriting of Appellant No. 2. The learned Counsel Shri Saksena urged that at Satna, a bag of Sugar having 15 kgs. only was allegedly given to the Complainant by his relation, at Satna. He too of course has not been examined. The contention is that no luggage is required for such a small bag.

THE complainant in his bald and bare statement says, that his court work suffered. THE learned Forum on such beautifully vague statement and in absence of any other evidence worth the name, rightly held, that the complainant failed to prove how the professional credibility received a dent. THE Forums constituted under COPRA are invested with jurisdiction under Section 14 (d) to award compensation to the consumer only for any loss or injury suffered by the consumers "due to the negligence of the opposite party". Proof, that there was negligence and that it had caused the particular loss or injury is a sine qua non for the award of compensation. When there is no proof of any negligence which caused delay in service, except that bus reached late (assuming that it reached at 11 or 11.30) we fail to understand how, ipso facto, damages, called TOKEN damages could have been awarded. Even the finding viz., that complainant (refer at page 4 discussion, under Point No. 4) could have attended Court only by 12.30 is based on conjecture because Complainant himself did not depose those facts. It seems that led away by the Status of the Complainants being a lawyer, the Forum fell into the error of awarding "token damages" on this count

ON a careful consideration of the evidence, this appeal succeeds and is allowed. The impugned order passed by the learned Forum dated 28.1.91 is set aside with no order as to costs in both the Forums. The order in appeal shall be communicated to the parties as per Rule 8(9), free of charge, by sending copies under registered Post A.D. Appeal allowed.