Union of India vs Basant Kumar

THIS order shall govern the disposal of Appeal No. 55/93 and Appeal No. 59/93 which were heard together as they arise out of two complainants tried together by District Forum, Gwalior. The decision of the Forum is passed on 20.11.91 and these appeals were filed on 19.1.93. The question of limitation therefore arose and it was directed that it shall be decided at the time of final hearing.

A perusal of the record of the Forum Shows that in Basant Kumar''s case i.e. Case No. 482 of 91 before the Forum on 11.3.92 the case was closed for orders and 18.3.92 was fixed for orders. Not only that the order was not pronounced on 18.3.92 but in between 18.3.92 and 20.11.92 there are no proceedings written in the case. From the record it cannot be found out as to when the copy of the order was despatched to the Opposite Party. In the other case filed by 36 Applicants i.e. Case No. 294/92 before the Forum, the complaint was filed on 30.3.92 and final order was passed on 20.11.92. In this case also it cannot be known from the record as to when the copy was despatched to the parties. However, in this case on 21.12.92 there is a proceeding without signatures of the President in which it is recorded that Shri B.L. Gupta, Counsel on behalf of Railways demanded a copy which was given to him on that day. A similar request from the Counsel for the complainant is noted on 6.1.93 and it was recorded that the copy was given to the complainant. These proceedings also not signed by the President or any other Member. This is a very sad commentary on the working of the District Forum, Gwalior. We have come across several cases in which statutory requirement of communication of the order to the parties has not been complied with for months together. The District Forum should realise that this gives rise to charges and allegations of the staff of the Forum having helped the Appellant before the Commission in unauthorised extension of limitation for filing an appeal. We do understand that because of pressure of work and paucity of staff, it may not be-always possible for the Forum to despatch copies of the order immediately after pronouncing the order, but in that event the copy should be despatched within reasonable time. To ensure quick delivery of copies a practice can be adopted not to pronounce any order unless the requisite number of copies for being supplied to the parties are available. We hope the District Forum shall here-after see to it that the copies are despatched or supplied to the parties immediately after the order is pronounced. However, in view of the state of affairs, both these appeals have to be treated as filed within limitation.

Two complaints before the District Forum related to deficiency in service on the part of the Railways in not providing accommodation of 37 persons who had reserved berths on Malwa Express for journey on 2.6.91 from Gwalior to Ujjain. The facts are not much in dispute. The deficiency in service is obvious because the Railways have admitted that the concerned clerk had booked the seats for journey on 2.6.91 but made an entry in the Railway records that the reservation was for 1.6.91. The question therefore is, whether the consumers were entitled to any compensation and if so the quantum. The District Forum has awarded compensation of Rs. 700/- per passenger to Basant Kumar and 36 other passengers in the other case and Rs. 200/- as expenses and Rs. 250 /- as fees in each of the two cases.

THE Union of India has now come up in these two appeals against the orders of the Forum in the two cases. THE main attack in the memorandum of appeal in both the cases is on the quantum of compensation. THE Appellant contends that compensation has been assessed without there being any evidence of loss caused. It is also contended that alternate accommodation was provided to the complainants and, therefore, no compensation could have been awarded. THE Counsel for the Respondents in both the cases supported the order of the Forum. A perusal of the record shows that the entire evidence in both these cases is an affidavit of Basant Kumar in his case and affidavit of a Lawyer Shri Laxmandas Duseja in the other case. In the affidavit of Duseja, he had not even state that he was travelling himself in the train alone with the marriage party. However, the Counsel for the Railways had obliged the complainant by asking him the opening question in cross-examination and getting it on record that he was also going with the marriage party. Neither in the affidavit of Basant Kumar nor in the affidavit of Laxmandas Duseja any basis for claiming a particular amount of compensation is given. Basant Kumar has demanded minimum compensation of Rs. 99,000/- without showing any basis for the claim. Laxmandas Duseja has asked for a compensation of Rs. 2,000/- per passenger and Lawyers fee of Rs. 500/- per passenger as a normal compensation. There is thus absolutely no foundation for assessment of compensation in the case and even the District Forum has not given any reason for having assessed the compensation at Rs. 700/- per passenger. Compensation has to be commensurate with the loss proved by the claimant. It cannot depend on the whim or fancy of the claimant or the Court granting it. It has to be assessed on objective criteria. The case being not of monetary loss, of course, the Courts have to draw on their experience and the material placed on record about the inconvenience, harassment, mental agony etc. suffered by the claimants. In this case, Basant Kumar is admittedly the person who had booked and reserved berths for taking a marriage party for his sister''s marriage. Naturally all the passengers had to be members of the family or closed relatives who had to be taken to Ujjain for the marriage. There is no doubt therefore, the Basant Kumar is a consumer and each of the passengers being beneficiary of the services of the Railways hired by Shri Basant Kumar were also consumers. However, merely because each one of them is a consumer they do not become automatically entitled to a compensation at a flat rate without proving any loss at all.

FROM the admitted facts and circumstances of the case only thing which can be taken to be proved is that there was a deficiency in service and that caused serious inconvenience, embarrassment, loss of face to Basant Kumar and the members of the family, relatives for whom he had booked the berths. Even assuming because of in consistancy in the stand taken by the Railways that alternative berths were not provided to all these persons, it is admitted that they travelled by the same train upto Ujjain. There was therefore no loss of fare paid. Because of they could not get advantage of reserved berths the reservation charges can be said to have been lost and the Railways have to refund the reservation charges on all the 37 berths booked by Basant Kumar. As regards physical inconvenience, embarrassment, loss of face resulting in mental agony etc. only Basant Kumar could be compensated because nobody else has proved any special loss caused. Actually, the cavalier fashion in which the other case of 36 passengers was filed and conducted, it appears that none of the passengers other than Basant Kumar was serious about it and the other complaint seems to have been filed as a safe-guard against technical objection in Basant Kumar''s case that 36 passengers being not impleaded either as complainants or Opposite Parties in the case, no compensation could be paid in respect of the loss or inconvenience caused to them. This explain as to how after Basant Kumar''s case was closed for orders and posted for 18.3.92, orders were not pronounced in that case and on 30.3.92 the other case was filed and after completion of evidence in that case, both the cases were decided together. Even otherwise, none of the claimants in the case of 36 passengers having proved any loss as such and even Laxmandas who filed affidavit in that case not having said a word about the loss personally suffered by him. No compensation could have been granted in the other case. We therefore find that what has been awarded by the Forum to 36 passengers in that case could not have been awarded on the well established principles of law. No one is entitled to smart money under the garb of compensation. Since both the cases were consolidated and evidence of Basant Kumar can be read in the other case also and on admitted facts-inconvenience, embarrassment, loss of face, mental agony can be presumed to have resulted from the deficiency in service, a reasonable compensation should have been awarded Rs. 700/- per passenger is an exorbitant amount by any standard looking to the material placed on record. In our opinion, a consolidated compensation of Rs. 3,700/- in both the cases at the rate of Rs. 100/- per passenger apart from refund of berth reservation charges on 37 tickets would be a fair compensation in the circumstances of the case. After all, Railways have to pay for it for the negligence of its clerical staff and the deficiency was not intentional. In the aforesaid circumstances, the appeals are allowed partly. The amount of compensation is scaled down of Rs. 3,700/- payable to Basant Kumar for and on behalf of all the 37 passengers as he was the person who had booked the tickets. The berth reservation fees of all the 37 tickets shall also be refunded to Shri Basant Kumar by the Appellants. In addition to the aforesaid compensation, an amount of Rs. 500/-each shall be paid by the Appellants to Shri Basant Kumar and Shri Laxmandas Duseja as consolidated costs of these cases before, the Forum as well before this Commission. Appeals partly allowed.