LE­GAL MAT­TERS

Can Rail­ways Be Taken to Con­sumer Fo­rum?

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‘Do not eat any­thing of­fered by a stranger’… ‘Pas­sen­gers are re­spon­si­ble for their lug­gage’… Many such mes­sages are printed across rail­way plat­forms as well as within the train. While at the first glance they seem to be fo­cused warn­ings to keep pas­sen­gers alert about mis­cre­ants and thieves around, a good sec­ond thought will make one won­der if the Rail­way au­thor­i­ties are ab­solv­ing them­selves of a fun­da­men­tal re­spon­si­bil­ity – the safety of pas­sen­gers and their be­long­ings. Con­sid­er­ing one pays for the trav­el­ling in the train – re­gard­less of class, train type, or pas­sen­ger pro­file – the pas­sen­ger be­comes a con­sumer of the ser­vices pro­vided by the Rail­ways. So, shouldn’t the lat­ter be held li­able un­der Con­sumer Pro­tec­tion Act in case of loss of lug­gage, dis­com­fort dur­ing the jour­ney, or loss of life due to faults in trains or neg­li­gence of driv­ers?

This ques­tion has been raised sev­eral times at var­i­ous con­sumer fo­rums and more of­ten than not de­cided in favour of the pas­sen­ger – or the con­sumer – of the Rail­ways. The ar­gu­ments given by Dr Prem Lata, Con­sumer Awak­en­ing

For­mer Mem­ber, CDRF-Delhi the Rail­ways in th­ese fo­rums have been ex­haus­tive and chal­leng­ing; at times, the author­ity of Rail­way Claims Tri­bunal as well as the rules of In­dian Rail­way Con­fer­ence As­so­ci­a­tion (IRCA) have come in direct con­flict with the clauses of Con­sumer Pro­tec­tion Act.

Read on to know how con­sumers, when right, can win the day against one of the largest rail­way net­works in the world.

Con­flict­ing Ar­gu­ments

Among other things, in var­i­ous cases con­sumer fo­rums have had to an­swer some spe­cific, core ques­tions. While they have been ex­plained and an­swered in de­tail in a few cases, in some the bench have sim­ply pre­sented the ref­er­ence of cases wherein th­ese queries are ad­dressed. With­out get­ting too deep into de­tails, con­sumers may ac­quaint them­selves with the ar­gu­ments which will help in strength­en­ing their case against the Rail­ways should they ever get en­tan­gled in such a sit­u­a­tion.

a) Do such mat­ters come within the ju­ris­dic­tion of con­sumer fo­rums when the Rail­way Claims Tri­bunal is there to func­tion in mat­ters in­volv­ing the Rail­ways?

b) Ac­cord­ing to Rule 506.2 of In­dian Rail­way Con­fer­ence As­so­ci­a­tion (IRCA) No. 24 and No. 216, the pas­sen­ger is to take care of his own lug­gage and ar­ti­cles which are in his pos­ses­sion. It is also stated that un­der Rule 1301 (I) (IV) of IPCA No. 24, the pas­sen­ger is sup­posed to de­clare be­fore the start­ing sta­tion and get any valu­able ar­ti­cles in­sured by pay­ing the nec­es­sary charges to the rail­way ad­min­is­tra­tion for tak­ing ex­tra pre­cau­tions.

So, can pas­sen­gers ask for dam­ages at con­sumer fo­rums against loss of their be­long­ings?

Both the above is­sues were clearly ad­dressed in the mat­ter of Union of In­dia (UoI) and oth­ers ver­sus San­jiv Dil­sukhrai Dave and oth­ers in Oc­to­ber 2002. The bench com­pris­ing JD Wad­hwa, R Rao and B Taimni had to ad­dress the fol­low­ing is­sues:

i) Whether the claim of the re­spon­dents un­der Con­sumer Pro­tec­tion Act was barred be­cause of Sec­tions 13 and 15 of Rail­way Claims Tri­bunal Act, 1987

ii) Whether there was neg­li­gence on the part of the Rail­ways ad­min­is­tra­tion in pro­vid­ing mea­sures whereby re­moval of lug­gage by an in­truder be­came pos­si­ble

With re­gard to the first is­sue, the bench re­lied on the judge­ment made in the case of Deputy Chief Com­mer­cial Man­ager, East­ern Rail­ways, ver­sus Dr KK Sharma and oth­ers. It was held that ex­is­tence of rem­edy pro­vided by Sec­tions 13 and 15 of Rail­way Claims Tri­bunal Act, 1987, did not take away the ju­ris­dic­tion of the con­sumer courts to de­cide the ques­tion of de­fi­ciency of ser­vice. The con­sumer courts can­not sub-plant the ju­ris­dic­tion of the Rail­way Tri­bunal or any other ju­di­cial or quasi-ju­di­cial body but can sup­ple­ment the ju­ris­dic­tion of th­ese bod­ies in ap­pro­pri­ate cases.

Keep­ing in view the above ob­ser­va­tions, Na­tional Com­mis­sion in the mat­ter of Union of In­dia ver­sus Ajay Ku­mar Agrawal and oth­ers made the fol­low­ing ob­ser­va­tion.

As per the cir­cu­lar dated 11 Septem­ber 1998, the min­istry of rail­ways, Gov­ern­ment of In­dia, pub­lished some of the im­por­tant du­ties. The list of du­ties pre­scribed by the Rail­ways ad­min­is­tra­tion for ‘Train Ticket Examiner (TTE) for Sleeper Coaches’ is brought on record. Of th­ese, du­ties pre­scribed at num­bers 4, 14, 16 and 17 are rel­e­vant. Th­ese are as fol­lows: the coach, guide them to their berth/seats, and pre­vent unau­tho­rised per­sons from en­ter­ing the coach. He shall in par­tic­u­lar en­sure that per­sons hold­ing plat­form tick­ets, who came to see off or re­ceive pas­sen­gers, do not en­ter the coach. kept latched when the train is on the move and open them up for pas­sen­gers as and when re­quired. trains are kept locked be­tween 22:00 and 6:00 hours to pre­vent out­siders from en­ter­ing the coach. time and en­sure that in­trud­ers, beg­gars, hawk­ers and unau­tho­rised per­sons do not en­ter the coach. The above du­ties clearly in­di­cate that there is a re­spon­si­bil­ity cast on the TTE to be vig­i­lant about

“The con­sumer court can­not sub-plant the ju­ris­dic­tion of the Rail­way

Tri­bunal or any other ju­di­cial or quasi-ju­di­cial body, but can sup­ple­ment

the ju­ris­dic­tion of th­ese bod­ies in ap­pro­pri­ate cases. It pro­vides an ad­di­tional rem­edy to the con­sumer".

any­one other than the re­served tick­ethold­ers en­ter­ing the com­part­ment. He is re­quired to pre­vent even a rel­a­tive of the pas­sen­ger with a plat­form ticket from en­ter­ing a coach.

Thus, if the TTE is not per­form­ing any of the above-men­tioned du­ties, a case of de­fi­ciency in ser­vices against them is jus­ti­fied.

More Cases to Note

Sim­i­lar ver­dicts have been passed by var­i­ous courts. In the case of He­mant Vas­ant Bhavsar ver­sus In-charge Cen­tral Rail­ways Book­ing Of­fice, Ma­ha­rash­tra, and oth­ers, as well as in the case of Union of In­dia ver­sus Niva Agrawal, the Supreme Court held that the TTE was bound to ob­serve the du­ties cast upon him, fail­ing which it shall be con­sid­ered ‘de­fi­ciency in ser­vices’ on the part of the In­dian Rail­ways.

The Supreme Court has also main­tained the ver­dict of the Na­tional Com­mis­sion with re­gard to Sec­tions 13 and 15 of Rail­way Claims Tri­bunal Act, 1987. The apex court has stated that th­ese pro­vi­sions do not take away the ju­ris­dic­tion of the con­sumer courts to de­cide on the ques­tion of de­fi­ciency of ser­vice. The con­sumer court can­not sub-plant the ju­ris­dic­tion of the Rail­way Tri­bunal or any other ju­di­cial or quasi-ju­di­cial body, but can sup­ple­ment the ju­ris­dic­tion of th­ese bod­ies in ap­pro­pri­ate cases. It pro­vides an ad­di­tional rem­edy to a con­sumer.

An­other no­table ver­dict is from the Union of In­dia ver­sus Manoj H Pathak case. In this case, the Na­tional Com­mis­sion’s state­ment read: “It is not in dis­pute that the com­plainant had hired ser­vices of Rail­ways Ad­min­is­tra­tion for con­sid­er­a­tion and if there is any neg­li­gence or de­fi­ciency in ser­vice on the part of the Rail­ways Ad­min­is­tra­tion, then it is a con­sumer dis­pute within the scope and am­bit of Sec­tion 2 (1) (d) of Con­sumer Pro­tec­tion Act.”

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