1. THE opposite parties have filed this appeal under Section 15 of the Consumer Protection Act, 1986 (for short the ''Act'') against the order
dated 14.7.1998 passed in complaint case No. 294/97 by the District Consumer Disputes Redressal Forum, Bhopal (for short the ''District
Forum'').
2. THE facts giving rise to this appeal are thus : THE complainant with her two daughters on reserved ticket No. 325447 on 16.1.1993 boarded
the train No. 5114 Up Chhapara-Kurla Express from Mujaffarpur in ladies coupe Ilnd Sleeper Coach No. 4540-S-4. Reserved berths No. 1,2
and 3 were allotted to her. THE said coupe had no sliding doors nor had the light. In the night when the complainant and her two daughters were
asleep, some unauthorised persons, the miscreants entered into the compartment in between Arraha and Buxer who spread Chloroform or like
spray to make the complainant and her two daughters unconscious to commit theft. THE miscreants committed theft of three suit cases and got
down at Bihiya Railway Station of Eastern Railway. Complainant and her daughters when became conscious at Arraha found their three V.I.P. suit
cases, central lock 2 inches containing valuable ornaments, cloths, etc. missing. A report of the incident dated 16.1.1993 was given to the
Revolving Police Chowki, Train Squad, Bombay Janta Express at C.T.E. Centre Manikpur. A written report was also lodged at Railway Police
Station, GRP, Satna. THE incident occurred due to the negligence of the Railway Administration and its servant as no proper arrangement for the
safety and security of the person and property of the passengers were made inasmuch as the coupe had no sliding doors so as to close the doors
from inside; there was no light in the train; the Travelling Ticket Examiner did not perform his duty, to see that unauthorised persons do not enter in
the reserved coach. THErefore, for the negligence and deficiency in service of the Railway Administration and its servants the complainant filed a
complaint on 10.2.1993 before the District Forum, Rewa to claim financial loss of Rs. 53,800/- and Rs. 25,000/- as compensation for
inconvenience, harassment, mental and physical pain to the complainant and her two daughters. THE District Forum dismissed the complaint for
want of territorial jurisdiction to entertain the complaint. Against the said order the appeal No. 223/93 filed before this Commission was also
dismissed, on 16.1.1995.
The complainant filed a Revision Petition No. 565/95 before the National Commission. The National Commission by order dated 30.8.1996
affirmed the order holding that the complaint could have been legally instituted before the District Forum, Satna. However, at the prayer of the
complainant, the National Commission directed to return the complaint to the complainant for representation to the District Forum at Bhopal within
a period of one month from the date of its return from the registry at the District Forum, Rewa and if so presented, the District Forum, Bhopal shall
treat the complaint as having been filed on the date when it was first presented before the District Forum, Rewa and dispose of the same on merits
after giving fresh notices to the opposite parties.
The complainant for return of the complaint sent a registered A.D. request letter, but the complaint was not returned. The complainant filed an
application on 10.5.1997 impleading seven opposite parties before the District Forum for fresh notice and hearing in original complaint dated
9.2.1993, in view of the order passed by the National Commission. The opposite parties in their defence version raised various legal and factual
pleas. The District Forum after appreciation of material on record did not award the financial loss caused due to the theft of the suit cases. For the
deficiency in service for the proper and safe travel of the passengers in not providing light, sliding doors and security arrangement, and dereliction
of duty of Travelling Ticket Examiner for not permitting the unauthorised persons in the reserved coach as a result of which the complainant and her
two daughters suffered harassment, inconvenience, mental and physical agony awarded compensation of Rs. 50,000/- with interest at the rate of
12% per annum from 16.1.1993 till payment and also the costs of the proceedings.
3. WE have heard Mr. Sushil Tapadiya, learned Counsel for the appellant and Mr. K.N. Gupta, husband of respondent, record perused.
Re. Limitation : It was contended that the complaint presented before the District Forum at Bhopal on 15.5.1997 was barred by time. In view of
the order of the National Commission the complaint after its return from the District Forum, Rewa was not represented before the District Forum
at Bhopal within a period of one month. In our opinion the presentation of an application for issue of fresh notice of the complaint in such
circumstances was not barred by time. The complainant made efforts for return of the complaint from the registry of the District Forum by sending
the registered letter, but it was not returned back. Therefore, the complainant filed application on 15.5.1997 for fresh notices and requisition of the
record of that from the District Forum, Rewa. The complainant in the rejoinder alongwith affidavit filed on 12.12.1997 explained the circumstances
for not representing the complaint within the time fixed by the National Commission. Therefore, contention that it is only the National Commission
which could have extended or granted time to present a fresh complaint in the circumstances cannot be accepted. Moreover, the appellants cannot
be permitted to take this technical plea of limitation in appeal, when it was not pressed before the District Forum.
4. RE. Non-joinder and mis-joinder of parties : It was submitted that the complaint ought to have been filed against Union of India through its
General Manager of the concerned Zone as constituted under Section 3 of the Railways Act, 1989 (for short the ''Railways Act''). Railway
Administration is defined under Section2(32)(A) of the Railways Act in relation to a Government Railway, means the General Manager of a Zonal
Railway appointed under Section 4(1) in whom general superintendence and control of the Zonal Railway vests as laid down in Section 4(2). The
original complaint filed was against the two General Managers. In the application for issue of fresh notice, seven opposite parties were impleaded
as parties. The incident occurred in the Zone of appellant No. 2, therefore, the Zonal Manager of Northern Railway had the superintendence and
control of Northern Railway ought to have been impleaded as opposite party. The complaint is liable to be dismissed for non- joinder of parties.
True, there is a defect in the application of misjoinder of parties. There is a defect also of not properly impleading Union of India as party but for
that the complaint will not fail. The objection ought to have been raised at the earliest opportunity which was not raised till the stage of REvision.
Order 1, Rule 9 of the Code of Civil Procedure provides that no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the
Court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it. Proviso of
Order 1, Rule 9 lays down that nothing in this rule shall apply to non- joinder of a necessary party. The District Forum has decided the complaint in
relation to the claim made on the allegation of deficiency in service. Besides, the complaint will not fail for not impleading Union of India through its
General Manager of the concerned Railway as General Manager of the concerned Railway is a party.
It is well settled that the defect of misjoinder of parties is not fatal. If the prayer would have been made, the District Forum would have ordered
under Order 1, Rule 10(2), C.P.C. to strike out the names of the persons improperly joined and to allow the complaint to proceed with. Non-
joinder of party, also, does not per se entail the dismissal of a suit or complaint unless it is shown that in the absence of such a party an effective
decree or order cannot be passed. In the present case, the General Managers of Eastern Railway, Northern Railway and Central Railway who are
appointed under Section 4 of the Railways Act and have general superintendence and control of their respective Zonal Railways are already on
record. Therefore, it cannot be contended that the effective relief in respect of the claim made in the complaint could not be granted.
Re. Loss of luggage : Placing reliance on Section 100 of the Railways Act it was contended that the three suitcases carried by the complainant and
her two daughters were not booked, nor it is established that the loss caused was due to the negligence or misconduct on the part of Railway
Administration or any of its servants therefore the award of Rs. 50,000/- is illegal. Counsel cited Tamil Nadu State Consumer Disputes Redressal
Commission, Madras decision in S. Palanisamy v. The General Manager, Southern Railway, II (1993) CPJ 1089. Suffice it to say that the District
Forum has not awarded any amount towards the loss of the personal luggage that is of the contents of the three suitcases in view of Section 100 of
the Railways Act, the award of Rs. 50,000/- as compensation is for deficiency in service.
5. RE : Deficiency in service : It was contended that no ladies coupe is provided in the sleeper coach. Which has been stopped in coaches by the
Railways since 1990. Providing of sliding doors was stopped from 30.9.1988. The Railway Board decided that all the production units would
manufacture 3-tier sleeper coaches without ladies cubicle. Consequently, the first bay having berths numbers marked 1 to 6 would have no sliding
doors and this bay would thus be similar to the adjacent bay which is evident from the circulars filed in the case. Therefore, there was no question
of shutters and latches therein. There was light in the sleeper coach which is evident from the affidavit filed in the case. The Travelling Ticket
Examiner and Railway Police Constable was also there as tickets of the complainant were checked by him. It was submitted that if at all there was
any negligence on the part of Travelling Ticket Examiner, Conductor, Attendant and Railway Police Constable, it was in the course of employment
in exercise of statutory functions delegated to them, the Railway Administration would be immune from liability of the claim for damages. REliance
was placed on a decision of Supreme Court in M/s. Kasturilal v. State of U.P., AIR 1965 SC 1039.
6. THE District Forum after appreciation of evidence has recorded a categorical finding that there was no light in the coach at the time when the
unauthorised persons entered into the compartment, who made the complainant and her two daughters unconscious and took away the three
suitcases. During the period of entering of the unauthorised persons and their getting down after taking away the suitcases, there was no one to
check the unauthorised entry and to see that passengers holding reserved tickets travel safely with their person and property. THE Travelling
Ticket Examiner derelicted in his duties as Section 55 of the Railways Act prohibits against the travelling without pass or ticket, which is a
punishable offence under Section 137 of the Railways Act. Section 139 of the Railways Act gives power to remove such unauthorised passengers
who entered in train and refused to pay the fare and the excess charge referred in Section 138 by any Railway servant authorised in this behalf who
may call to his aid any other person to effect such removal. Section 147 of the Railways Act deals with trespass and refusal to desist from trespass.
THE Time Table of Central Railway of 1st July, 1993 has been placed before us, in which duties of Travelling Ticket Examiner of sleeper coach
are indicated at page 196. Duty No. 7 speaks of prevention of unauthorised persons from entering the coach. Duty No. 13 is to ensure that
berths/seats exclusively set aside for ladies are allotted to ladies only and shall prevent male persons occupying such accommodation. Duty No. 16
relates to prompt attention to the complaint of passengers in regard to working of fans, lights, taps, etc. and take necessary remedial action to get
them rectified. THEre is no evidence that any effort was made by the Travelling Ticket Examiner, by the Railway Police Constable or by the
Attendant to prevent the entry of unauthorised persons who committed theft of three suit cases. THErefore it was a clear case of dereliction of
duties resulting in the theft of the personal luggage of the three passengers due to negligence of the Railway Administration and its servants.
The contention that it was a law and order maintenance problem to be dealt with by the police has no substance, the National Commission in
Union of India through General Manager, Western Railway, Bombay v. Manoj S. Pathak, II (1996) CPJ 31 (NC)= 1996 (2) CPR 132, has
considered the question and observed in para 6 thus :
(6) The main submission of Mr. V.V. Bagga, the learned Counsel for the Railway Administration is that the maintenance of law and order in the
Railway premises and compartments is the responsibility of Ministry of Home Affairs i.e. the Police Department and thus outside the purview of
Consumer Protection Act. It is not in dispute that the complainant had hired service of Railway Administration for consideration and if there is any
negligence of deficiency in service on the part of the Railway Administration, then it is a consumer dispute within the scope and ambit of Section
2(1)(d) of the Act. The complainant was entitled to be carried safely in the train upto its destination in the reserved compartment. However if any
person enters into any reserved compartment unauthorisedly, then besides being liable for criminal prosecution he can be removed from the
Railway compartment by any Railway servant or by any of the persons whom such railway servant may call to his aid (see Section 147(2) of the
Railways Act, 1989). The Railway Administration neglected in checking the entry of unauthorised persons in the reserved railway compartment
and then failed to remove them forcibly for which they are duly empowered by the statute.
The Supreme Court in a recent decision of P.A. Naraian v. Union of India, III (1998) SLT 16=AIR 1998 SC 1415 a case where the passenger
was robbed and assaulted while travelling in local train, evidence showed that Guard and Motorman failed to stop train inspite of ringing of alarm,
awarded compensation of Rs. 2 lakhs under Section 124, holding a case of death due to untoward incident as defined under Section 123(c) and
observed in para 10 thus :
10. We are resting our case on the breach of common law duty of reasonable care, which lies upon all carriers including the Railways. The
standard of care is high and strict. It is not a case where the omission on the part of the Railway officials can be said to be wholly unforeseen or
beyond their control. Here there has been acomplete dereliction of duty which resulted in precious life being taken away, render for the guarantee
under Article 21 of the Constitution illusory. Had the deceased not pulled the alarm chain with a view to stop the train, the position might have been
different. Liability in this case is fault based. Such a liability is not inconsistent with the scheme of the Railways Act of 1890 either (Refer Section 80
with advantage). The proof of a fault in this case is strong and Mr. Goswami has not rightly challenged it either. To relegate the appellant to
approach the Railway Claims Tribunal or the Civil Court, as suggested by Mr. Goswami, does not appear to us to be proper. More than 17 years
have already gone by since the occurrence and, therefore, it appears appropriate to us to give a quietus to this litigation now.
7. IN the case in hand as discussed above the affidavits of Travelling Ticket Examiner, Attendant and Railway Police Constable, have not been
filed to demonstrate that they discharged their duties with reasonable care to see that the unauthorised persons do not enter into reserved
compartment and if entered, they are removed. IN fact no reasonable care in discharge of the duties by the servants of Railway Administration and
the Railway Police Constable was taken of safe travel of passengers of their person and property. Therefore, the District Forum rightly held that it
was a case of deficiency in service.
The crimes in trains are increasing day- by-day. To curve the crime in trains, the Railway Administration, its servants and the Railway Police Force
have to make all arrangements in removing unauthorised persons so that the robberies, loot, theft, assaults or other crimes may not be committed in
the train and the passengers who hold valid and reserved tickets may travel without any fear of their person and property. The Railway
Administration and its servants cannot escape their responsibility of safe carriage of passengers, that law and order problem is of Central or State
Government.
8. THE case of Kasturilal (supra), relied by the learned Counsel for the appellants is of no help and is distinguishable on facts as in that case
tortious act was committed by public servants in course of their employment and in exercise of their statutory functions delegated to them by the
Government.
Re. Compensation : The District Forum for the inconvenience, harassment, mental and physical agony because of the dereliction of duties and
negligence of Railway Administration and its servants amounting to deficiency in service under Section 2(1)(g) of the Act has awarded
compensation of Rs. 50,000/-. While the compensation for deficiency of service was claimed of Rs. 25,000/-. The District Forum has not
recorded any reasons to award the compensation more than the amount claimed. In the circumstances, the submission of the learned Counsel for
the appellants deserves consideration that the compensation of Rs. 50,000/- could not have been awarded more than the amount claimed.
Therefore, we are of the view that the respondents/complainants would be entitled to Rs. 25,000/- only as compensation.
Re. Interest : The District Forum has awarded interest @ of 12% per annum from the date of occurrence for which the complaint was filed before
the District Forum at Rewa, which had no territorial jurisdiction. For the presentation of the complaint in the Forum which had no territorial
jurisdiction till the date of representation the opposite .parties cannot be made to suffer and to bear the burden of interest as the delay of four years
cannot be attributed to opposite parties. Therefore, we are of the view that the complainant would be entitled to interest on the amount of Rs.
25,000/- from 15.5.1997 till its payment and not from 16.1.1993.
9. IN the result, the appeal is partly allowed. The order of the District Forum shall stand substituted as indicated hereinabove. However, in the
circumstances, the appellants shall bear the costs throughout which are quantified at Rs. 5,000/-. A copy of this order be conveyed to parties and
a copy be sent to District Forum with the record of the case. Appeal partly allowed.