CONSUMER PROTECTION WITH RESPECT TO INDIAN RAILWAYS

INTRODUCTION

Consumer service isn’t a department, it is a part of everyone’s job. Customer service is an integral part of business. It’s the part we should not neglect because when we ignore our customers, we tend to risk the success of our business. ‘Customers are kings’- this should be the catchword while running any business. Customers are the only purpose of any business. There are a variety of situations where the consumers are taken for granted and they are expected to deal with the unsatisfactory services. The Government of India has brought in various legislation in order to protect the customers from such harassment and frauds.

The Consumer Protection Act was implemented in 1986 in order to provide better protection to the rights of the consumers and to ensure that the consumers’ interests are safeguarded. Prior to the implementation of this Act, there was no special act for protecting the consumers and the only remedy available to the consumers was to file a civil suit for damages against the service provider under the Law of Torts.

THE CONSUMER PROTECTION ACT, 1986

Consumer Protection is a term given to a practice wherein we need to protect the consumer from the unfair practice, educating them about their rights and responsibilities and also redressing their grievances. The consumer protection act was enacted in the year 1986 with the primary aim of protecting the consumers from all unfair practices. The main objectives of the Consumer Protection Act are as follows-

• To promote and protect all the six rights of the consumers namely Right to Safety, Right to Information, Right to Choose, Right to be heard, Right to seek Redressal and Right to Consumer Education.
• To provide simple and speedy disposal to the cases by providing quasi-judicial machinery for the redressal of consumer disputes.
• The act also aims to provide inexpensive redressal to the issues of the consumer.
• A consumer dispute redressal forum in district, state as well as national level has been set up in order to settle the disputes of each and every consumer across the country.

MAJOR PROVISIONS UNDER THE CONSUMER PROTECTION ACT

1. Service

According to Section 2(1)(o) service means any description or any facility which is provided to the potential users and is not rendered free of charge or under a contract of personal service. Service can be of any types- thus includes banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging, housing construction, entertainment, amusement or spreading of news and other information.

2. Defect in Goods

According to Section 2 (1) (f) of the Act “defect” means any fault, imperfection or shortcoming within the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.

3. Deficiency in service

Deficiency, according to the Section 2 (1) (g) of the Consumer Protection Act, 1986, means ‘any fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance. Such quality and manner of performance of service should have been required to be maintained by or under any law for the time being in force or undertaken to be performed by a person in pursuance of a contract or otherwise.’ The deficiency must be in relation to a specific service. This section is the broadest part to deal with under the Act.

WORKING OF THE CONSUMER PROTECTION ACT

According to the Preamble, the purpose of the Act is to provide for the better protection for the interests of the consumers and to make provisions for the establishments of consumer councils for the settlement of consumer disputes.

Deficiency of services- the most interpretable part of the Consumer Protection Act. Consumers has to figure out when a service is to be considered as deficiency in service and what are the different kinds of services falling in this category? The courts from time to time has identified a large number of categories of services as ‘deficiency in services’ after the commencement of the Consumer Protection Act, 1986 which can be termed as dimensions of deficiency in services. It can be grouped broadly into various categories. In this article, I will discuss about the deficiency of services of the Railways and how effectively and efficiently the Consumer Protection Act deals with it.

DEFICIENCY IN SERVICE OF THE INDIAN RAILWAYS

Railway Department, the best example of monopoly market in India, is amongst the largest public sector undertakings. It is a major means of commutation for most of us either for work or pleasure.  Railway department of India is also regulated by different statutes. Still we can see the deficiency of services is increasing. Trains are habitually late, long-distance trains are sometimes found to be without water and electricity due to lack of care and maintenance; ticket collectors and travelling ticket examiners do not bother to check unauthorized entry of passengers in reserved compartments, there are several cases of theft also due to the unauthorized entry of passengers. The most pathetic situations are the washrooms. The list can go on unendingly. Railway accidents are common nowadays. Though accidents are inevitable, still there are many such cases where the accidents occurred due to the negligence of the drivers. We all whinge about all these things but hardly take any actions against the railways.

We certainly have some legal rights regarding deficiency in the service of the railways and we need to know the remedies available under the Consumer Protection Act.

The railways enjoy the power of monopoly, but it must not be negligent. We do have various legislation to deal with such cases and protect the consumers. But problem arises to decide the jurisdiction under which a particular problem is to be dealt.

JURISDICTION OF COMPLAINTS

Consumer protection act is a general Act for the protection of all sorts of consumers. Besides this, there are other jurisdictions under which one can report about the deficiency of services of the railway department. For example, If the death of a person is caused by negligence of the railways, the complainant can approach the court under the Railway Act as it provides a special jurisdiction for such cases. The Consumer Protection Act, although provides remedies in such cases.

REMEDIES UNDER THE CONSUMER PROTECTION ACT 1986

 The consumer protection act provides remedies in cases of deficiencies in the railway service provided to consumers. In case of any deficiency of service, the aggrieved party can approach the District Consumer Forum. In case no remedy is been provided, they can approach to the State and National Forums, respectively. There are few case laws that are been analysed so as to understand the courts handling the case of deficiency of services by the Railways. The cases are related to intense hurt and negligence of Railways due to deficiency of services.

Important Case Laws

1. South Eastern Railways v. Yeshwant Tiwari & Others

Facts: The complainant No.1 with his family travelled in the reserved compartment of Railways, water was not available in the toilet. The water pipe had broken and as a result there was no facility of water at all. The complainant said that he and his family suffered on that account it being the summer month. In spite of complaints nothing was done to repair the broken pipe. Other passengers had also complained. Railways mainly denied whatever the complainants said. The case went to the consumer forum. District Forum held in favour of the complainants and awarded Rs. 10,000/- as compensation. Railways went for appeal to the State Commission, which upheld the order of the District Forum.

Issue: Whether it was a deficiency in service by the Railways?

Held: The National Commission observed that there is concurrent finding by the lower Forums against the Railways. Moreover, it has not been denied that Railways was required to see the availability of water in the train. Thus, there was deficiency in services by the Railways. National Commission refused to exercise its jurisdiction under clause (b) of Section 21 of the Consumer Protection Act, 1986. Order of State Commission was upheld and Rs. 10,000/- awarded as compensation.

2. Jatinder Saxena v. Union of India

Facts: Jatinder Saxena(complainant) along with his family were returning from the wedding of his daughter. They came to Jalandhar and changed their train and then boarded Shalimar Express from Jalandhar to Pathankot after purchasing the ticket for General Compartment. One of the relations was handicapped on account of some injury on his right leg. Therefore, the TTI asked him to shift within the handicapped compartment. He along with Meenu, complainant’s wife shifted to the handicapped compartment. Meenu was sitting on the lower berth and all of a sudden there was a jerk which led the upper berth to become loose and fell down on Meenu. This hit her cervical region and the top passenger fell over her. Meenu suffered injuries in the backbone which was later found out to be fractured. The train was not made to stop, and the complainant, knowing about the injury, came into the compartment in order to help her. He arranged for the stretcher to take her to the hospital. As it was a medico-legal case the concerned Doctors inquired about the Police Report. The complainant lodged a complaint to Railway Police about the incident. The doctors referred Meenu to PGI Chandigarh and when she was taken there, there was a lot of rush of patients and thus she was shifted to Indus hospital. She had an operation, and the complainant spent Rs. 2,26,524/- in addition to other expenses and medicines for her treatment. She was in serious condition as her entire body from the neck was paralyzed. She was sent home and admitted to the Civil Hospital and a huge amount was spent in the hospital. The complainant’s wife died. It was mainly due to the injury suffered for the negligence on the part of the Indian Railway for not properly maintaining their railway compartment.

Issue: The jurisdiction of the consumer forum was in question. Whether this case can be dealt in consumer forums or not?

Held: It was held that the Consumer Forum under the Consumer Protection Act has jurisdiction to decide on the matter of this case. It was mentioned by the Court that after purchasing a railway ticket, a passenger is a consumer as he avails for the services of Railways. It is the duty of the Railway to maintain platform, footpaths, over-bridges in good order for the passengers. This case cannot be said as an ‘untoward incident.’ Thus, it was held that the District Forum has the right in deciding this case of deficiency of service and negligence in providing good order service to complainant and Meenu. An amount of Rs. 8,70,000/- was awarded as compensation.

3. Union of India v. Kedar Nath Jena and Others

Facts: The complainant, an advocate, purchased tickets from Cuttack to Bangalore in order to take his son for treatment there. The Gauhati Express train which was to leave Bangalore at 10.30 p.m. on 09/06/1990 started at 9 a.m. on 10/06/1990. The complainant suffered inconvenience and also incurred huge expenses because he had to hire a lodging room.

Issue: Whether the act can be called as a ‘deficiency of service’ of the railways?

Held: The Railways failed to give reasons for the delay. It was held as a ‘deficiency in service’ under the Consumer Protection Act. Each of the complainants was thus awarded Rs. 500/- as compensation.

4. Meenakshi Sundaram v. G.M. Southern Railway

Facts: The complainant purchased a railway ticket at Tiruchirappalli for his return journey from Madras on 14.4.1990 by A.C. Chair Car in Vaigai Express. His name was in the waiting list. After confirmation from Madras, he was informed that he was No. 3 in the waiting list. It was found that the Railways superseded the complainant and allotted the reservation to some VIPs. He had to travel in a non-AC compartment. Thus, he filed a complaint in the consumer forum Under Section 17 read with Section 12 of the Consumer Protection Act 1986 claiming damages for the mental and physical sufferings undergone by him.

Issue: Whether the said act by the Railways can be considered as a deficiency of service and can it be dealt in the Consumer Forum?

Held: The State Commission held the Railway Department liable for deficient service and awarded Rs. 1000/- and Rs. 300/- to the complainant.

5. General Manager Northern Railways and another v. Amarnath Agarwal

In this case the gold chain of complainant’s wife was snatched when she was travelling in the reserved coach. At that time, even the electric light and alarm chain in the coach were not working. The Railway authorities did not take any necessary step to arrest the culprits. The case was dealt in the District Consumer Forum under the Consumer Protection Act. It was held that this was definitely a deficiency in service of the railways. The complainant was thus awarded Rs. 32,000/- as the cost of the gold chain and compensation for mental agony.

 

There are many cases where the Consumer Redressal Forums have provided effective remedies to the consumers. But in some cases, the jurisdiction of the Consumer Forums is questioned. Those are not as effective in dealing with some cases. For the better and speedy disposal of such disputes regarding the Railways, the Government of India established ‘Railway Claims Tribunals’ under the Railways Claims Tribunal Act 1987 and also the ‘Railways Act’ 1989.

REMEDIES UNDER THE RAILWAYS CLAIMS TRIBUNAL ACT, 1987

Section 13 of the Act gives the Jurisdiction, the appropriate authority of the Tribunal to deal with such cases. The powers are in relation to the Railways Act with respect to compensation for loss, destruction, damages, in respect of the claims of refunds etc. Section 124 of the Railways Act deals with the conditions where the railway is liable for the fault. Section 123(c) of the Railways Act gives the provision for ‘Untoward incidents.’ Section 124(a) of the Railways Act states for provision for compensation on account of ‘untoward incidents’ viz. any terrorist act, robbery, accidental falling of a passenger from a running train etc. However, there is no express provision under these Acts which deals with the loss of personal luggage of a passenger. In such cases, the aggrieved party can approach the Consumer Forums. Some of the important cases of consumer grievances dealt under the jurisdiction of this Act are stated below.

Important Case Laws

1. Union of India & others v. Nathmal Hansaria and another

Facts: Kabita Hansari, a 21-year-old girl (the daughter of the complainant) was travelling in Tinsukia Mail from Delhi to Gauhati. The toilet in her coach had no water, so she decided to use the toilet in the next coach. The interconnecting passage was not protected by any side grills. When she was walking on it, the train gave a jerk and she fell right on the railway track below and got crushed under the train.

Issue: The main issue was- whether the complaint can be dealt in Consumer Protection Forum in view of the provision of Section 13 read with Section 15 of the Railway Claims Tribunal Act, 1987?

Held: It was reasoned that the death was an accidental death, but it could not be described as a result of Railway accident as the presence of the safety device could have prevented this accident. The State commission awarded Rs. 2 lakhs as compensation for her death (under the Railway Accidents Compensation Rules, 1990) and Rs. 25,000/- for mental agony to the parents.

2. Rakesh Patralekh v. Union of India

Facts: Prof. Kameshwar Patralekh, the father of the complainant along with his wife boarded Tata PNEB Express train at Jasidih railway station. They had a reservation till Patna which was running two hours late. Due to Puja, there were no vendors at the platform and shops at the railway station were closed too. The father of the complainant went to purchase something to eat and after returning, when he tried to board the train, it suddenly moved with a heavy jerk. He fell in between the train tracks and his left leg was cut. The Railway staff did not stop the train by pulling the chain. When he was moved to the Railway Hospital, due to excessive bleeding, he died.

Issue: The main issue was- if a complaint of this type can be brought before the Consumer Dispute Redressal Forum in view of the provision of Section 13 read with Section 15 of the Railway Claims Tribunal Act, 1987?

Held: The complaint was not justifiable under the Consumer Protection Act, 1986. This incident was considered as an ‘untoward incident’, covered under Section 124(a) of the Railways Act. So, this can be dealt only by the Tribunal and no court or other authority has jurisdiction on such matter. The complaint was thus dismissed for not being maintainable under the Act.

3. Union of India v. Ashok Shankar Sarkale

In this case, some local unknown goondas entered into the train and started quarreling with the passengers. They had also thrown out two passengers off the running train, later both of them were found dead. For the matter, the jurisdiction of the Consumer Forum was in question.

The Bombay High Court held that the particular incident was not on the part of the Railways and was defined as an ‘untoward incident.’ This cannot be considered as deficiency of service. The consumer forum has no jurisdiction in this matter. The case can only be dealt under the Railways Tribunals Act.

• CONCLUSION

In order to decide where the jurisdiction of a particular case lies- whether under a consumer redressal forum or the Railway Tribunal, the facts of the case have to be correctly interpreted. To a large extent, it depends on the facts of a case. Thus, for a clear clarification in terms of the jurisdiction of a case, we can conclude that-

• When a customer buys a train ticket, he becomes a consumer. Any incident regarding to the services (deficiency in service), the case can be dealt under the Consumer Forum.
• The accident cases due to collusion or railway accidents or untoward incidents comes under the jurisdiction of Railway Tribunal even though the complainant have bought the ticket and becomes a consumer for the railways.

we can represent the jurisdiction like-

CONSUMER PROTECTION ACT, 1986 <—-CONSUMER PROTECTION & RAILWAYS—->RAILWAY CLAIMS TRIBUNAL ACT, 1987

Author: SHINJINEE NAMHATA,
IFIM LAW SCHOOL, BENGALURU, 1st YEAR BBA-LLB