In this article, Shreya Mazumdar pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata discusses the deficiency of service in the railways sector in India.
Introduction
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 statutes in order to protect the customers from such harassment and fraud. Consumer Protection Act is one of them that protects the consumers from deficiency.
Services under the Consumer Protection Act
The Act has defined the term “services” which includes the facilities that is in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information and does not include services free of charges or under a contract of personal service.
There a list of eleven sectors where this Act applies when it comes to services that are supposed to be provided and breach of such services in such areas lead to sanctions under the Act. Services under Consumer Protection Act takes into consideration a regular commercial transaction. There is no difference if a statutory corporation provided a deficient service, it can be made liable under the Act.
Deficiency of services
“Deficiency of services” is one of the aspects where any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance that is supposed to be maintained by or under any law for the time being in force. This also includes a contract that has to be undertaken to be performed by a person in pursuance of a contract or something that is in relation to any services.
Deficiency of service in the Railways in India
Railway Department of India is one of the largest public sector undertakings in India. It is a major means of commutation for most of us either for work or pleasure. Railway Departments is also regulated by various parliamentary statutes. Although the inefficiency of the railways is on the rise. Trains are unfathomably late, passenger holding a reserved ticket does not get the assigned seat; long-distance trains do not have the basic services like water in the washroom, poor electricity due to lack of maintenance and uncared berths. There have been incidents where the passengers have lost lives due to the dilapidated situation of the railways. There is a case where the petitioner boarded the train and the compartment in which he was travelling with his wife has a gruesome state where shape-fans did not work, shutters of the window did not work, the resin of the upper berth was badly torn and there were rusty nails which caused some injury to petitioner’s wife. The petitioner made a complaint to the railway department. It was held that the complaint constituted ‘deficiency in service’. The petitioner was awarded a compensation of Rs. 1500.
The other and more tragic case was of Kabita Hansari where the 21-year-old was travelling in Indian Railways from Delhi to Guwahati. The toilet in her coach has no water so she decided to use the toilet in the next coach. The interconnecting vestibule that she has passed through did not have a side grill for protection and as she walked on it, the train gave a jerk and she fell right on the railway track below and got crushed under the train. A compensation of Rs. 2,25,000/- was awarded to the family member of the deceased.
Although the railway department enjoys its monopoly in this situation how negligent can it be? Even though we have various statutes in the favour to protect the consumers and railway passengers but where does the jurisdiction to decide on such cases lie?
Jurisdiction of complaints
There is a conflicting issue where the decision to decide on the jurisdiction with regards to accidents relating to deficiency of services or negligence on the part of railways is complicated to decide. If the death is caused by negligence on the part of the railways which court the complainant can approach as the Railway Act provides a special jurisdiction for such cases although a passenger can be called as the consumer, who attains the services from the railways and a breach on those services will land such cases to Consumer Tribunal.
Deficiency of services involves a lot of aspects which relates to services like banking, financing, insurance, transport, processing, the supply of electrical or other energy, board or loading or both, housing construction, entertainment, amusement or the purveying of news or other information.
Railway Claims Tribunal
The Railways in order to be regulated comes within the preview of the state which is provided in Article 12 of the Constitution of India. As the representative of Union of India, it is expected from the railways that they work with utmost sincerity and caution. After the enactment of the Railway Claims Tribunal Act, 1987 all claims with respect to the death and injury of the passengers due to railway accidents can be filed and decided by the Railway Claim Tribunal. As per the Central Government formulated the Railway Accident (Compensation) Rules, 1990 which prescribed the maximum limit of compensation to be Rs. 8 lakh and the interest can be availed by exercising the remedy under the Act of 1987. Section 128 of the Railways Act, 1989 provides for an alternative remedy option to the claimant and says that the right of any person to claim compensation under Section 124 shall not affect the right of any such person to recover compensation payable under the Workmen’s Compensation Act, 1923, or any other law for time being in force; but no person shall be entitled to claim compensation more than once in respect of the same accident.
India also has a statute as mentioned before, called The Consumer Protection Act, 1986 which provide remedies in case of deficiency in services. Section 3 of the Consumer Protection Act mentions that the provisions of the Act will be in addition to and not in derogatory of the provision of other laws for the time being in force. In case of deficiency of services that are provided by Railways, a complaint can be filed before the District Consumer Forum or other authorities under the aforementioned Act of 1986.
There are few case laws that have been analysed in order to understand the courts dealing with the case of deficiency of services by the Railways. The cases are with respect to intense hurt and negligence of Railways due to deficiency of services and the question of jurisdiction in such cases.
Case Study
There is various case law from the time period of 1997 to 2017 that has been discussed. The main issue is the jurisdiction, that is if the case should be decided by the Consumer Court or the Railway Tribunal. The decision lies in the fact, that if the passengers travelling on the train is considered to be a customer using the services of the Railways. It also has to prove if the incident is covered under “untoward incident”, under the Railways Claims Tribunal Act, 1987. “Untoward incident” is defined under Section 123(c) of the Railways Act which includes responsibilities of the railway administration with respect to claims for compensation for loss, damage, destruction etc.
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Union of India & others v. Nathmal Hansaria and another
Facts
Kabita Hansari where the 21-year-old was travelling in Indian Railways from Delhi to Guwahati. The toilet in her coach has no water so she decided to use the toilet in the next coach. The interconnecting vestibule that she has passed through did not have a side grill for protection and as she walked on it, the train gave a jerk and she fell right on the railway track below and got crushed under the train.
Issue
The issue was if a complaint of this nature could be brought before the Consumer Dispute Redressal FORA in view of the provision of Section 13 read with Section 15 of the Railway Claims Tribunal Act, 1987?
Law Applied
Section 13 of the Railway Claims Tribunal Act, 1987 mentions the jurisdiction, power and authority of claims Tribunal when Railway administration is responsible in respect to claims for a loss, destruction, damage etc. for animals or goods that is entrusted to a Railway administration for carriage by Railway.
Section 15 mentions that no other Court or authority shall have or be entitled to exercise any jurisdiction, power or authority for matters relating to Section 13(1).
This case also attracts Section 124 of the Railways Act, 1989 under which if an accident occurs or there has been any wrongful act, neglect or default on the part of the railway administration such would entitle a passenger to get compensation against such harm.
Held
It was held that under Section 124 of the Railways Act, the death of a passenger while passing through from one compartment to another due to the absence of safety devices in the passage is not considered to be a “Railway accident”. 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 after looking into the circumstances, held that the Railway passenger was a consumer in this case and awarded Rs. 2 lakh and Rs. 25,000/-. And the compensation for death in case of a Railway accident under the Railway Accidents Compensation Rules, 1990 is Rs. 2 lakh. The order to State Commission was confirmed and appeal of the Railway Ministry is dismissed with no order as to costs.
Analysis: By the above case law, it is reflected that in order to be covered under the Railways Act and have the jurisdiction under this Act, it has to be proved that there has been an accident or damage during the travel as a passenger of the trail. The concept of ‘consumer’ will not come into play, that is, there is no fault of the services of the railways as such. In order to find a claim under the Railways Act, there has to be a mishap that would cause the accident and the services of the trains are not to be blamed.
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Rakesh Patralekh v. Union of India
Facts
The father of the complainant Dr Prof. Kameshwar Patralekh, along with his wife boarded Tata PNEB Express train at Jasidih railway station. They have a reservation up until Patna which was running two hours late. Due to The Chhat Puja, there were no vendors at the platform and shops at the railway station were closed. The father of the complainant went to purchase something to eat and after he returned and tried to board the train, it suddenly moved with a heavy jerk. The deceased fell in between the train tracks and his left leg was cut and the Railway staff did not stop the train by pulling the chain. When the deceased was moved to the Railway Hospital he had excessive bleeding because of which he died.
Issue
The issue was if a complaint of this nature could be brought before the Consumer Dispute Redressal FORA in view of the provision of Section 13 read with Section 15 of the Railway Claims Tribunal Act, 1987?
Law Applied
Section 13 of the Railway Claims Tribunal Act, 1987 mentions the jurisdiction, power and authority of claims Tribunal when Railway administration is responsible in respect to claims for a loss, destruction, damage etc. for animals or goods that is entrusted to a Railway administration for carriage by Railway.
Section 15 mentions that no other Court or authority shall have or be entitled to exercise any jurisdiction, power or authority for matters relating to Section 13(1).
This case also attracts Section 124 of the Railways Act, 1989 under which if an accident occurs or there has been any wrongful act, neglect or default on the part of the railway administration such would entitle a passenger to get compensation against such harm.
Held
The complaint was not maintainable under the Consumer Protection Act, 1986. It was held the incident like leg capitation followed by death due to excessive bleeding was an incident under ‘untoward incident’. Thus, it was covered by section 124A by the Railway administration shall be dealt only by the Tribunal and no court or any other authority shall have jurisdiction on such matter. The complaint was thus dismissed for not being maintainable under the Act.
Analysis: It can be analysed for the above case that the case does not fall under the Consumer Protection Act, 1986 as it was not the services of the train that was at fault but it was an accident that was caused and in addition to that there was a negligence on the part of the Railway staff for not stopping the train in order to take care of the passenger when the accident occurred. It was not due to the service of the railway that the deceased was involved in the accident but it was an unfateful accident that had occurred which is covered under the Railways Act, 1989.
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Union of India v. Rajiv Kumar Tandon
Facts
The complainant bought a ticket from Muktsar Railway Station for boarding train 4FK from Muktsar to Kotkapura. The complainant was sitting by the window and he tried to roll down the window but due to some defect, it could not be rolled down. As the train was pacing at a faster speed a piece of concrete flew in the air and got stuck with the iron rod of the window and thereafter struck against the head of the complainant. This was reported in the daily diary register with the concerned police. When the train reached Kothapura, the complainant was taken to the Civil Hospital by his brother. He had to get an operation which was conducted upon him and he was admitted to the hospital for approximately 15 days.
Issue
The issue was if a complaint of this nature could be brought before the Consumer Dispute Redressal FORA in view of the provision of Section 13 of the Railway Claims Tribunal Act, 1987?
Law applied
Section 123(c) of the Railways Act defines the “untoward incident”. This included responsibilities of the railway administration with respect to claims for compensation for loss, damage, destruction etc.
Held
It was held that the Railway Claims Tribunal has no jurisdiction, in this case, is not an “untoward incident”. Referring to cases like Rakesh Patralekh v. Union of India and Union of India, Western Railway & Anr. v. Shakuntala Nageshwar Patil where accidents and deaths were caused by Railway accident and Railway Claims Tribunal was ascertained to be competent authority. But this case was deficient service simpliciter on the part of the opposition. The complainant was considered to be the consumer by way of purchasing the railway ticket and thus hiring the services of the respondent. The case of Union of India v. Nathmal Hansaria and Anr. was referred where the railway passenger was considered to be a consumer.
Analysis: This case portrayed that the Railway Claims Tribunal has no jurisdiction as the services of the train was a defect and the injured will be considered to be a consumer as the services were defective which puts the entire case under Consumer Protection Act, 1986. It can also be questioned that if the facts were different and the complainant had just kept the window open and there is no defect with respect to the window, and due to the fast moving of the rain a concrete would have flown in the air and injured the complainant, would the situation be called as “untoward accident”? Such case would have been reasonably taken under the Railways Act, and considered to be “untoward accident” as there was no problem with the services.
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Jatinder Saxena v. Union of India
Facts
The complainant 1 Jatinder Saxena along with his family were returning from the wedding of complainant no.1’s daughter. They came to Jalandhar and changed their train and thereafter boarded Shalimar Express from Jalandhar to Pathankot after purchasing the ticket in General Compartment. As one of the family members was handicapped on account of some injury on his right leg so the TTI asked him to shift in 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 Smt. Meenu. This hit her cervical region on the back of the neck and the top passenger fell on top of her. Therefore, due to the incident, Meenu suffered injuries in the backbone which was later found out to be fractured. The train was not made to stop and the complainant no.1 came to know about the injury and 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 enquired about the Police Report. The complainant no. 1 lodged a complaint to Railway Police Chowki about the incident with the railway police. The doctors referred Smt. 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 was operated upon and treated and the complainant spent Rs. 2,26,524/- in addition to other expenses and medicines on her treatment. She was in serious condition as her entire body lower than the neck was paralyzed. She was sent home and admitted to the Civil Hospital and a total of Rs. 2,57,721/- was spent in the hospital. The complainant’s wife died due to the injury suffered which was due to 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
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 would be a consumer as he avails for the services of Railways. It is the duty of the Railway to maintain in good order, platform, footpaths, overbridges for passengers and other basic amenities. Section 124 of the Railways Act deals with an accident which included accidents like the derailment of part of the train or any other reason for a collision of two trains. The Court said, “untoward incident” speaks of the accidental falling of any passenger from a train carrying passengers. Thus it was held that the District Forum has the right in concluding the case of gross negligence and deficiency of service in providing good order service to complainant and Mrs Meenu. A compensation of Rs. 8,70,000/- was provided.
Analysis: This is one of the latest cases where the service provided by the railways was defective which let to the current case and rightly decided by the Consumer District Forum.
Conclusion
It can be concluded that in order to decide the jurisdiction by the National Commission or the Railway Tribunal the facts of the case have to be correctly interpreted and presented therefore a minor change in facts will change the jurisdiction entirely. Thus, in order to get a clarity in terms of the jurisdiction, when a customer buys a train ticket he becomes a customer, any incident relating to the services or neglect by the Railway department with regards to the services brings the case under the Consumer Forum. The cases relating to accidents with respect to collusion or railway accidents or untoward incidents fall under the jurisdiction of Railway Tribunal even though the complainant might have bought the ticket and will be a customer but in this case the jurisdiction shifts to Railway Tribunal as the question is not with respect to services of the railways but the accidents involved.
