BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR
QUORUM
President : Shri Sanjay Garg
Member : S. Tarlok Singh
C.C. No. 210 of 2008
Date of Institution: 28.5.2008
Date of Decision: 19.11.2008
Yashwant Rai Puri, aged about 33 years, son of Shri Jagdish Rai Puri son of Shri Amolak Ram Puri, Street No.10/11, Radha Swami Colony, Fazilka.
……Complainant
Versus
Northern Railway, through its Senior Divisional Engineer-I, Ferozepur Cantt.
….Opposite Party
Complaint under Section 12 of
The Consumer Protection Act, 1986.
* * * * *
PRESENT :
For the complainant : In person
For the opposite Party : Sh. R.P. Sethi, Advocate
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OREDR
SANJAY GARG, PRESIDENT :-
As per averments, the brief facts of the complaint are that the
complainant availed the services of Railway authorities by purchasing a Railway ticket No. 91594093 dated 10.05.2007 for Rs.17/- for his journey from Ferozepur Cantt to Fazilka. After purchasing the ticket, when complainant was waiting for the train at the Railway Platform , Ferozepur Cantt, two persons were also sitting near to him. One of them was Joginder Kumar Narang son of Amar Nath. It is further averred that the other person, who was also sitting near them, started smoking. The complainant requested him not to smoke, but he told the complainant in a rough language that he would not stop smoking and also disclosed his identity as Amar Nath, Chowkidar of Railway Station, Ferozepur Cantt. It is further averred that the complainant told him that smoking is prohibited at Railway Station and being an employee of Railways, he should not smoke and if he would not abide by the law, then who would stop the others from smoking at Railway Station. But the abovesaid Amar Nath did not hear to the request of the complainant and also misbehaved with him. He also challenged the complainant to file a complaint against him, to any person, but he will not
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stop enjoying smoking at any costs. It is further averred that complainant has suffered mental harassment, agony , physical strain and even emotional insult. It has been further averred that no officer had been deputed by the opposite party at the Railway Station to control the smoking at Railway Station. In these compelling circumstances, the complainant filed a complaint with the concerned officer of Northern Railway Station, Ferozepur Cantt. It has been further averred that Railway authorities have failed to take any action against the guilty persons despite smoking prohibition Laws in force. Even the Railway authorities suo moto did not inform the complainant as to what arrangements have been made by them for preventing smoking at Railway Station and even the opposite party failed to inform the status of the complaint of the complainant. The complainant has also moved several applications to the opposite party under the Right to Information Act, but the opposite party failed to give satisfactory reply. With
these grievances, the complainant has pleaded deficiency in service on the part of the opposite party for not making proper arrangements for preventing smoking at Railway Station and claimed that the opposite party be directed to pay an amount of Rs.40,000/- as compensation for mental harassment,
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agony, physical strain and emotional insult suffered by the complainant. A direction has been sought against the opposite party to depute certain officers at Railway Station to stop the people from smoking at Railway Station and to comply with law relating to prohibition of smoking at Railway Station. An amount of Rs. 5000/- has been claimed as costs of instant complaint. The complainant has also sought a direction for providing a copy of report of enquiry conducted against the said Amar Nath, Chowkidar.
2. Notice of the complaint was given to the opposite party, who appeared through counsel and filed written version to the complaint . The opposite party pleaded ignorance as to journey taken on 10.5.2007 by the complainant. It is pleaded that every T.T.E/TC on platform or in the train has been authorized to check the smoking. It has been further pleaded that total 430 persons were found smoking in trains and platform during the checking till date, as disclosed by the Senior Divisional Commercial Manager, Northern Railway, Ferozepur vide his letter No. 1231-TT/FKA/07 dated 9.8.2007 which was addressed to the complainant in reply to his application under the Right to Information Act. Regarding the complaint
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lodged by the complainant, it has been alleged that Station Superintendent of the opposite party took action and forwarded the complaint to the Senior Divisional Commercial Manager, Northern Railway, Ferozepur, who further took action on the complaint as well as on the application of the complainant under the Right to Information Act.
3. It is further averred that Amar Nath was working as Khalasi in the office of Senior Sectional Engineer/Woks Northern Railway, Ferozepur and he was served with chargesheet and thereafter a penalty of withholding of one set of privileged pass was imposed upon him vide order dated 15.5.2007. It is further averred that in order to control the smoking at the Railway Stations, the Divisional Commercial Manager (c), Ferozepur had circulated the instructions vide his letter dated 23.4.2002. In reply to the application under Right to Information Act of the complainant, the opposite party has informed the complainant that all Area Managers of Station, T.T.E and Security Branch are authorized to take action in order to control the smoking at the Railway Station. It is further averred that the action has already been taken on the complaint and there is no negligence on the part of the opposite party. It is further averred that the complainant does not fall
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under the definition of consumer and complaint is not maintainable. Even the jurisdiction of the Forum to try and decide the present complaint, has been denied.
4. Parties led evidence.
5. We have heard the complainant in person and the learned counsel for the opposite party and also perused the documents on file.
6. Learned counsel for the opposite party also relied upon certain authorities, which we would discuss lateron . During arguments, learned counsel for the opposite party has argued that services offered by statutory bodies like Railways does not come under the purview of the Consumer Protection Act,1986. He further argued that complainant paid consideration for his journey through train only and as such no deficiency in service can be attributed on the part of the opposite party for not making arrangements etc. at Railway Platform, as no consideration has been paid by the complainant for facilities at Railway Platform.
7. From the pleadings and submissions of both the parties, following questions arise, which are to be decided by this Forum :-
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(i) Whether the opposite party is bound to make proper arrangements for preventing smoking at Railway Stations & trains ?;
(ii) Whether proper arrangements and facilities at Railway Station for preventing smoking have not been made by the opposite party ?;
(iii) Whether the complainant suffered loss of health, pain, harassment, mental agony and emotional insult due to smoking at Railway Station by an employee of Railways ?;
(iv) Whether the maintenance of the platform and other facilities, to be provided at Railway Station, as well as duty to make arrangement for prohibition of smoking at Railway station/platform comes in the definition of 'service', as defined in the Consumer Protection Act,1986 ?;
(v) Whether not making proper arrangement for prohibition of smoking at Railway Platform comes in the definition of deficiency in service ?;
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(vi) Whether this Forum has the jurisdiction to direct the Railway Authority for making suitable arrangements at Railway Stations & trains under its control so that the consumers/ passengers may not be suffered due to smokers ?;
(vii) Whether it is within the jurisdiction of this Forum to give certain directions, keeping in view the interest of consumers, who have approached this Forum, and also that of those numerous consumers, who have not approached this Forum ?;
(viii) Whether statutory bodies like Railways are amenable to the
jurisdiction of this Forum constituted under the Consumer Protection Act ?; and
(ix) Whether it is ground to exclude the jurisdiction of the Forum under the Consumer Protection Act that statutory bodies are bound to perform duties under any other statute and not under the Consumer Protection Act, 1986 ?
Question No. (i), (ii) and (iii) :-
8. In support of his complaint, the complainant has filed affidavit Ex.C-1 and the facts of the complaint are further corroborated by Sh.
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Joginder Narang through his affidavit Ex. C-14. Copy of the railway ticket Ex.C-2 further prove the journey taken by the complainant on 10.05.2007 . Ex.C-3 is copy of the complaint, which was lodged by the complainant with the Station Master, Northern Railway, Ferozepur. Ex.C-4 to Ex.C-13 are the copies of various applications and receipts thereof, sent by the complainant to the Railway authorities, whereby, the complainant has sought the information about the arrangement made by the Railway authorities regarding prohibiting of smoking at Railway Station and also about the number of cases in which the persons were found guilty and action taken thereof and also as to the action taken against Amar Nath, Chowkidar, who was alleged to be smoking at Railway Station and did not stop smoking despite request by the complainant, which compelled the complainant to file the instant complaint. The affidavit and documents produced by the complainant clearly proved that the complainant took a journey and he has suffered pain and humiliation due to smoking by an employee of the Railway Authority at the Railway Station and he was further pained to see that there was nobody on the Platform/Railway Station to check the smoking at Railway Station. The reply and the documents filed by the opposite party
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show that though the Railway authorities admit that smoking at Railway Station is prohibited under law, but pleaded ignorance about any inconvenience and harassment suffered by the complainant. However, the opposite party has written that certain persons like T.T.E ' /T.C. are authorized to take action against smoking, but the opposite party has not written in the reply as to what arrangements they have made to prevent the smoking at Railway Station and as to what action has been taken to prevent the harassment and humiliation and loss of health to be suffered by passengers at the hands of smokers. Most of the documents produced by the opposite party are only the replies to the various applications moved by the complainant under the Right to Information Act. It is apparently clear that Railway authorities failed to act on the complaint or to suitably reply to the complainant on his complaint and it is only when the complainant availed remedy under the Right to Information Act then they were forced to respond. A perusal of the letter No. 1231 dated 19.8.2007, Ex.R-2, whereby, the opposite party has replied to the application of the complainant under the Right to Information Act that only two passengers had been detected for smoking and fined Rs.200/- at Railway Station during May, 2007. It is
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further written that till date, Ferozepur Division has fined only 430 passengers, who were found smoking in trains and Railway station/platform during the checking. As per Clause ‘D’ of the said letter, all Area Managers are authorized to take action on a complaint regarding smoking at Railway Stations and as per Clause ‘E’ of the letter, smoking is prohibited in the trains and Railway stations.
9. Ex.R-16 letter dated 20.3.2002, which is reproduced as under :-
"No. 150-C/23/Pt. VI Office of the
Dated 20.3.2002 Divl. Rly. Manager
Firozepur
SSS/SMS FZR Divn.
CIT(Stn.) FZR, JUC, LDH, ASR, PTK, JAT, JRC
CIT (Line) FZR, JUC, LDH, ASR, PTK, JAT,
CMIs FZR ASR & PTK
DTM/JAT ATMs ASR, JUC & LDH
CCNL/FZR
Sub: Ban on smoking in the Rly: Premises and the trains-Supreme Court Judgement.
Ref:- Dy. CCM (G)No.42-AC/Bank on smoking/2002 dated 1.2.2002.
"In pursuance of the decisions of the Hon'ble Supreme Court, prohibiting smoking in the Railways, it has been decided that nobody will smoke in the Railway premises including Rail Bhawan, where
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there is located the Hd. Qrs. Of the Railways , all office buildings of the Railways, Railway Stations, Railway platforms and other premises where there are Rly: Establishments including the Rly: production units and also in the coaches of the trains. The provisions of Section 167 of the Railway Act, 1989 empowering Railway Administration to prohibit smoking in any train or a part of a train be emphasized while publishing these directions of the Hon'ble Supreme Court sub section (3) thereof provide whosoever contravenes these provisions shall be punishable with fine to the extent of Rs.100/- )one hundred)
The notice displaying the aforesaid direction may be exhibited at prominent places and all the above mentioned Rly: premises including Railway coaches, General & all the coaches i.e. AC class, sleeper class through Mechanical & Engineering department.
The 4 berths in IAC coach earmarked as smoking compartment should be discontinued forthwith. The plates fixed in the compartments advising the general public not to smoke if objected to by fellow passengers may be removed/obliterated immediately. The
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above instructions must also be announced on PAS frequently to prohibit the rail users to refrain from this bad habit "
These instructions come into force with immediate effect
Sd/
(G.P.Singh)
for Divl: Comml: Manager/C
Ferozepur"
10. Ex.R-14 is the copy of charge sheet served upon Amar Nath, Khalasi and vide Ex.R-15, said Amar Nath was punished of stoppage of one set of privileged pass.
11. So there is no rebuttal to the averments of the complaint regarding suffering of pain and harassment due to smoking by the employee of the Railways at Railway Station and further the serving of charge sheet and punishment thereof to Amar Nath, Chowkidar proves this fact. A perusal of the entire documents produced by the complainant as well as of the opposite party shows that though the Railway authorities admit that they are duty bound to prevent smoking at Railway Station so that the passengers and general public should not face harassment humiliation and loss of health at the hands of the smokers, but no suitable arrangement has been made by the
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Railway Authorities to prevent smoking in Railways. So these questions are decided in favour of the complainant and against the opposite party.
Question No. (iv), (v), (vi) and (vii) :-
Question No. (iv), (v), (vi) and (vii), being interlinked, are taken together for discussion :-
12. For answers to these questions, firstly, we have to go through certain definitions under Section 2 of the Consumer Protection Act :-
As per Clause (c) of Section 2 of the Consumer Protection Act, 'Complaint' means any allegations in writing made by a complainant that :-
(i) -------
(ii) -------
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect.
(vi) services which are hazardous or likely to be hazardous to life and
safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety.
As per section 2 (g):-
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'deficiency' means any fault imperfection shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any service.
(o) "Service " means service of any description which is made available to potential users and includes , but not limited to, the provisions of ) facilties in connection with banking financing, insurance transport, processing, supply of electrical or other energy board or lodging or both (housing construction ) entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
(oo) Spurious goods and services" mean such goods and services which are claimed to be genuine but they are actually not so
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( r ) Unfair trade practice means a trade practice which for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices namely:-
(i) ------
(ii) falsely represents that the services are of a
As per Section 14( d) of the Consumer Protection Act, 1986, which for facility of reference is reproduced below, it has been provided:-
"14 Finding of the District Forum :-
(1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to
(do) one or more of the following things namely-
(a) ----- -------
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(b) -------------
(c) ------------
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.
Provided that the District Forum shall have the power to grant punitive damages in such circumstances as it deems fit
(e) to remove the defects in goods or deficiencies in the services in question
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat them;
(h) to withdraw the hazardous goods from being offered for sale;
(ha) to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature;
(hb) to pay such sum as may be determined by it if it is of the opinion that loss or injury has been suffered by a large number of consumers who are not identifiable conveniently:
Provided that the minimum amount of sum so payable shall not be less than five percent of the value of such defective
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goods sold or service provided as the case may be to such consumers:
Provided further that the amount so obtained shall be credited in favour of such persons and utilized in such manner as may be prescribed;
(i) to provide for adequate costs to parties.
Section 2 (b) defined complainant as:
'Complainant' means
(i) a consumer;
(ii) ------
(iii) -------
(iv) One or more consumers where there are numerous consumers having the same interest.
13. A careful reading of Section 2 ( b) (IV) , Section 14 (h) (b) made it clear that a complaint can be made by the consumer on behalf of himself and also on behalf of other numerous consumer having the same interest. Reading of Section 2 (c) shows that complaint can be made if the services hired or availed suffered from deficiency in any respect. As per
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Section 2 (g) if any fault, imperfection, shortcoming or inadequacy in the quality , nature and manner of performance of service is there then it amounts to deficiency in service. A careful perusal of Section 2 (o) reveal that not only the service itself but the facilities attached to the service are also included in the definition of service.
14. As per Clause (r) (2) (ii) of Section 2 if there is false representation as to the standard, quality or grade of the service then it amounts to unfair trade practice.
15. A collective reading of Section 14 (e) 14 (f) 14 (ha) 14 (hb) read with Section 2 (b) (IV) clearly reveals that the Forum under the Consumer Protection Act has the jurisdiction not only to award compensation to the complainant but it can also order for the removal of deficiency in service and to discontinue the unfair trade practice and to withdraw the hazardous goods from being offered for sale; to cease manufacture of hazardous goods and to desist from offering services which are hazardous in nature, keeping in view the interest of the consumers, who have approached the Forum and the interest of numerous consumers, who have not approached the Forum.
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16. In Union of India & ANR Versus Alok Kumar, III (2007) CPJ 86, The Hon'ble National Commission, in a case where a dacoity took place in the railway compartment and gold ornaments and other valuable articles were looted Neither conductor nor coach attendant present in compartment., has held that it is a deficiency & negligence on the part of Railway and grant of compensation of Rs.50,000/- to the complainant was upheld by the National Commission.
17. In Sumati Devi M. Dhanwatay Vs. Union of India, II (2004) CPJ 27 (SC), where the theft of luggage took place and injuries caused to passenger by unauthorized passengers, the Hon'ble Supreme Court of India has observed that it is a case of negligence and deficiency of service on the part of the railway authorities. Earlier, when the above noted case was pending before the Hon’ble State Commission, it was observed by the Hon'ble State Commission on consideration of the facts and circumstance of the case that having regard to the past experience, the Railway Administration did not take reasonable steps to avoid such incident . It has also been observed by the Hon’ble State Commission that the Railway Administration well aware of the impending contingency that would happen as it was a yearly experience for them, failed to take precaution and
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preventive measures. It was also observed by the Hon’ble State Commission that the Railway Administration, inspite of their prior knowledge, had not made any efforts or devised measures to curb lawlessness indulged in by the ticketless trevellers. On appeal against the award of the compensation by the Hon’ble State Commission, the Hon'ble National Commission has expressed concern about the total absence of any steps having taken by the concerned Railway Administration to mobilize adequate police force sufficiently before hand when the occurrences of such mob-violence on stations enroute Nagpur to Bombay on Ambedkar Day has been a recording phenomenon every year. The Hon'ble Supreme Court of India in the above said authority upheld the observation of the Hon’ble State Commission and held it to be a negligence on the part of the railway authorities for not making adequate arrangement to prevent such type of attacks, which amounts to theft and looting by the lawlessness persons at Railway station and Railway platform. The Hon’ble Supreme Court has also placed reliance on another authority of the Apex court " P.A. Narayannan Versus Union of India & Ors." III 1998 SLT 16, wherein, the Hon'ble Supreme Court has observed that in such type of cases, to relegate the appellant to approach the Railway Claims
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Tribunal or the Civil Court, does not appear to us to be proper. So in view of the law laid down by the Hon’ble Supreme Court of India, it is very much clear that it is the statutory duty of the railway authority to take suitable steps so as to prevent any type of occurrence which may be harmful or otherwise hazards to the passengers/consumers.
18. In Murli S. Deora V. Union of India AIR 2002 SC 40, it has been observed by the Hon'ble Supreme Court of India that fundamental rights guaranteed under Art. 21 of the Constitution of India inter alia provides that none shall be deprived of his life without due process of law. A non-smoker is afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places. It is indirectly depriving of his life without any process of law. Undisputedly smoking is injurious to health and may affect the heath of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non smoker to be helpless victims of air pollution. Considering the adverse effect of smoking in public places, it would be in the interest of the citizens to prohibit the smoking in public places till the statutory provision is made and implemented by the legislative enactment.
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The persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of acts of the smokers. After realizing the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, the Hon’ble Supreme Court directed and prohibited smoking in public places and issued directions to the Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places namely (1) Auditoriums; (2) Hospital Buildings; (3) Health Institutions; (4) Educations Institutions; (5) Libraries; (6) Court Buildings; (7) Public Office; (8) Public Conveyances including Railways. The Learned Attorney General of India had assured the Hon'ble Supreme Court that they would take necessary steps to give wide publicity to the order by electronic as well as print media to make the general public aware of this order of prohibition of smoking.
19. In our view mere publishing of adds for awareness of general public does not serve the basic purpose. In fact the public authorities failed to recognize the concern of the Hon'ble Apex Court regarding the loss of health suffered by the non-smokers due to smoking at public places. The railway authorities failed to make proper arrangements for prevention of
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smoking at Railway platform as well as in trains despite orders of the Hon'ble Supreme Court in the above said authority. The Union of India has also made rules namely "Prohibition of Smoking in Public Places Rules, 2008", which have been notified on 30.5.2008 and these rules have taken effect from 2.10.2008, whereby, smoking is strictly prohibited in all public places including auditoriums, Auditorium, Hospital Buildings, Health Institutions, Amusement Centres, Restaurants, Hotels, Public Offices, Court Buildings, Educational Institutions, Libraries, Public Conveyances, Open Auditorium , Stadium, Railway Stations, Bus Stops/stands, Workplaces, Shopping Malls Cinema Halls Refreshment Rooms Discotheques. Coffee House, Pubs, Bars and Airport Lounge. The new rules i.e. "Prohibition of Smoking in Public Places Rules, 2008" are improvement over existing provisions relating to prohibition of smoking as it puts the onus on the owner proprietor, manager, supervisor or in charge of the affairs of a public place to keep the area under his jurisdiction smoke-free, failing which will be a dereliction of duty and he shall be liable to pay fine equivalent to the number of individual offences.
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The Hon'ble Supreme Court of India has also directed the opposite party to make arrangement for the prevention of smoking at Railway Stations, Platforms and trains. But as observed above, till date, only 430 passengers have been punished with fine by the Railway Authorities, which figure is very much low and surprising. It has to further see that as per Ex.R-2 only two passengers were fined during the month of May 2007 for smoking at Railway Station. But it is commonly observed that one would find smokers here and there, not only at Railway platform, but also in trains. Mere fining a person or two in a month, that too on a complaint, does not serve the purpose at all.
20. It is the duty of the Railway authority to appoint the adequate number of the officials at the Railway Station and even in the Railway compartment so as to stop the smokers from smoking and also so that they may be available to the passengers at site for making complaints regarding inconvenience or infringement of their right in any manner.
21. The arguments of the learned counsel for the opposite party that
the consideration has been paid by the complainant only of the journey through railways and as such facilities of waiting at Platform or smoking
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does not constitute deficiency in service is not appreciable. The Hon'ble Supreme Court of India in “Lukhnow Development Authority Versus M.K.Gupta” (supra) has observed that a legislation which is enacted to protect public interest from undersiable activities cannot be construed in such narrow manner as to frustrate its objective .
22. A perusal of the definition of 'service' defined under Section 2 (o) shows that the word "facility" in connection with banking financing, insurance, transport etc. is incorporated in the definition of service. The Hon'ble Supreme Court of India has held that the service under the Act means service of any description and includes facilities in connection with it. The Hon'ble Supreme Court further observed that the consumer under the Act would mean a person who not only hires but avails of any facility for consideration. It in fact indicates that these words are added more to clarify than to add something new. So law is clear that when a person purchase a good or hire services the facilities attached to it are also included in the definition of service as provided under the Consumer Protection Act.
23. The counsel for the opposite party Sh.R.P.Sethi relied upon the authority “Secretary, Orissa State Housing Board Bhubaneswar Versus The
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Chanddarsekkharpur Housing Board Colony Unnayan Samiti Bhubaneswar and others”, 1995 (2) CLT 347, wherein, the Hon'ble National Commission has upheld the decision of the Hon’ble State Commission regarding removal of defect in the flats but the Hon’ble State Commissions direction regarding providing of facilities like park ring road etc. were set aside on the ground that the flat owners have paid only the price of the flat/house purchased by them and not for the above said facilities. In our view the authorities cited by the learned counsel for the opposite party are quite distinguishable to the present case.
24. Now the controversy as to the facilities attached to the railway has been set at rest by the Hon'ble National Commission in "Vinay Vilas Sawant Versus Union of India", I (2008) CPJ 13, wherein, the Hon’ble National Commission has held that after purchasing a railway ticket, a passenger would be a consumer as he avails of the services of the Railways, including the use of platform, footpath, over-bridges for ingress to and egress from train and, if there is any deficiency in service in providing defective ingress or egress which causes injury, then such a person is entitled to file a complaint under the Consumer Protection Act, 1986. It has been
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further held that it is duty of the railway to maintain in good order, platform, foot paths, over bridges for ingress and egress of the passengers and all other
passenger facilities and amenities. For this maintenance, passengers are paying fee by way of purchase of journey or platform tickets. It has been further held that by the Hon'ble National Commission that a railway passenger, who purchases a ticket for traveling by the Railway would undoubtedly be a consumer because he pays for availing of the services to be rendered by the Railways. In that set of circumstances the services which are required to be rendered by the Railways would include maintenance of Railway Station, platform as well as over bridge etc. So in view of the law laid down by the Hon’ble National Commission in the above said authority we hold that even not making proper arrangements for the prevention of smoking at platform and thus causing inconvenience harassment and suffering to the passengers waiting at the platform for their train is also a deficiency in service on the part of the Railway Authorities.
Question Nos. (viii) and (ix) :-
25. The learned counsel for the opposite party argued that State is Sovereign and no action can be taken against the opposite parties under the
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Act. He further argued that public authorities are not amenable to jurisdiction of the Consumer Protection Act, for the performance of their statutory duties.
26. The learned counsel for the opposite party Sh.R.P.Sethi has also relied upon authority of the Hon’ble Supreme Court of India "State of Orissa Versus Divisional Manager, L.I.C. & Anr.", 1996 (2) CLT 241, wherein, the Hon’ble Supreme Court has held that services free of charge or under a contract of personal service are excluded from the purview of the Consumer Protection Act, 1986. He has further relied upon " M./S Signet Corporation Versus Commissioner M.C.D., New Delhi and others", 1997 (2) CLT 459, wherein, it has been held by the Hon’ble National Commission that no complaint under the Act can be maintained against the Municipal Corporation of Delhi on the ground of its failure to discharge its statutory duty of proper maintenance of public drain, as there was no arrangement of hiring of service for consideration as between the complainant and M.C. D., New Delhi, in regard to maintenance of drain. He has further cited authority of Municipal Council Kotkapura, District Faridkot Versus Mulkh Raj, 1997 (2) CLT 484, wherein, the similar observation has been made by the Hon'ble
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State Commission. He has further relied upon the authority of the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh, " The Municipal Council Versus Tarlok Chand and others," 1996 (2) CLT 710, of the Hon’ble Uttar Pradesh State Consumer Disputes Redressal Commission, "Nagar Palika Parishad Bulandshahr Versus Man Mohan Lal Saxena, 2000 (1) CLT 314 and of the Hon’ble Tamil Nadhu State Consumer Disputes Redressal Commission, Chennai, " President Panchayat Board IIanchi and another Versus Arunachalam and another", 2004 (2) JRC 184, wherein, it has been held that the payment of tax by the complainant does not mean that there is hiring of services.
27. In a democratic country like India, concept of sovereignty is no more appreciable, rather, it is the duties towards the public, which the public authorities are required to perform and they are so bound to perform by statute also. The public authorities like Railways, Insurance Companies, Banks etc. are doubly liable to perform their duties because firstly, they provide service for consideration and are bound to give services without any deficiency and secondly, they are bound to do so legally and morally and by respective statutes also governing their functions and duties.
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28. It is very painful that the public authorities, which have been created for serving the public and certain duties & liabilities are also imposed upon them by statutes so that the public officers may serve the public in a proper manner, are taking objections before the courts and Consumer Forum that though they are liable to perform these duties statutory, but are not answerable for their inaction and wrong doing and deficiency in service under the Consumer Protection Act. In our view, they are doubly liable to do so. Firstly, they are bound by statute to perform the duties and also being public servants, who are getting hefty salaries out of the public funds, Secondly, these authorities are also bound to do so as these services also fall in the definition of ‘service’ as provided under the Consumer Protection Act,1986. Any act of deficiency in service empowers the Consumer Fora, constituted under the Consumer Protection Act,1986, to order for removal of deficiency and also to order compensation as the remedy under the Consumer Protection Act, 1986 is in addition to other statutes under which the action can also be brought against such authorities.
29. Public authorities cannot be allowed to shirk their duties towards public on the ground that though they are legally & statutory liable
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to do so, but no action can be brought against them under the Consumer Protection Act. The Consumer Protection Act, 1986 is a beneficial legislation and all the public and private authorities offering services for consideration falls under its purview irrespective of the fact that how meager consideration is paid by the consumer.
30. It has been observed by the Hon'ble Supreme Court in Lukhnow Development Authority Versus M.K.Gupta, III (1993) CPJ 7 (SC) that any attempt to exclude services offered by the statutory or officials bodies to the common man would be against the provisions of the Act and spirit behind it. It has been further observed that a Government or Semi Government body or a local authority is as much amenable to the Act as any other private body rendering similar service. The Hon'ble Supreme Court of India has observed that truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinized, as public accountability is necessary for healthy growth of society.
31. It has been further observed by the Hon'ble Supreme Court of India that the provisions of the Act are construed in favour of the consumer
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to achieve the purpose of enactment as it is a social benefit oriented legislation. It has been further observed in the “Lucknow Development Authority Vs. M.K. Gupta” (supra) that nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it. Therefore, the award of compensation for harassment by public authorities not only compensates the individual satisfies him personally, but helps in curing social evil. It may result in improving the work culture and help in changing the outlook.
32. It has been further held by the Hon'ble Supreme Court of India that under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the Statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are accountable for their behaviour before authorities created under the Statute like the Commission or the Courts entrusted with responsibility of maintaining the rule of law. It has been further observed that the servants of the
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Government are also the servants of the people and the use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony, then it is not an exercise of power but its abuse. No law provide protection against it.
33. The complainant has paid a consideration of Rs.17/- purchased a ticket for his journey, so the service obtained by the complainant is not free service or service under a contract of personal service. The case in hand is not a case, where the complainant has alleged payment of taxes. It is a clear cut case of payment of consideration to the opposite party for his journey and the opposite party is bound to give a deficiency free service to the complainant. So far as the observations of the Hon'ble National Commission, in "Secretary, Orissa State Housing Board Bhubaneswar Versus The Chanddarsekkharpur Housing Board Colony Unnayan Samiti Bhubaneswar and others" are concerned, the same are not applicable the case in hand. When the complainant has paid price for the journey, so right from using the platform and boarding the train by the consumers and till its reaching the destination, the opposite party is bound to give proper services
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to the passengers and they cannot escape liability on the ground that they have collected the price of traveling in train only and not for standing on the platform. It is well known that even when one has to visit the platform just for receiving his relative or to see off his relatives or friends or family members, the purchasing of railway platform ticket is very much necessary and without which the railway authorities charge fine etc. So the Railway authorities not only take charges for traveling, but also for using platform and as such they are duty bound to provide proper facilities not only in trains, but also at Platform.
Conclusion:-
In view of our above observations, we conclude that it is the
duty of the Railway Authorities to make proper arrangements and facilities for preventing smoking in trains, railway platforms and railway stations, but the Railway Authorities have failed to make such proper arrangements till date. We further hold that even the maintenance of the platforms and other facilities to be provided at Railway Stations comes in the definition of ‘service’ and not making such proper arrangements to prevent smoking definitely is a deficiency in service on the part of the opposite party. We
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further hold that the Consumer Fora under the Act has jurisdiction to give certain directions keeping in view the interest of the consumers, who have approached the Forum and also that of those numerous consumers, who have
not approached the Forum. We further hold that statutory bodies, like Railways, are amenable to the jurisdiction of this Forum and it is no excuse that the statutory bodies are bound to perform their duties under their respective statutes and not under the Consumer Protection Act, 1986.
It is also commonly observed in day to day course that normally
common man do not take courage to take action against persons for his such type of rights. Even he does not get the courage to file a complaint against such type of dereliction of duties and deficiency of service on the part public authorities. Only a few people got the courage to complain and take action not only for the infringement of their individual rights but for the sake of rights of general public also. Action on the part of such person must be appreciated and due award and compensation should be awarded to them for their courageous step. On the other hand, the inaction and negligence and carelessness on the part of the authorities should be burdened with punitive costs.
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Imposing of fine after the commission of act, in our view does not serve the purpose. The Railway authorities should draft a mechanism so that smoking can be prevented right from beginning or its inception. The right course is to prevent the guilty from committing the guilt rather than to punish after the commission of the guilt because in the latter event even the punishment to the guilty cannot bring back the victim to its original status or position.
In view of the above said observations, we hold that it is a case of deficiency in service on the part of the railway authorities and direct Northern Railway to pay a compensation of Rs.10,000/- to the complainant for the inconvenience, harassment and mental agony and loss of health suffered by him and also as an award for his courageous step to fight against such type of infringement of rights of the common man where only a few take the courage to do so. We further direct the Northern Railway to take appropriate steps before hand to prevent smoking at all the Railway Stations, Platforms as well as in the trains under its control and to appoint adequate number of officials at Railway Stations, Platforms and trains who would be there on full time basis so that such type of activities like smoking by the
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other passengers as well as other illegal activities can be prevented before hand rather than leaving it to happen and thereby shirking from its liability by just imposing a meager amount of fine. The Railway Authority, if so desire, may also take the help of Railway Police or the Railway Protection Force for the above said purpose. We wish to direct the entire Railway authorities in India in this respect, but in the present case only the Northern Railway is the party and we are constrained to issue directions against Northern Railways only. A copy of this order be sent to the General Manager, Northern Railways for compliance. This order is directed to be complied with within a period of ninety days from the date of receipt of a copy of this order. File be consigned to the record room.
Pronounced
19-11-2008 Sd/- (Sanjay Garg)
President
Sd/-
(Tarlok Singh)
Member
