w w w . L a w y e r S e r v i c e s . i n

General Manager, South Western Railway, Hubli & Another v/s M.G. Kantikar & Another

Company & Directors' Information:- MG AND CO. PRIVATE LIMITED [Active] CIN = U40101DL2002PTC114029

Company & Directors' Information:- A T C (WESTERN INDIA ) PRIVATE LIMITED [Strike Off] CIN = U63090MH2000PTC126350

Company & Directors' Information:- HUBLI COMPANY LIMITED [Strike Off] CIN = U51909KA1901PLC000869

Company & Directors' Information:- SOUTH INDIA COMPANY LIMITED [Dissolved] CIN = U74900KL1952PLC001113

Company & Directors' Information:- HUBLI COMPANY LIMITED [Not available for efiling] CIN = U99999MH1978PTC000031

    Revision Petition No. 1140 of 2016

    Decided On, 11 March 2021

    At, National Consumer Disputes Redressal Commission NCDRC


    For the Appearing Parties: Rekha Aggarwal, Advocate.

Judgment Text

The present revision petition has been filed against the order dated 14.10.2015 passed in Appeal No. 599 of 2013 by the Karnataka State Commission. This appeal was filed by the Petitioner challenging the order dated 15.03.2013 in CC No. 364 of 2012 of the District Forum, Shimoga.2. It is argued by the Ld. Counsel for the Petitioner that the findings of the State Commission, in the impugned order, whereby the order of the District Forum was confirmed, is perverse, without jurisdiction, illegal and whimsical. It is submitted that the Foras below have failed to take into account the fact that when the reservations of the tickets are done availing the computerized facility, the seats are automatically allotted as per the availability and, therefore, contention that the lower births were not given to the Complainants, although both were senior citizens and the Complainant No. 1 was also a disabled person, has no merit and the findings on this count are, therefore, perverse. It is further argued that the Complainants had alighted on their own and the person on duty in that coach, following the guidelines of the Railway, had gone to wake them up when the train was about to reach at the destined place. He found that the Complainant had already alighted the train. It is argued that the findings to the contrary on this count are also perverse.3. None had argued the matter on behalf of the Complainants and they have left it to the wisdom of this Commission. I have perused the file and have gone through the impugned order.4. In exercise of the revision jurisdiction this Commission is not required to re-assess and re-appreciate the evidences on record and substitute its own conclusion on facts especially when the findings on the facts are concurrent. This Commission can interfere with the concurrent findings of the Foras below only when the findings are perverse or Foras below have acted without jurisdiction. A finding can be said to be perverse when it is based on no evidences or based on conjecture or surmises i.e. on the evidences which were not part of the record or where a material evidence on record is not taken into consideration. It has been so held by the Hon'ble Supreme Court in "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd., (2011) 11 SCC 269" has held as under:"23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".5. Again in "Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 SCC 286," the Hon'ble Supreme Court has reiterated the same principle and has held as under:"17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."6. In T. Ramalingeswara Rao (Dead) Through L.Rs. and Ors. Vs. N.Madhava Rao and Ors. decided on 05.04.2019 passed in Civil Appeal No. 3408 of 2019, the Hon'ble Supreme Court has held as under:"12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction."7. In the present case evidences were led before the District Forum and the District Forum considered each and every contention of the parties and concluded that though the tickets booked by the Complainants were through computerized system, yet on the day they travelled, despite request to TTE no lower births were made available to them. It has also relied on the guidelines issued from time to time which are required to be followed by the employees of the Railways. The District Forum has held as under:-"16......We have carefully and thoroughly examined each entry in Ex. R-6(containing 33 pages). It reveals that B1-28, B1-44, B1-65, B1-68, B1-73 and B1-76 were not reserved and vacant. In other words above said six lower berths were available for allotment by TTE either to the complainants or any other deserving passenger. In her affidavit 2nd complainant has further stated on oath that her Ashok who barded them to Golgumbaz express requested TTEE in the coach to arrange for lower berths. It is not the case of the opponents that no request was made to TTE, either by complainants or by their son Ashok, for allotment of lower berth. If no lower berths were available in B1-coach and no request were made by the complainants for allotment of lower berth, 1st opponent ought to have filed the affidavit of TTE who was in the B1-coach on that day. No explanation is forthcoming for its failure to file affidavit of TTE who was manning B1 coach up to Hubli. It is clear from Ex. R-6 reservation chart produced by the 1st opponent that B1 coach was not full when the train left Solapur and as many as six lower berths were available for allotment. TTE in B-1-coach should have allotted lower berths to the complainants who were senior citizens and particularly to the first complainant who is physically handicapped, as per guideline (iii) which reads as under:-'After departure of the train, if there are vacant lower berths available in the train, and if any physically handicapped person booked on the authority of handicapped concessional ticket, who has been allotted upper/middle berth, approached for allotment of vacant lower berths, the conductor/train ticket examiner (TTE) has been authorized to allot the vacant lower berth tok them making necessary entries in the chart.'17. Thus materials on record show that TTE in B1-coach has acted contrary to the guidelines and exhibited his inhuman attitude to the senior and handicapped passengers. His failure to allot available lower berths to the complainants undoubtedly amounts to deficiency in service."8. The contention of the Complainant that they were made to de-board at a station which was 100 k.m. short of their destination i.e. Birur had also been dealt with by the District Forum. After hearing the Counsels for the parties and after going through the evidences on record District Forum has held as under:-"20. It was R.W-3 M. Imam Hussein who was the TTE in B1-coach at relevant point of time. He has stated in his affidavit that he was on duty was TTE manning AC coach of train No. 6536 from Hubli to Yeshwanthpur, that on jointing duty he had noticed aged couple had to get down at Birur, that the train was running late by 90 minutes approximately, that he did not disturb the couple as the train was expected to reach Birur at 6.30 a.m., that at about 6 a.m. he went to give wake up all, that to his surprise aged coupe were not found in their berths and that the passengers told him that wo aged passengers got down at Chikajur. It is his further evidence that neither he had informed the complaints that the train was approaching Birur not made them to alight at Chikjajur station. Ex.R-1 is the explanation of DW-3 to charge memorandum submitted to Sr. DCM, Mysore. In this explanation it is stated that train was running nearly two hours behind schedule, that train was expected to reach Birur by 6.30 a.m., at 6.30 hours he went to B1 coach at Birur to give wake up call to elderly couple and that he came to know from co-passengers that they got down at Chikjajur at 5.30 hours. It is further stated in Ex.r-1 that if he had come to know about their alighting at Chikajur he would have prevented them.21. Proper and careful analysis of the evidence of DW-3 and other evidence on record show that the evidence of DW-3 M. Imam Hussein is nothing but first grade falsehood. According to him the train was running late by 90 minutes approximately. Ex.P-2 which is copy of reservation ticket issued to the complainants show that the arrival time of the train to Birur station was 4.50 a.m. on 4.9.2010. RW-1 Dr. Anup Dayanand Sadhu has stated in Para-6 of his affidavit that the train arrived at Davangere at about 3 a.m., and that train takes minimum 110 minutes to reach Birur from Davanagere. It is admitted that complainant as per Ex.P-3 was lodged by ASM Birur by Dr. S.M. Kantikar in which he has mentioned the time as 5.15 a.m. If the train was running late there was no reason for RW1 to depose that train reached Davenagere at 3 a.m., Combined reading of evidence of RW-1 and Ex. P-3 shows that train was not running late. If really the train was running late 1st opponent should have produced the Register of "arrival and departure" of trains. Ex. P3 was lodged at earliest point in time and this complaint was not in contemplation of any one including Dr. S.M. Kantikar. From the above, it is clear that RW-3 has deliberately deposed falsely and gave wrong explanation as per Ex. R-1 that train was running late obviously to cover up his lapses. Affidavit evidence of Dr. S.M. Kantikar and Ex.P-3 show that the train passed Birur station before 5.15 a.m. on 4.9.2010. Evidence of DW-3 that at about 6 a.m. he wanted to give wake up call to the complainants but to his surprise they were not found in the berths and that the train reached Birur station at 6.30 a.m. is totally false. In one breath DW-3 has stated that he went to B1 coach at 6 a.m. to give wake up call (in the affidavit) and another breath he has stated that at 6.30 a.m. he went to give wake up call (Ex. R-1). These statements are contrary to each other and suggest that he did not go to give wake up call, because the train had left Birur station around 5 a.m. itself.22. GPA holder of complainants has obtained certain information from railway Division Office, Mysore under RTI Act and produced the same at Ex.P-11. It is RW-1 Dr. Anup Dayanand Sadhu who has furnished information as per Ex. P-11. Contents of Ex. P-11 are not at all disputed. Items 3 to 6 are relevant for our purpose. It is useful and necessary to extract them and they read as under:-"3. He is to ensure that doors of the coaches are kept latched during run of train and open them as and when required by passengers, particularly for authorized passengers entry/exit during night time.4. He is to keep the doors of the vestibules locked during 22.00 hrs. to 6.00 hrs. to prevent unauthorised entry.5. He is to remain vigilant particularly during night time and prevent entry of unauthorized persons.6. He is to arrange for alerting enroute passengers well in time to enable them to detrain comfortably at night time at their destination.23. It was the duty of DW-3, to keep the doors locked during 22 hours to 6 hours and to alert the passengers well in time to enable them to alight comfortably at night hours. It is not the case of opponents or DW-3 that in B1-coach there were passengers whose destination was Chikjajur. It is also not their case that persons who had reserved ticket to travel in B1-3 A.C. Coach had to board B-1 coach at Chikjajur. Ex. R-6 reveals that no passenger had to alight at Chikajajur and no one had to board B1-coach with reservation ticket. That being so there was no reason for TTE or the coach attendant to open the door of the B1-coach at Chikajajur. It is not the evidence of DW-3 that he did not lock the doors. That being so there was no chance for the complainants to alight from the train at Chikjajur without the notice of TTE or coach attendant. It was more so because complainants are too aged and first complainant in handicapped. Under the circumstances argument of counsel for opponent No. 1 that complainants alighted at Chikjajur cannot be believed even for a moment.24. It was further argued on behalf of 1st opponent that DW3 had to man than one coach therefore, if at all there was any lapse on his part it was unavoidable and not deliberate. This argument cannot be accepted because DE3 himself has not stated that he was over burdened and therefore he could not notice alighting of complainants. It is more so because door was locked and complainants had no chance to alight.25. It was argued by Dr. S.M. Kantikar that opponents have indirectly admitted negligence on the part of railway staff and deficiency in service. He has drawn our attention to Ex. P07 which is reply dated 3.5.2011 by the Senior Commercial Manager to the letters of Dr. S.M. Kantikar dated 31.3.2011 and 1.4.2011 addressed to General Manager. It is important to note that Ex. P.7 was addressed after 8 months of the incident in question. In this Ex.P.7 Senior Commercial Manager has stated,"with reference to the above, matter was enquired in detail and it is to inform you that concerned TTE who was manning the coach by train No. 6536 on 3/9/2010 has been taken up Departments action for deficiency in service and careless attitude, towards aged handicapped passengers."26. A plaint reading of the above reveals that detailed preliminary enquiry was conducted and only thereafter departmental action was initiated against TTE (DW3). In other wards because the preliminary enquiry disclosed prima facie case, departmental enquiry was initiated. Though more than 2 1/2 years have elapsed, opponents have not disclosed the out come of departmental action. Whatever may be the result of departmental action, suffice it to say that TTE was found negligent and careless in discharging his duty by his superiors and therefore departmental action was initiated. It was also be noted that explanation offered by DW3 as per Ex. R.1 was not accepted by the superiors of DW3.27. These circumstances strongly supports the case of the complainants that they were made to detrain at Chikjajur saying that it was their destination. Thus the TTE in B1-three A.C. Coach was not only negligent but also failed to discharge his duties as indicated in Ex. P-11. This is nothing short of gross deficiency in service. For the above reasons point No. 1 is answered in the affirmative."9. Based on these conclusions and other evidences led by the Complainants to show the justification of the compensation they have asked for, the District Forum had issued the following directions:-"Complaint is partly allowed with costs in the following terms:-1. Opponents are hereby directed to pay jointly and severally a sum of Rs.3,02,000/- to the complainants by way of compensation, within two months from today.2. If they fail to pay compensation within two months, they are liable to pay interest @ 9% from the date of default till the date of payment.3. Opponents are further directed to pay a sum of Rs.2,500/- to the complainant towards cost of this litigation."10. This order of the District Forum was impugned in the appeal by the Petitioners before the State Commission and the same contentions were raised before the State Commission. The State Commission re-appreciated and re-assessed the evidences. The following paragraphs shows the arguments advanced by the Petitioner before the State Commission:-"12. Being aggrieved by the said order, OP-1 is in appeal inter alia contending amongst other grounds that the impugned order is highly perverse, capricious, arbitrary and whimsical; the District Forum lost sight of the fact that the reservation ticket was computer generated and the reservation clerk has no role to play in the matter of allotment of berth and the berths will be done by the software enabled computer on first come first serve basis; the appellants exempted the booking clerk in the matter of allotment of ticket and the District Forum partly allowed the complaint wrongly.14. It is further contended by the appellants that the said train had only one 3 tier AC coach on which the complainants travelled and the said coach had only 64 berths; each berths will be allotted and distributed as per the quota system to each station which fall during the course of its run from the station of departure to the station falling within the line towards the destination station and berths which may be vacant at the time of departure station could not be allotted by the TTE; thus, the District Forum committed serious error in coming to the conclusion that the complainants were not allotted with the lower berths despite of their being the vacancy of the lower berth at the time of departure of train.15. It is further pleaded that the District Forum erred in accepting the arguments of the GPA holder of complainant No. 1 that there were 27 available berths in the said coach and more particularly the berth Nos. B1, 65, 68, 73 & 76 were vacant as the coach No. B-1 which is the only 3 tier AC coach was available on the said train has only 64 berths; the reservation shall be made according to the first cum first serve basis and once the reservation is made the same cannot be changed as the reservation is done by the software enabled computer and there is a quota system of allotment of berths for each station. It is further contended that the District Forum failed to take notice of the appellant that the TTE manned the said train between Hubli and Bangalore was having a experience of 30 years in the said work and he has not violated any rules, instructions and on the said date no theft or any unauthorized person had entered into the coach and there were no untoward incident and the complainants without seeking the advice of the TTE or without there being the alert call have on their own had got down at Chikajajur and thus seeks setting aside of the impugned order and consequently to dismiss the complaint."11. Findings of the State Commission are re-produced as under:-"18. Thus, it is the case of the complainants that complainant No. 1 who is physically disabled and unable to move without assistance reserved the tickets for travelling from Solapur to Birur in 3 tier AC under the quota meant for physically disabled persons, but, they were not given lower berths and the TTE in spite of the request did not accommodate the lower berth; however, both of them got the lower berths on the sympathetic consideration of co-passengers.19. Further, though the TTE who was in charge of the coach specifically informed to woke the complainants when the train reaches Birur Railway Station to enable them to get down but the TTE in advance woke them up and they were made to get down there, thereby exposing them to lot of hardship as detailed in the complaint.20. Further, it is also the case of the complainants that on account of the old age and the disability which the complainant No. 1 was already having and as he was made to travel on the floor of the train for some time and also as he was exposed to chill weather in the vicinity of Chikkjajur Railway Station till his son came to pick him. Complainant No. 1 suffered fracture of left hip bone etc.21. Per contra, it is the case of the Opposite Party that the appellant railways reserve the berths through software in the berths available at the time of reservation and as such giving the berths to the complainants cannot be called as deficiency in service; similarly with regard to the complainants getting down at Chikkjajur railway station it is stated by the Opposite Party that the TTE never woke them at Chikkjajur and when he went to the coach of the complainants at Birur he did not find the complainants and then he learnt that they got down at Chikkjajur and as such even that also cannot be called as deficiency of service and thus sought dismissal of the complaint.22. In this regard, it is to be seen that when admittedly they reserve the tickets under the quota for the disabled whether it is through software computerized system or under manual reservation, care should be taken to the aged/disabled person and the railways cannot expose such persons to further hardship in allotting the upper berths; if the lower berth are not available the railways would have even declined to reserve them the seats on that ground alone. With regard to the complainants getting down at chikkajajur, it is the bounden duty of the inspector in charge of the coach to keep watch the persons as to who gets down at a particular station especially in the reserved compartments during night hours. Hence, if at all if the coach had not made the complainants to alight at Chikkjajur railway station, duty was cast upon to keep a watch on the aged passengers who had in fact requested him to woke them up at Birur Railway Station. In the circumstances, either by not watching them when they were getting down at chikkjajur or in not taking further steps when he did not find them in the coach when the train approached Birur, it amounts to deficiency in service on the part of the railway authority.23. The District Forum considering the case of the parties has dealt in detail with regard to various factors like issuing circulars by the railways in relation to the safety of senior citizens, ladies, pregnant women, etc. and also the evidence adduced by both the parties partly allowed the complaint. Further, it is seen that though the berths were allotted during the course of journey either by co-passengers or at the instance of TTE, the complainants were given lower berths but as observed by the District Forum in the

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impugned order till such adjustment of lower berths the complainants must have undergone lot of tension and mental anxiety.24. With regard to the duty of TTE the same has to be specified particularly in relation to the passengers who are aged. The very fact that TTE was not vigilant as to who are the persons who are getting down that too during wee hours in the night, amounts to gross negligence on his part and the railways being the employer of such persons are to be held liable for such act of their employee.25. With regard to the quantum of compensation awarded, the District Forum considered the contents of FIR and observed that the statement of B.S. Pyati that "He appeared to be find while living the station" refer to the complainant who is not the complainant in this case but the son of the complainants who had gone to Chikkjajur to pick them. Thus, considering the totality of the case, the amount awarded by the District Forum at Rs.3,02,000/- with costs seems to be proper and the impugned order does not call for interference."12. Based on its findings of the facts the State Commission dismissed the appeal.13. It is apparent that the Petitioner have challenged the impugned order on the same grounds which were raised before the District Forum as well as before the State Commission in the appeal. The concurrent findings of facts of the Foras below, are based on the evidences led by the parties and the documents and circulars. By way of present Revision Petition, the Petitioner is urging this Commission to re-assess and re-appreciate the evidences, which cannot be done in revisional jurisdiction.14. From the detailed orders of the Foras below dealing with each and every contention of the petitioner, it is apparent that the Foras below have based its findings on evidences on record. Ld. Counsel for Petitioner has failed to show that findings are perverse. My attention is not drawn to anything in the impugned order which can point out the perversity in the impugned order. Settled proposition of law is that where two interpretations of evidences are possible the concurrent findings bases on evidences has to be accepted and in the revisional jurisdiction such findings cannot be substituted. Here the Ld. Counsel has even failed to point out that any other conclusion then the one arrived at by Foras below, is even possible.15. I find no illegality or infirmity or perversity in the impugned order. The present Revision Petition has no merit and the same is dismissed.