Delhi High Court Asks Railways to Create a Mediation Policy

Delhi High Court Asks Railways to Create a Mediation Policy

The Delhi High Court, vide order dated 01.06.2018, has suggested the forming of a ‘litigation policy’ by the Railways to address tortuous claims of compensation filed against it. In the Court’s view, the whole purpose of granting compensation to the victim is defeated if the amount does not become available immediately. Due to lengthy court processes and transferring of a case from one court to another, justice is inevitably delayed. Here we revisit the case that put the wheels in motion.Victim Tilak Raj Singh, was travelling from Meerut to Ludhiana when an unfortunate incident occurred on the way at the Muzaffarnagar station, on 20 October 1987. The plaintiff suffered injuries but no first aid was administered. Instead he was sent to the civil hospital in Muzaffarnagar on a rickshaw. Due to loss of blood and inadequate facilities there, he developed an infection and was shifted to another hospital. The infection persisted, though, and finally his leg had to be amputated at a nursing home in Meerut. The plaintiff approached the District Court at Meerut on 3 September 1990 seeking damages/compensation. However, his suit was returned on 14 January 2002, after 12 years, for want of jurisdiction by the Meerut District Court. Thereafter he approached the Railways Claims Tribunal (RCT), but the RCT also dismissed his petition on the grounds that the incident had taken place after the enactment of the Railways Act, 1989, and therefore the case did not fall within the purview of RCT – instead, the same had to be tried by a civil court of competent jurisdiction.

The suit was then shuttled back to the District Judge, Meerut, who declined to accept the case saying that the RCT was not competent to transfer the case to it. Frustrated with the same, the victim filed a suit before the Delhi High Court on 1 October 2008. On 20 September 2010, a single judge rejected his case stating that the suit was barred by limitation. Thereafter, the victim challenged this in appeal before the Division Bench of the High Court of Delhi and they held that the period during which the suit remained pending before the Civil Judge, Meerut, and RCT should be excluded. The suit then proceeded to trial.

In 2016, due to the increase in the pecuniary jurisdiction of the Delhi High Court, the suit was transferred to the District and Sessions Judge, Patiala House Court, where the victim was finally decreed a sum of Rs 6.6 lakh. This was challenged by the Centre before the Delhi High Court.

Findings of the Court

After perusing the documents on record, the Court said that there was no doubt that the Railways were liable for breach of duty for not providing the standard of care required. The immediate first aid was not provided to the victim and it led to loss of blood and an injury that was life-threatening, as was clear from the report of the doctor who saw the victim at the Muzzafarnagar District Hospital. Concluding, the Court observed that the victim was entangled for want of jurisdiction both before the Civil Judge, Meerut, and the RCT. An organisation such as the Railways which is located across the length and breadth of the country should not delay cases of compensation in this manner. The whole purpose of granting compensation is defeated if the amount does not become available to the victim immediately.

The Court observed that as the incident took place prior to the enactment of the Railways Act, and the RCT had already rejected the petition of the victim for compensation, the determination of damages/compensation would be governed by the general law of torts and damages and not by the Railways Act.

Conclusion

While concluding, the Court observed that the victim was entangled for want of jurisdiction both before the Civil Judge, Meerut, and the RCT. An organisation such as the Railways which is located across the length and breadth of the country should not delay cases of compensation in this manner. The whole purpose of granting compensation is defeated if the amount does not become available to the victim immediately.

The Court further analysed the case and observing that the victim had been deprived of any compensation for over 30 years, it enhanced the compensation amount to Rs 9 lakh along with simple interest @ 8% for the entire period from filing of the suit before the District Judge, Meerut, till date of decree.

Consumer Voice’s advice to consumers

Train-related accidents may happen due to lack of caution and sometimes also due to negligence. Passengers should know about their rights and where to claim for compensation,etc., to avoid delays. Had the victim in the above case taken the claim to competent jurisdiction, there would not have been undue delays in seeking and getting compensation.

The Consumer Voice Help Desk helps aggrieved consumers and assists them in resolution of their disputes. Consumer Voice is also actively looking after the implementation of Real Estate (Regulation and Development) Act (RERA).

If you have any complaint, we can help you. Please note our contact details:

Phone: 011-3510 2336; Email ID: legalhelp@consumer-voice.org

For details, you can visit the link: https://join.consumer-voice.org/legal/

Case Study: Consumer can’t claim compensation if the “Necessary Parties” are not included in the Consumer Court Case

Case Study: Consumer can’t claim compensation if the “Necessary Parties” are not included in the Consumer Court Case

Before filing their case at the consumer court, consumers should get the facts very clear and include all necessary/proper parties in the complaint to avoid dismissal of the same. Non-inclusion of necessary/proper parties can turn out be grounds for dismissal of the complaint even if all others facts are proven. It is absolutely necessary for a complainant to implead any party that is responsible for the cause of action.

You May Be Deprived of Any Relief for Non-Inclusion of Necessary Parties

A necessary party is a person in whose absence no effective decree can be passed by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed. The National Commission in the matter of Jet Airways (India) Limited versus Ethelwad O. Mendes (First Appeal No. 432 of 2012), vide its order dated 12.02.2018, allowed the appeal against the order of the State Commission filed by the respondent/complainant at the State Commission under Complaint No. 06/2010 against the appellant/ opposite party Jet Airways (India) Limited.

Let’s retrace the case.

The respondent/complainant had purchased air tickets from an agent, M/s Trade Wings Limited, for himself and his family (four persons) to travel to Toronto, Canada, from Mumbai via London-Heathrow. The tickets were for a Jet Airways flight, having arrangements for code-sharing with Air Canada. The journeys were to be happen between 10.05.2008 and 15.06.2008. On reaching Toronto by Air Canada, the said family discovered that their baggage had not yet arrived. This caused much inconvenience and they also had to incur costs in purchasing toiletries, etc.

The airline agreed to give them a mere US$ 100 and that too would be handed over only at the address in India. The respondent/complainant alleged that during the three days it took for the baggage to be delivered to them, they were unable to go anywhere and enjoy their holidays because they did not have any change of clothes. On the return journey on 31.05.2008, as stated by the respondent/complainant, the Air Canada flight was to depart at 0800 hours from Toronto for London. They were given boarding passes without seat numbers at Toronto Airport. When they reached the embarkment gate after going through the security checks, they were told that the said flight of Air Canada was overbooked and they could not be accommodated in the same. They were made to travel by a Lufthansa flight to Heathrow, London, via Frankfurt on the next date, 01.06.2008, and that too in the evening at 18:00 hours. They were given some vouchers for refreshments, etc., but the same was found to be inadequate. As the flight was changed, they could not reach London according to schedule, disturbing the arrangements made for pick-up. They had to hire two taxis to reach Nottingham. In addition, when their flight reached Heathrow Airport at London, they found that two pieces of their luggage had not arrived. The said luggage was delivered to them at Nottingham after a delay of 36 hours, causing great harassment/inconvenience to them.

On reaching India, the respondent/complainant filed a complaint before the State Commission against Jet Airways, from whom the air ticket had been purchased. The appellant/opposite party stated that the complaint was barred by limitation under Section 24A of Consumer Protection Act, 1986. The complainant was debarred under Section 30 (1) of Chapter III, Liability of the Carrier, IInd Schedule of Carriage, by Air Act, 1972, to make any claim for damages after two years from the date of travel. The State Commission, by its order dated 14.06.2012, allowed the complaint partly. The respondent/complainant was held entitled to a sum of 635.47 Canadian dollars (to be paid in equivalent Indian rupees as on the date of payment), as well as Rs 3,000 by way of pecuniary losses and Rs 2 lakh by way of non-pecuniary losses, in terms of Section (14) (1) (d) of Consumer Protection Act, 1986. The respondent/complainant was also held entitled to a sum of Rs 5,000 by way of cost of the complaint. The State Commission further directed that the amount shall be paid to the respondent/complainant within a period of four weeks and in case it was not paid, the same shall carry interest at the rate of 7% until it was paid. Aggrieved by the order of the State Commission, Jet Airways (India) Limited filed an appeal before the National Consumer Disputes Redressal Commission (NCDRC).

The main issue to consider before the National Commission was this: whether under the code sharing arrangement Jet Airways could be held accountable for any deficiency in service on the part of the participating airlines, which in this case were Air Canada and Lufthansa. In this regard, the National Commission referred to a document titled ‘Worldwide Slot Guidelines’, 8th Edition, English Version, effective from 1 January 2017, published by the International Air Transport Association (IATA). In clause 8.14, titled ‘Shared Operations’, this is stated: ‘The operating airline is responsible for all usage and performance requirements.’ From the above provision, an impression was gathered that the operating airlines – Air Canada and Lufthansa – where the alleged deficiency in service took place were responsible for the usage and performance requirements. In any case, for taking a just decision with regard to the consumer complaint at hand, it was absolutely necessary that the versions of the operating airlines should be on record, so that a rational assessment about their deficiency in service, if any, could be made.

So it was that the National Commission held that Air Canada and Lufthansa were necessary parties in the case and it was necessary to obtain their versions before taking any decision. The consumer complaint in its present form was dismissed. At the same time, liberty was given to the respondent/complainant to file a fresh complaint, if he desired to do so, by impleading the other airlines as necessary parties. There was no order as to costs. Had the complainant known, it would have been easy for him to implead Air Canada and Lufthansa as opposite parties in the original complaint. Of course he still has the option to file a fresh case but that will take considerable time and it may turn out to be an indefinite wait for a verdict.

In its order dated 02.02.2018 (WP [0C] 12006/2015 & CM No. 31848/2015 WP [C] 12006/2015 & CM No. 31848/2015), the High Court of Delhi has confirmed that the Civil Aviation Rules provide an immediate relief as compensation to domestic passengers who are denied boarding. DGCA 2010 Rules does not put a cap on the compensation that can be demanded from the airline in cases of overbooking. A passenger has full right to approach civil and consumer courts for relief. Domestic as well as international airlines are responsible for deficiency in service and can be sued in Indian consumer courts.

Earlier, in the case of Air France versus O.P. Srivastava & Others (First Appeal No. 310 of 2008), NCDRC held that not permitting a passenger holding a confirmed ticket to board a flight amounted to deficiency in service on the part of the airline. It directed the premier French national carrier to pay a compensation of Rs 400,000 each to three officials of the Sahara Group on the grounds of causing them inconvenience and harassment by denying boarding on a Paris–Delhi flight in 2002.

Retailer ordered to compensate for selling cake post expiry date

Retailer ordered to compensate for selling cake post expiry date

A consumer court in Bengaluru has awarded a consumer Rs 10,090 as compensation after he was sold cakes worth Rs 90 at a Reliance Fresh outlet post the expiry date.

R Jayachandran, the litigant, said that he was sold a packet of cakes at the outlet on 18 April 2016, although it was past its expiry date. Upon seeing his son fall ill and noticing the expiry date on the product’s box, he wrote a letter to the outlet manager but received no response. He then decided to take the help of the consumer court and filed a case against Reliance Retail. Meanwhile, he had to spend a few thousand rupees on the treatment of his son.

The consumer court saw this as a case of ‘unfair trade practice’ as the retailer had put the expired product on its shelves and sold it to customers. From the retailer’s end, it was argued that the litigant had not given concrete medical records to show that the cakes sold by Reliance had caused the food poisoning. However, the court said that despite the medical records not being produced, it was still a major lapse on the part of the seller, and awarded the consumer Rs 10,090 as compensation – Rs 90 as the refund of the faulty product, Rs 5,000 he incurred towards litigation expenses, and Rs 5,000 as compensation for the inconvenience caused to him.

Delhi consumer court fines government department for deficiency in service

Delhi consumer court fines government department for deficiency in service

The consumer forum, New Delhi district, headed by President Arun Kumar Arya, has held the Central Public Works Department (CPWD) guilty of ‘deficiency in service’ for not providing garbage bins in a government residential colony. The court has also imposed a fine of Rs 5,000 on the CPWD, a central government authority in charge of public sector works, while directing it to immediately provide three dustbins to the complainant.

“Bare perusal of the complaint addressed to opposite party (OP) (CPWD) makes it clear that there is no garbage bin in the colony of the complainant. Non-providing of the garbage bin by OP amounts to deficiency in service. We therefore hold OP guilty of deficiency in service and direct them as under. Immediately provide three garbage bins to the complainant. Pay to the complainant a sum of Rs 5,000 on account of pain and mental agony suffered by him, which will also include cost of litigation,” the forum said.

The order came on a complaint lodged by Arjun Singh, who lives in a government accommodation in Nehru Nagar, New Delhi, alleging that no garbage bin was provided in his colony since possession of the houses was given in 2013. He said that he had lodged a complaint in the form of a letter to the director of CPWD on 30 January 2013, for providing proper garbage bins. However, when his complaint was not acted upon, he approached the district consumer forum.

The complaint alleged that he and other allottees of the flats in the society were being forced to pay Rs 300 per month for garbage disposal, which was otherwise the duty of the CPWD, due to which he suffered financial loss and mental agony. The forum, while deciding the complaint, noted that the CPWD had not taken any defence and did not file any written reply rebutting the allegations.

Haj pilgrims are not consumers, can’t claim refund, says top consumer court

Haj pilgrims are not consumers, can’t claim refund, says top consumer court

Haj pilgrims are not consumers, the National Consumer Disputes Redressal Commission (NCDRC) has observed while denying relief to a man and his son who claimed refund for being provided lower-category services by the Haj Committee of India in 2008 despite paying for a higher category.

“It would thus be seen that the Haj Committee is rendering services without any profit motive and is collecting only the actual expenses incurred by it on making arrangements for the Haj pilgrimage,” the commission said. “No fee or service charges are being collected by Haj Committee of India from the pilgrims, for rendering its services to them. Therefore, the complainants cannot be said to be the consumer of the Haj Committee of India within the meaning of Section 2 (1) (d) of the Consumer
Protection Act,” it further ruled.

The consumer commission was hearing an appeal filed by the Haj Committee of India against the Rajasthan state commission order asking it to compensate Abbas Ali and his son Faiyaz Hussain, who had applied for the pilgrimage in 2008 and chose ‘green’ category. They claimed that they had deposited Rs 96,940 each for the pilgrimage but when they reached Saudi Arabia, they were accommodated in a lower category. They approached the district forum seeking refund of Rs 22,362, the excess amount
allegedly charged from them for the green category, but their plea was dismissed. The complainant then moved the state commission, which allowed their appeal and directed refund along with compensation of Rs 10,000 and Rs 5,000 as cost of litigation.

The Haj committee challenged this order in NCDRC. The committee claimed that the complainants had made reservations under the additional quota, and at the time of pilgrimage, the currency exchange rate of Riyal had gone high and it was not possible for the committee to accommodate them in a higher category, for which less money was paid.

The top consumer panel, while allowing the committee’s appeal, noted that the guidelines given under the Haj Committee Act in 2002 said that the services of the Haj Committee of India were free of charge and did not come within the purview of Consumer Protection Act of 1986. It, however, made it clear that the dismissal of the complaint by the consumer panel would not come in the way of the pilgrims availing any other remedy as per law, including approaching a civil court, for redressal of their grievances.

[siteorigin_widget class=”Thim_Heading_Widget”][/siteorigin_widget]
[siteorigin_widget class=”SiteOrigin_Widget_LayoutSlider_Widget”][/siteorigin_widget]