Mr. Justice R.N. Mittal, President—This appeal has been filed by the OP against the order of the District Forum (D.F.) dated 11-1-93.

2. Briefly, the facts are that the complainants travelled from Madras to Delhi on 23.12.91 by Tamilnadu Express, which leaves Madras at 21.00 hours. It left Madras at 22.20 hours. It is alleged that on 24.12.91 it was detained somewhere in the forest area for about seven hours i.e. from 15.00 hours to 22.00 hours without any reasonable cause.

3. It is further pleaded that on 24.12.91 no evening tea and dinner was served to the passengers causing unbearable agony to them. A complaint was lodged at Amla Station by them but inspite of that no proper arrangements for food were made for that night and for the next day. The train reached Delhi on 25.12.91 at 16.50 hours instead of the scheduled time of 06.45 hours.

4. It is next pleaded that the train was a superfast train for which they had paid higher charges and in few of the late arrival of the train by more than nine hours they were entitled to get the refund of the extra charges paid for that train. They also claimed damages for harassment and inconvenience.

5. The complaint was contested by the OP. In their written statement it is stated by them that the delay in departure of the train from Madras Central was due to the ‘rail fracture’. The train was further delayed near Amla Station due to failure of the electric locomotive engine. Both the circumstances were unforeseen circumstances and beyond the control of the Railway Administration.

6. It is further stated by them that it was incorrect that no evening tea or dinner was served on 24.12.91. The train was a fully vestibuled train with the pantry car and that coffee, Vadas, Dosas, Omelette etc. were sold on the evening of 24.12.91 to the passengers who wanted these items. At Amla Station there is a recovery room and the platform has vending facilities. Upma, Vadas and Omelette in large quantity were sold to the passengers there. Similarly, on the next day Omelette, butter, bread etc. was served in lieu of lunch as the train was running out of schedule.

7. The learned District Forum directed to OP to refund the difference in the fare of the passenger train and the superfast train to the complainant and pay to them Rs. 250/- each as damages for inconvenience and harassment. The OP has come up in appeal to the Commission.

8. The main question that arises for determination is, whether there were sufficient reasons for delaying the train for about 9 hours. The delay at Madras Station is stated to be due to the rail fracture. Nothing has been brought on the record at what time the rail fracture was detected and how and when it was repaired. The affidavit of Mr. M.S. Bhatt, Assistant Electrical Engineer does not even mention about the said defect. The fact was within the knowledge of the OP and it was their duty to have explained the same to the Commission. Consequently, it cannot be held that the OP appellant has sufficiently explained the delay in starting the train at Madras for one hour and twenty minutes.

9. Now it is to be determined why the train was delayed between Multai and Jaulkhera. It is stated in the affidavit of Mr. Bhat that the engine went out of order at 17.28 hours and it was replaced by another engine at 20.10 hours. Thus, it took them about three hours to replace the engine. It has not been explained from what distance the replacement was brought. It was the duty of the appellant to have produced the records to prove that the engine could not be replaced before that time so that the Court could examine the same. However, it has not been done. Thus, an adverse inference is to be drawn against him. It was also the duty of the appellant to have brought to the notice of the Commission as to why the engine of the train went out of the order. This has also not been done.

10. It is further stated in the affidavit of Mr. Bhatt, that the train had to be detained for about two hours because th