BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

                                                   Dated this the 23^rd September 2016

                                                                PRESENT

SMT. C.V.SHOBHA          :  HONBLE PRESIDENT

SMT.LAVANYA M. RAI    :   HONBLE MEMBER

COMPLAINT NO.10/2014

(Admitted on 04.01.2014)

     BETWEEN

A.  PRABHAKARA, 65 years,

S/o late Govindan Vaidyar,

R/o Shree Nilaya, D.No.6.47/3,

Agarmel, Iddya Village,

Surathkal, Mangalore  575 014.

                                                    …….. COMPLAINANT

(Advocate for the Complainant: In person)

          VERSUS

1. Konkan Railway Corporation Ltd.,

    A Govt. of India Undertaking,

    Belapur Bhavan, Plot No.6,

    Sector 11, CBD Belapur,

    Navi Mumbai  400 614.

    Represented by Chairman.

2.  Central Railway,

     New Administrative Bldg.,

     2^nd Floor, Mumbai CST,

     Mumbai  400 001.

     Represented by its General Manager.

3.  The Chief Commercial Manager,

     Central Railway,

     Chatrapathi Shivaji Terminal,

     Mumbai  400 001.

                                              ……. OPPOSITE PARTIES

(Advocate for the Complainant No.1: In person)

(Advocate for the Complainants No.2 & 3: Sri.PJR)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

1.      This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs. 

         The brief facts of the case are as under:

     The complainant with a intention of traveling in Matsyagandha Super Express on 23.01.2012 from Surathkal Mangalore to Lokamanya Thilak terminal Mumbai, hence booked 2 tickets.  Out of 2, one person was not in a position to travel and cancelled the ticket and claim for refund of the amount was claimed by the complainant as instructed by the officials of 1^st opposite party.  Subsequently Chief Commercial Manager (Refund) of the 1^st opposite party informed to expedite the matter complainant should contact opposite party No.3.  On 4.06.2012 complainant received a letter of 2^nd opposite party to send blank cross and cancelled cheque.  On 08.06.2012 complainant submitted blank crossed and cancelled cheque along with covering letter.  As there was no response for considerably long time.  Hence complainant wrote remind letter to 3^rd opposite party on 17.08.2012 and 30.11.2012.  Hence issued a legal notice on 08.06.2013 to refund the amount is not paid to the complainant up till this day.  The opposite parties failed to refund the above amount in ordinate delay which amounts to deficiency and the above complaint came to be filed Under section 12 of the Consumer Protection Act 1986 (herein after reffered to as the Act).  Seeking direction from this Forum to the opposite party to refund Rs. 486/ is value of the ticket with interest 12% per annum from 1/8/2013 & Rs.1,000/ as cost of legal notice along with compensation of Rs.25,000/ and cost of the proceedings.

II.     Version notice served to the opposite parties by RPAD.  The opposite party No.1 in person filed version stated that the refund application of complainant received was duly forwarded to concerned authority which is the authority to deal the cases of refund since the destination station of the said train lies over Central Railway.  Thus opposite party No.1 has immediately on receipt of refund application from the complainant taken prompt action and duly forwarded to the proper authority and the central Railway has received claim application forwarded by opposite party No.1 and intimated the complainant for sending the details of Bank Account along with blank cancelled cheque.  Now it is pending before the Central Railway for want of bank details of the complainant.  The opposite party No.1 further submitted that as per the refund rule of the Railway only destination Railway has to arrange the refund for the TDR.  Hence the opposite party No.1 has forwarded the refund documents to opposite party No.3 and the intimation was sent to the complainant on 16.04.2012.  Hence prays that case against opposite party No. 1 is dismissed.  On the other hand opposite parties NO.2 & 3 filed version through their counsel submitted that, as per the provisions of section 15 of the Railway claims tribunal Act, no court or any authority shall be entitled to exercise any jurisdiction power or authority in relation to the matter referred in section 13 of the aforesaid Act.  Thus Honble Forum has no Jurisdiction and such nature of cases comes within the jurisdiction of Railway claims tribunal to entertain and try such complaints.  Further TDR is issued at surathkal station which is within Jurisdiction of Konkan Railway.  Therefore, Konkan Railway should have made the payment in this case.  It is not clear why the Konkan Railway sent the file of papers to Central Railway for payment.  Therefore, cause of action and delay if any is caused due to the mistake of Konkan Railways only.  The opposite parties 2 & 3 further submitted that as per rule TDR has been issued against one passenger not travelled.  Hence Rs.202/ is correctly paid.  The partys claim for Rs. 486/- is not correct and there is no deficiency of service from opposite party No. 2 & 3 hence prays for dismissal.

III.     In support of the complaint one Sri A. Prabhakar (CW1) complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the documents and same is marked as Ex C1 to C8.  One Mr. K. Jaisankar, Dy. Chief Commercial Manager (Claims) Central Railway, Mumbai (RW1) filed counter affidavit and answered the interrogatories served on him and got marked EX R1 for opposite party.

IV.     In view of the above said facts the points now that arise for our consideration in the case are as under:

1. Whether the complainant proves that the Opposite parties has committed deficiency In service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

      We have considered the notes/oral arguments submitted by the parties and also considered the materials that placed before this Hon'ble Forum and answer the points are as follows:                   

                   Point No. (i) : Affirmative

                  Point No. (ii) to (iii) : As per the final order. 

Reasons

5.  Point No. (i) to (iii):  In the instant case, the complainant had booked two tickets to travel Mumbai by Matsyagandha Super Express from Surathkal Mangalore to Lokamanya Thilak.  But one ticket cancelled and the complainant claimed refund of the amount as instructed by the officials of 1^st opposite party no refund was made nearly for two years hence filed complaint.  The complainant being regarding the service deficiency of the opposite party touching the refund claimed but not regarding the amount to be refunded.  Matters of the service deficiency are not within the ambit or scope of proceeding before the Railway claims Tribunal.  Further considering 2 years delay the opposite party not given acceptable explanation.

On the other hand opposite party No.1 raised a contention that the refund application of complainant received was duly forwarded to concerned authority which is the authority to deal the cases of refund. Since the destination station of the said train lies over Central Railway.  On the other hand the opposite party No. 2 & 3 submitted that the Railway Claims Tribunal Act 1987 section 13 of the Railway Claims Tribunal Act 1987 reads as jurisdiction, powers and authority of claims Tribunal in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.  Further the opposite parties No. 2 & 3 submitted that section 3 of Consumer Protection Act is a general Law.  Railways Act is a special Law and the complainant has applied for refund of fare to Konkan Railway i.e., opposite party No.1 through the station master and has surrendered the ticket to KRCL as opposite party No.1 hence opposite party No.1 has to make payment.  However, Central Railway has taken action for payment on receipt of the letter from Konkan Railway to avoid delay processed the case for payment arranging refund of Rs. 202/ as per rules which is marked as Ex R1.  Hence opposite parties No.2 & 3 prays that not liable to pay the amount.  Hence denied the deficiency.

 On perusal of the oral as well as documentary evidence available on record, we final that there is extra ordinary delay of two years but opposite party No.1 shifted the burden of their negligence to the opposite parties No. 2 & 3. The Central Railway i.e., opposite parties No. 2 & 3 says that the contract of journey is between Konkan Railway and the complainant and the opposite party No.2 has communicated with the complainant calling for particular of cancelled cheque in order to arrange for refund payment through NEFT/ECS but the complainant has not responded hence delay.  After verifying the complainant documents filed it is clearly shows that complainant issued letters to the concerned authorities which  shows in ExC2 to C6.  Section 124-A of the Railways Act 1989, the Railway administration cannot escape the liability having regard to the facts and circumstances of the case and in the light of the incident that had taken place.  Further more reply of RW1 Dy. Chief Commercial Manager (Claims) Central Railway Mumbai CST clearly admitted that genuine claims are being settled within a period of 3 months but in this case the complainant claiming refund of amount for 2 years.  Hence we are come to conclusion that all the opposite parties are committed deficiency in service.

In view of the above discussion by considering the facts and circumstances, we are of the considered opinion that the interest of Justice, we direct the opposite parties are jointly and severally liable to pay the values of the ticket and Rs.10,000/ (Rupees Ten thousand only) as compensation for the extraordinary delay of 2 years to the complainant along with interest of 12% per annum from the date of application for refund submitted to the 1^st opposite party till the date of payment.  Further Rs.2,000/ (Rupees Two thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of receipt of this order.

6.       In the result, we pass the following:          

                                                                                                                  ORDER

The Complaint is allowed.  The opposite parties are jointly and severally liable to pay the value of the ticket and Rs.10,000/ (Rupees Ten thousand only) as compensation along with interest of 12% per annum from the date of application for refund submitted to the 1^st opposite party till the date of payment.  Further Rs.2,000/ (Rupees Two thousand only) awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of receipt of this order.

In case of failure to pay the above mentioned amount within stipulated time, the opposite parties are hereby directed to pay penal interest at the rate of 3% per annum on the total amount.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 23^rd day of September 2016.)

                     PRESIDENT                                   MEMBER

                 (SMT. C.V. SHOBHA)               (SMT. LAVANYA M.RAI)

             D.K. District Consumer Forum        D.K. District Consumer Forum

                         Mangalore.                                             Mangalore.           

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. A. Prabakar  Complainant.

       Documents marked on behalf of the Complainant:

Ex C1 Copy of the Application for refund submitted to  the 1^st opposite party

Ex C2  Copy of the letter dated 5.4.2012 of the Opposite party

Ex C3  Copy of the letter of 3^rd opposite party dated 24.05.2012

Ex C4  Copy of the letter dated 8-6-2012 written to 3^rd Opposite party

Ex C5  Copy of the letter dated 17-8-2012 written to 3^rd Opposite party

Ex C6  Copy of the letter dated 30-11-2012 written to 3^rd Opposite party

Ex C7  Copy of the lawyer’s registered notice dated 8.6.2013

Ex C8  Copy of the Postal Acknowledgment.        

    Witnesses examined on behalf of the Opposite Parties:

 RW1  Mr. K. Jaisankar, Inhabitant Dy. Chief Commercial Manager (Claims) Central Railway, Mumbai CST

    Documents marked on behalf of the Opposite Parties:

R1 Refund Rules

Dated: 23.09.2016                           MEMBER