BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 26th May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.201/2013
(Admitted on 23.7.2013)
Miss. Ashwini Tirkey,
Aged about 19 years,
D/o Mr. Siddarth Tirkey,
Residing at 165/C,
Railway colony,
Behind Muthappan Temple,
Hampankatta, Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri SKU)
VERSUS
- The Post Master,
Post Office,
Hampankatta, Mangalore.
- The Divisional Railway Manager,
Palakkad, Kerala State.
- The Station Manager,
Southern Railways,
Mangalore Junction,
Mangalore
…......OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri. GKB)
(Advocate for the Opposite Party No. 2 and 3: Sri. PJR)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay of Rs.2,00,000/ damages for mental agony, stress and inconvenience, to pay of interest at the rate of 18% p.a. on Rs.2,00,000/ from 3.6.2013 till realization, to pay of Rs.2,000/ cost of the legal notice.
2. In support of the above complaint the complainant Miss. Ashwini Tirkey, filed affidavit evidence as CW1 and answered the interrogatories served on her and produced documents got marked at Ex.C1 to C7 as detailed in the annexure here below. On behalf of the opposite parties V.D. Sunny, (RW1) Chief Commercial Clerk, also filed affidavit evidence. K.A. Jayendra Kumar, (RW2) CTI/SL/BIC/PGT, Divisional Officer, Southern Railway, also filed affidavit evidence. Mr.Shailesh Kumar, (RW3) Post Master, also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R11 as detailed in the annexure here below.
The brief facts of the case are as under:
We have perused the complaint and the version of the parties. The dispute is with regard to travelling in train with Xerox copy of the original ticket and privilege pass (travel authority) and refused to travel by the railway TTE. The complainant alleges that her father is the railway TTI and booked tickets through free pass for her from Bhuvaneswar to Mangalore via Chennai. But the original ticket and the pass even though posted, not reached the complainant/traveller in time. So the complainant boarded the train from Chennai to Mangalore with Xerox copy of the ticket and the pass. She claims she had original ADHAR card also. When TTE came to check the ticket, she identified her as the daughter of the TTI a railway employee and she is travelling under the railway privilege pass and her father booked ticket for her and shown the Xerox copy of the ticket and the pass and the ADHAR card to the TTE. But TTE not allowed her to travel without producing the original travelling authority (privilege pass). The complainant also alleges that the TTE misbehaved and pushed her out in spite she has offered to pay the ticket fare and fine or penalty. Hence alleges deficiency in service on the part of the opposite party no 2 and 3 and the opposite party no 1 for not delivering the original pass and the ticket which was sent by speed post, in time. The opposite party No 1 defended by submitting that the complainant is not the consumer either the addressee or the sender is not the complainant herein. There is no relation of consumer and the service provider between them and the complainant and opposite party No 1 is not the party to the complaint and hence the complaint against them to be dismissed. The opposite party 2 & 3 contested on the ground that the TTE the railway servant has done his duty as the travellers without original ticket and the travel authority are considered as irregular travellers and the Xerox copy of the ticket is not allowed as per railway rules. However the complainant was given an option to travel if she pays the ticket charges of Rs. 1,440/, but she said she does not have that much cash and she will manage. The opposite party said that, TTE after finishing ticket checking in other compartments went to the compartment where the complainant was sitting, to regularize her journey. But the complainant was not available but co-passengers informed that she had left with her baggage. Hence there is no deficiency in service on the part of them. The opposite party 2 & 3 also contended that the complaint is not the consumer as per Consumer Protection Act 1986. These are being the facts of dispute we are of the view to decide the following
POINTS FOR ADJUDICATION
We have gone in detail the evidence lead by the parties and the documents produced by the parties, the admitted material facts are the complainant boarded the train No.12601 Mangalore Mail in Chennai to proceed to Mangalore by holding Xerox copy of the railway privilege pass and the ticket booked under railway privilege pass issued to her father who is a railway TTI. It is also admitted that the TTE at Chennai refused to allow her to travel without original pass and the fact that the father of the complainant is a railway employee. It is denied that the opposite party TTE had misbehaved with her and pushed her out and the deficiency in service on the part of the opposite parties. It is denied that the complainant is the consumer under Consumer Protection Act 1986. These are being the facts of dispute we are of the view to decide the following
- Whether the complainant is the consumer under the consumer protection Act 1986?
- Whether complainant proves the opposite party TTE misbehaved with the complainant and pushed her out which amounted to deficiency in service?
- Whether the complainant is entitled for the relief prayed for?
- What order?
On considering the facts evidence and the documents on record and the law pertaining to the issue on hand, we have taken note of notes filed and heard the party counsels’ submissions and answered the points as under:
- In the affirmative against opposite party No 2 & 3 only
- In the negative.
- In the negative.
- As per delivered order.
REASON
POINT NO 1: The complainant produced the railway ticket as EX C 1 and EX C 2 and claims it is issued to her. The opposite party not disputed the ticket issued to her under the privilege pass of her father. It is also admitted fact that the complainant boarded the train with an intention to travel to Bangalore from Chennai. Hence relation of consumer and the service provider established. The opposite party No 2 and 3 contended that since she is not holding proper ticket and also consideration not passed but free pass, the complainant is not the consumer. The privilege pass issued to the employee is on the basis of service being rendered by the employee and it is the perquisite. The opposite party not denied the issue of ticket to the complainant and hence the argument that there is no consideration will not sustain. As far as the opposite party No 1 contention is concerned we are inclined to hold that the speed post was not booked by the complainant and also not addressed to the complainant. As such there is no doubt to hold the complainant as not a consumer to the opposite party No 1. Hence we answered the point no 1 in the affirmative against the opposite party No 2 & 3 only.
POINT NO 2: In the perspective of the relief claimed that, the damages for mental agony stress and the inconvenience, the deficiency in service is alleged in respect of the misbehaviour of the TTE of the opposite party with the complainant while checking the ticket. The complainant alleges that she was holding Xerox copy of the ticket and Xerox copy of privilege pass, but the TTE insisted on the original pass in spite of she was holding Xerox copy of the ticket and the privilege pass and her name was entered in the chart which affirms the booking of the ticket in her name. The opposite party contended that the complainant did not have original travelling authority that is privilege pass which is as per rules one should hold while travelling. As per our understanding the dispute is not with regard to the original ticket but it is with not holding of the original privilege pass a travelling authority. The money as consideration for the ticket is not involved. It is true that the opposite party TTE is duty bound to adhere to the rules framed by the railway authority. As for this issue is concerned we cannot expect an employee should break the rules even if it is on natural justice. The employees do not have discretionary power in relaxing the rules. Hence in our opinion the TTE is right in not allowing the complainant from travelling without authority. The adhering to rules in the result has given rise to the deficiency in service alleged by the complainant. The main allegation of the complainant is the opposite party TTE misbehaved with her and pushed her out. As such the burden is on the complainant to prove the misbehaviour and pushing her out by the TTE and thereby deficiency in service.
2. The complainant has not produced any evidence of the witness or the documents to prove the misbehaviour except alleging in the sworn in affidavit. On looking into the case as whole, the facts manifested as per documents and the evidences that, the complainant’s father is a railway employee and entitled for travelling in railways with pass for himself and his family members. The father of the complainant Mr Siddharth Tirkey TTI in railways booked ticket for his daughter along with other family members but only the complainant Ashwiny Tirkey travelled. The ticket was booked from Bhuvaneswar to Mangalore via Chennai. And the tickets and the pass in original posted through speed post but not reached in time. The complainant boarded the train with the fax copy of the ticket and pass. The complainant stated that she started her journey with her uncle by buying a separate ticket for him. The complainant and her uncle somehow managed in the train from Bhuvaneswar to Chennai but in Chennai She was not allowed to travel from Chennai to Mangalore. The TTE named K A JAYENDRA KUMAR not allowed her to travel.
3. The complainant alleges she was ready to pay the penalty and the ticket fare and she offered to the TTE but the TTE not cooperated but misbehaved and pushed her out. The complainant had given a complaint at the railways office at Mangalore marked as EX R 3 alleging that the TTE talked rudely and arrogantly and pushed her from the bogie. The railway dept. conducted an enquiry and taken the statements from the TTE Mr. K A JAYENDRA KUMAR and Mr.TTE Abdul Basheer. The TTE Mr. K A JAYENDRA KUMAR stated in his statement (EX-R 5) that he had received a phone call from the TTI Mr Siddharth Tirkey and stated that he had informed him about Mr Siddharth Tirkey’s daughter is travelling in the train and she does not have original ticket and the original travelling authority and she should be allowed to travel. The K A JAYENDRA KUMAR stated, he is not agreeable to the suggestion but Mr Siddharth Tirkey said he will see him some other way. The K A JAYENDRA KUMAR stated that he went on checking the ticket and found the complainant is in the II AC couch in seat no 33. He alleged the complainant stated that she do not have original pass and her father instructed and the TTE has to do as her father instructed and she must be allowed to travel. The K A JAYENDRA KUMAR stated that he has not agreed to allow her to travel but gave an option to her to pay the ticket charges of Rs.1,440/- if she do not have original travel authority but she stated she is short of money and she will manage. After collection of difference in fair and issue of tickets in other compartments he went back the compartment where the complainant was sitting but did not find her in the seat and came to know from the other passengers that she went out with her luggage. The K A JAYENDRA KUMAR who has put up the service of 38 years stated that he swears he has not misbehaved with her and not pushed her out of compartment but throughout behaved decently and elegantly.
4. The complainant also alleged in her complaint that the other TTE of the first class compartment also not obliged in allowing her to travel and supported the K A JAYENDRA KUMAR. In the enquiry the alleged other TTE one Mr Bhasheer Ahmads statement also taken. He also stated that no lady or the complainant Ashwiny Titkey had contacted him for requisition of the accommodation. Hence it is clear that the enquiry conducted by the opposite party authority did not reveal any misbehaviour from the part of the TTE K A JAYENDRA KUMAR or supporting by the first class compartment TTE Mr. Basheer Ahmad. This enquiry is not challenged or even the complainant not served any interrogatories to elicit any evidence of misbehaviour.
5. We also had a glance in the provision in Railways Act 1989. The provisions pertaining to the case on hand are Section 54,55,137 and 138. Section 54 mandates the passengers to present their pass or ticket when demanded. Section 55 prohibits travelling without pass or ticket as the case may be. The wordings of the section categorical which states No person shall enter or remain in any carriage on a railway for the purpose of travelling therein as a passenger unless he has with him a proper pass or ticket…. Section 137 and 138 is the provision with regard to penalty for irregular passengers (who do not hold the pass or ticket). Those passengers can pay fine and travel. And the TTE are duty bound to collect penalties and differences in elevation of accommodation. The question is when there is provision to pay penalty or ticket charges as per Act and there is duty for the TTE to collect fine and the fare why he will not oblige to collect the ticket fare or the penalty as the case may be? So the allegation of misbehaviour and of not collected the penalty even though the complainant is ready to pay is refutable.
6. There is strong presumption and established principle that the TTE are the government servants and will behave politely and if in a situation of travel without authority they will collect extra money and/or penalty and allow the passengers to travel. We do not understand when there is specific provision in the Act to regularize the travel why the TTE should reject the payment and misbehave that too it is evident from the statements that the TTE K A JAYENDRA KUMAR is of 38 years of experience? The complainant has to provide strong and cogent evidence to assail the presumption.
7. The complainant stated that she travelled with her uncle. There was opportunity for the complainant to examine her uncle to prove the misbehaviour but the complainant not used the opportunity and not explained why she not opted for examining her uncle as the opposite party learned advocate Shri Janaki Ram vehemently argued.
8. The allegation is of such a grave nature that a government servant misbehaved with a lady passenger and pushed her out of Bogie that too in the night hours at 8.15 pm is to be viewed much seriously. It is to be noted that her father is also a TTI. Why no police complaint or private complaint is lodged apart from complaint in railways office at Mangalore?
9. It is also alleged that the father of the TTE Mr Tirkey has contacted K A JAYENDRA KUMAR and asked him to facilitate the travel of his daughter without privilege pass in original which was not obliged. The opposite party provided the evidence of phone call log to show there was a phone call from Mr. Tirkey to Mr K A JAYENDRA KUMAR before the journey time. The conversation is not recorded but the complainant answered for an interrogatories after admitting the phone call but stated her father instructed him to issue ticket to her after taking required amount. It is not explained when there is provision in the law to that effect why the instruction required?
10. To sum up, it is established that the complainant tried to travel without valid travel authority and not paid the required fare and penalty as per provision for regularizing her journey. There is also provision in the Act under section 55 (2) to the servants to travel without authority ordinarily with certificate with a condition to pay later which is not used by the complainant’s father. It is also established that the complainant’s serious allegation against an officer on duty is not proved and found the complaint as frivolous. We are of the opinion that the complainant not proved the deficiency in service against the opposite party No 2 & 3. Hence we answered the point no 2 in the negative.
POINT NO 3: As per above discussion in detail we hold the complainant not proved his serious allegation against the opposite party and is not entitled for any relief. Hence we answered the point no 3 in the negative.
2. However the opposite party prayed for dismissal of the complaint with cost. On observing the whole facts in the complaint allegation we found it is concocted and the serious allegation against a government servant without any piece of evidence and a serious allegation of misbehaving with a lady and she was pushed her out of bogie which amounts to manhandling. The alleged deficiency in service of committing an offence against a women, which is punishable under the women protection Act if proved, should have fore thought before filing complaint. But the complainant not taken seriously the gravity of allegation and filed this frivolous complaint. The other facts alleged is her father tried to influence another TTE for committing dereliction of duty and it is pertinent to note that the complainant had travelled as per record from Bhuvaneswar to Chennai without proper travelling authorities which worth to be enquired into.
3. The complainant to prove his serious allegation not done anything like serving interrogatories, examining any co passenger or even her uncle who is said to be travelled with her, and not given any police complaint. Under these circumstances we are bound to hold the complaint allegation is without leg to stand and the flesh to stuff and it is misuse of the beneficial legislation. We termed the complaint is frivolous and vexatious and will attract the section 26 of the consumer protection Act to axe with penalty. Hence we are of the view that the complainant shall pay the opposite party an amount of Rs 5,000/ and the same will be given to the TTE Mr. K A JAYENDRA KUMAR who has suffered mental agony and torture because of the vexatious complaint.
POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint is dismissed with penalty. The complainant shall pay an amount of Rs.5,000/ towards penalty to the opposite party which amount shall be given to the TTE Mr. K A JAYENDRA KUMAR within 30 days from the date of the copy of this order received.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 13 directly typed by Member, revised and pronounced in the open court on this the 26th May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore. Additional Bench, Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1: Miss. Ashwini Tirkey
Documents marked on behalf of the Complainant:
Ex.C1: 24.2.2013: Original copy of the Railway Ticket.
Ex.C2:25.2.2013: Original copy of the Railway Ticket with railway pass.
Ex.C3: 25.2.2013: Postal envelope containing railway ticket sent by speed post to Bhuvaneshwar (Original) Not opened.
Ex.C4: Copy of the Adhar Card.
Ex.C5: 03.6.2013: Officer copy of the legal notice.
Ex.C6: Postal Receipts.
Ex.C7: Postal acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
RW1: V.D. Sunny, Chief Commercial Clerk
RW2: K.A. Jayendra Kumar, CTI/SL/BIC/PGT, Divisional Officer, Southern Railway
RW3: Mr.Shailesh Kumar, Post Master,
Documents marked on behalf of the Opposite Parties:
Ex.R1: 25.2.2013: Attested copy of the Reservation chart for AC 2 tier sleeper of train No.12601 Mangalore mail lacing Chennai central (3 sheets).
Ex.R2: 25.2.2013: Attested copy of the chart of Train No.12601 Mangalore mail leaving Chennai central.
Ex.R3: 26.2.2013: CC of the complaint written in public complaint suggestion book at Mangalore central Railway station recorded by Ashwin Tirkey P.N.R.No.4149274897 train No.12601.
Ex.R4: 26.2.2013: Covering letter sent by station master, Mangalore central enclosing the above document to Sr.DCM/Palakkad.
Ex.R5: 15.3.2013: Explanation given to the Sr, DCM/Palakkad by Sri K.A.Jayendra Kumar, CTI/SL/BCI/PGT.
Ex.R6: 30.9.2013: Explanation given by Sri. P.K. Abdul Bhasheer Travelling ticket inspector.
Ex.R7: 21.11.2013: Information obtained through RTI Act from BSNL regarding call details of Jyakumar KA for 25.3.2013.
Ex.R8: 20.8.2013: Reply to the lawyers notice sent by DRM (Commercial) Palakkad.
Ex.R9: Speed post booked register extract dated 20.2.2013.
Ex.R10: Posting order to Hampanakatta PO.
Ex.R11: Email letter dated 18.6.2013.
Dated: 26.5.2017 MEMBER
