Haryana

Panchkula

CC/42/2018

NARESH BANSAL. - Complainant(s)

Versus

INDIAN RAILWAY CATERING AND TOURISM CORPORATION LTD. - Opp.Party(s)

COMPLAINANT IN PERSON

17 Sep 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

                                                      

Consumer Complaint No	:	42 of 2018
Date of Institution	:	07.03.2018
Date of Decision	:	17.09.2019

 

Naresh Bansal, R/o #1553, Sector-4, Panchkula, Haryana.

 

                                                               ….Complainant

 

Versus

1.     IRCTC(Indian Railway Catering and Tourism Corporation Ltd), B-148, 11^th Floor, Statesman House, Barakhamba Road, New Delhi-110001.

2.     General Manager, Northern Railways HQ, Baroda House, New Delhi-110001

….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Complainant in person. 

                        Ms. Ritu Pathak,  Advocate for OP No.1.

Ms. Veena Bhutani, Advocate for OP No.2.

 

 

ORDER

(Sh. Satpal, President)

1.             The brief facts of the present complaint are that the complainant has booked E-tickets  on-line for Train No.14503/KLK SVDK Express from Chandigarh to Katra for 29.08.2017 vide PNR No.2563611867, Transaction Id generated from IRCTC 100000945464298 and paid amount of Rs.2,020/- online. The Departure time of the above train of the above train was 19.55 from Chandigarh. As per schedule, he had also booked his Hotel (JMK Hotel  Katra), Taxi as well as Railway returned journey  tickets etc. in advance. On the journey day that is on 29.08.2017 at morning the complainant came to know from the Newspaper of Danik Bhaskar of dated 29.08.2017 that above train has been cancelled. Beside  all this, when he enquired the status of the above train on the National Train Enquiry System of Indian Railways, the system shown that the above scheduled train stands fully cancelled. In view of the circumstances, he immediately managed to book on line TATKAL tickets at about 10-07 AM of another Train runs from Ambala to Katra in Train No.22461 Shri Shakti AC Express vide PNR 2664094494 and paid Rs.4,520/- for the same day journey i.e. 29.08.2017 to avoid further loss of Hotel etc. The scheduled departure of the above train was 20.30Hrs from Ambala. The transaction ID of this ticket was 100000958178528 reached Katra. The complainant used his own car from Panchkula to Ambala Railway Station. Since the train was cancelled at the end of Railway so they need not to file TDR or request for cancellation of their ticket. As per rules of IRCTC, they always use to full refund automatically credited to the account from which booking was made. After due wait for his refund, he take up this issue on line with customer care site of IRCTC and they refused online on 06.10.2017 to refund the amount by saying that he has not filed the TDR. Complaint was also filed by the complainant on 11.10.2017 but he withdraws the same on technical grounds. Due to the act and conduct, the complainant has suffered monetary loss and mental harassment. Hence, the present complaint.

2.             Upon notice OP No.1, appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable. On merits, OP No.1 stated that the matter pertains to concerned Railways/ The message of train cancellation or restoration of train etc. is communicated by Railways only. Messages concerning train operations are given to passengers through various means of communication. IRCTC has no control over train operation. Further, refund is decided by the concerned Zonal Railways under whom the last destination station of train falls as per Extant Railways Refund Rules. On receipt of refund amount from the Railways, it is credited to the same account of user through which booking was made, through opted payment gate way. As per Indian Railways Refund Rules, no refund of fare shall be admissible on the ticket having confirmed reservation, in case the ticket is not cancelled or TDR not filed online  up to Four hours before  the scheduled departure of the train. The refund rules have clearly  mentioned  on the website  of IRCTC i.e. in this regard the relevant extract of Rule 1(d) of the Refund  Rules  and TDR Filing w.e.f 12.11.2015 is being reproduced :

Refund  Rules and TDR Filing w.e.f. 12.11.2015:

1. Cancellation charges for confirmed tickets:-

1. Xxxxxxx
2. No refund of fare shall be admissible on the ticket having confirmed reservation.

In case ticket is not cancelled or TDR not filed online up to four hours before the scheduled departure of the train.

The only user who agrees to abide by the terms and conditions set forth by IRCTC and who gives his consent by clicking the “I Agree” button on the said website can transact on the web-site. The above said terms and conditions are duly displayed on the IRCTC portal. Once the user gives his formal consent to these terms and conditions, he enters into a formal agreement with IRCTC for the purpose of transactions on this web-site. Hence the claimant has given his formal consent and is bound to abide by the terms and conditions so mentioned. The terms and conditions which are mandatory before User Registration. Thus, there is no deficiency in service on the part of the OP No.1 and prayed for dismissal of the present complaint with cost.

3.  

4.             To prove his case, the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 has tendered affidavit Annexure R1/A along with documents Annexure R1/1 to R1/3 and closed the evidence. The learned counsel for OP No.2 has tendered affidavit Annexure R2/A alongwith documents Annexure R2/1 to R2/4 and closed the evidence.

5.             Replication to the written statements of the OPs was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

6.             We have heard the learned counsels for the parties and gone through the record including the written arguments filed by the learned counsel of OP No.1 carefully and minutely.

 

7.             The complainant  in the present complaint  has sought  the relief of refund of ticket  fare amounting to Rs.2020/- paid to OP No.1 in lieu of journey which was to be performed through via train no.14503/KLK SVDK Express from Chandigarh to Katra. The claim of the complainant is based on a news report as available on record as (Annexure C-2) wherein the aforesaid train had been shown to have been cancelled. The complainant has contended that the news report was published in the newspaper on the basis of statement made by the Sh. Dinesh Kumar, Divisional Railway Manager, Ambala. The complainant has contended that believing his version true and genuine, he got booked the ticket on 29.08.2017 on Tatkal basis  for journey  to be performed w.e.f. 29.08.2017 from Ambala to Katra to avoid the loss pertaining to the already booked hotel and other facilities at Katra. The complainant has also submitted that the status of the train was shown as cancelled on online/internet(Annexure C-2). It is further contended that the OPs were requested vide mail (Annexure C-3) for refund of the ticket fare but no amount has been refunded to him.

8.             The OP  No.1 has denied the liability in the matter stating that  it has no control or supervision over the running and operations of the trains. The learned counsel stated that there is no lapse and deficiency on the part of OP No. 1 as it had booked the ticket only whereas the running and operation of the train is entirely comes under the domain of OP No.2.

9.             The OP No.2 has resisted the claim of the complainant, apart from disputing the maintainability of the complaint in the Consumer Form in view of the provisions as contained in Section 13 and 15 on Railway Claims Tribunal Act, 1987, on merits stating that train was not cancelled on 29.08.2017 i.e. the date of journey and as per (Annexure-R2/1) the train performed its scheduled journey from Kalka to Katra. The learned counsel vehemently contended that the claim of the complainant is not admissible in view of the provisions has contained in Gazette notification dated 04.11.2015. The learned counsel has contended that the complainant did not apply for refund of the ticket fare as required under the Rule 1(d) of the Refund Rules.

        Having heard the rival contentions of the complainant as also the learned counsel for the parties and perused the relevant record, we deem it expedient to examine the scope of the maintainability of the complaint in the consumer fora keeping in view the provisions as contained in Section 13 and 15 of the Railway Claims Tribunal Act, 1987.

The learned counsel for the OP No.2 while inviting our attention towards the case law as laid down by  Hon’ble State Commission, Punjab in the case title as “Indian Railways & Others Versus Tejinder Singh vide its order dated 27.09.2016 has contended that the jurisdiction of Consumer Form is excluded in the matter of refund of tickets fares.

10.            On the other hand, the complainant has stated that this forum has the jurisdiction to entertain and decide the present complaint keeping in view the provision as contained in Section 3 of the CP Act which provides an additional remedy to a consumer in addition to any other remedy available under any other law.

11.            Upon a conjoint reading of Section 13, 15 and 28 of the Railway Claims Tribunal Act, 1987, it has been found that the jurisdiction of the consumer forum is excluded in the matter of refund of tickets fares. The present case is fully covered by the ratio of law laid down by the Hon’ble State Commission, Punjab while disposing of the case on 27.09.2016 titled as “Indian Railways & Others Versus Tejinder Singh,  wherein in Para No. 8 of the said order the legal proposition has been well discussed in detail which for the sake of the convenience in reproduced as under:-

“From perusal of above referred authorities, we find that Consumer Protection Act was enacted by legislature in the year 1986, whereas  Railway  Claims  Tribunal  was enacted  by legislature  thereafter  in the year 1987 Section 28 of Railway  Claims  Tribunal Act, 1987 is non-obstante  in nature. It makes  it clear that  provisions  of above Act  shall have effect  notwithstanding  inconsistent  therewith  contained in any other law  for the time  being  in force  or in any instrument  having effect  by virtue  of any law  other than  this Act Legislature was aware  of provision  of CP Act,1986, when it enacted above Railway Claims Tribunal Act 1987 it introduced Section 28 of Railway Claims Tribunal Act with specific aim to make  it non-obsante clause in nature Section 15 of Railway Acts bars the jurisdiction  of any other court or authorities. Section 13 of the Act makes it clear that claim lies before Railway Claim Tribunal only with regard to for refund of fares or part thereof. The matter, in dispute  pertains  to refund  of the amount, alleged to  have been  paid by complainant whereas  version of OPs now appellants is that the TTE was found  in possession  of excess of government cash on that day during  the course of raid conducted by the officials  of Northern Railway Vigilance. We find that District Forum has not adverted to the crux of the matter and wrongly observed that it has jurisdiction to try the case. We, thus, hold that in view of Sections 13,15 and 28 of Railway Claims Tribunal Act, 1987, the jurisdiction of Consumer Forum is excluded, because Section 28 of the Act has overriding  effect  over any other law Section 3 of CP Act cannot supersede the jurisdiction of Railway  Claims Tribunal Act, in view of Section 28  of the Act, which was  enacted subsequently  by the Parliament than CP Act, 1986”.

        In the aforesaid order reliance has been placed upon the following case law

The District Forum relied upon  case law titled as

1. Union of India Versus  Shri Ram Jeet Enterprises  reported in F.A.No.411 of 1996, decided on 26^th September 2001 by  National Commission. 
2. Marine Container Services South Pvt. Ltd Versus Go Go Garments(1998) 3 Supreme Court Cases 17, Southern Railway versus Stalin Herald, reported in IV(2012) CPJ 634 (NC), 
3. Revision  Petition  No.3832 of 2010 decided on  15.11.2010 titled as Kacharu Lal Aggarwal versus  The General Manager, South East Central Railway, 
4. Revision Petition No.4465 of 2014 in case  titled as Northern  Railway and another versus Dr. N.K.Singla decided on 09.02.2014
5.  Union of India and another versus Manoj H.Pathak reported in if (1996) CPJ 31(NC)

Although the Hon’ble National Commission while disposing of the Revision Petition No. 2173 of 2017 in the case titled as  Union of India &   2 Ors Versus Gopranjay Dubey vide its order dated 25.01.2018 has held that the Consumer Fora has  the jurisdiction to handle the consumer complaint, keeping in view the provisions contained in the Railways Claims Tribunal Act, 1987, but we find that the Hon’ble National Commission in a later case titled as Kundan Lal Jayaswal Versus E.D. (P.G.) Cell and others reported in 2019(1) CLT 298 (NC) has held as under Consumer Protection Act, 1986, Sections 3 & 11 Railway Claims Tribunal Act, Section 13 & 15 Railway Excess Charges Jurisdiction Complaint filed against the Railways for excess charge of fare-plea of OP that about the excess charges, the complaint shall be filed before  the Railway Claims Tribunal under Section 13 and 15 of the Railway Claims Tribunal Act-held in view of the bar contained in Section 15 of the Railway Act, the District Forum did not have jurisdiction to entertain the complaint, to the extent it related to refund of the excess fare. The Hon’ble National Commission has decided another case titled as  puran Chand Aggarwal and others Versus Union Of India and Others reported in 2019(3) CLT 389 (NC) in the same terms has held that Consumer Protection Act, 1986, 124 A, 123(c)(2) & Railways Jurisdiction the passenger has fallen from the running train as the train started moving without any warning as the passenger was embarking upon it held this case is clearly covered under Section 124A read with Section 123 (c) (2) of the Indian Railway Act, 1989 as cases being covered under Section 124 and Section 124A are covered under the jurisdiction of the Railways Claims Tribunals, therefore, section 15 of the Railway Claims Tribunal act, 1987, barres the jurisdiction of all other courts and authorities. In my view, other courts and authorities will include consumer forum as well. Thus, the jurisdiction of the Commission is barred under Section 15 of the Railway Claims Tribunal Act, 1987 to entertain the present complaint. The Hon’ble Commission in the said observation that Consumer Forum did not have jurisdiction to entertain the complaint to the extend it related to refund of the excess fare. Since the observation made in “Consumer Protection Act,1986, Sections 3 & 11 & Railway Claims Tribunal Act, Section 13 & 15 –Railway–Excess charges-Jurisdiction –Complaint filed  against the Railways  for excess charge of fare-Plea of OP that about the excess charges, the complaint  shall be filed before  the Railway Claims Tribunal under Section 13 and 15 of the Railway Claims Tribunal Act-Held-In view of the bar contained  in Section 15 of the Railway Act, the District Forum did not have jurisdiction  to entertain  the complaint,  to the extent it related  to  refund  of the excess fare alleged to have been  charged from the complainant”, hence it will prevail in the matter  in question.

Therefore in view of the above discussion, we hold that the present complaint is not maintainable before us. It is pertinent to mention here that this Forum has already decided  the issue involving similar question of law and facts while disposing of the complaint No.287 of 2016 titled as Nirmal Singh Vs. Indian Rail, decided on 06.03.2018.

12.            In view of the above legal propositions as settled by the Hon’ble National Consumer Commission in cases (Supra) we have no option except to dismiss the complaint being not maintainable.  However, in the interest of justice, we deem it appropriate to grant the liberty to the complainant to file a fresh complaint on the same cause of action in the appropriate Tribunal/Authority/ Court as per law if he is so advised. The complainant shall be at liberty to file an application before the concerned Court/Authority/Tribunal under Section 14 of the limitation Act for excluding the period spent before this Forum for the purposes of computation of limitation in terms and observations made by the Hon’ble Apex Court in the case of “Luxmi Engineering Works Vs. PSG Industrial Institute 1995(III) SCC P.583”. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:

17.09.2019

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                               President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal,                              

President