Complaint filed on: 24-01-2012 Disposed on: 17-05-2013 BEFORE THE BANGALORE IV ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052 C.C.No.165/2012 DATED THIS THE 17th MAY 2013 PRESENT SRI.J.N.HAVANUR, PRESIDENT SRI.H.M.SHIVALINGAPPA, MEMBER Complainants: - 1. Dr.M.K.Narayanamurthy S/o. late M.S.Krishnaiah Aged about 58 years, Consultant-Anesthesiologist, No.111, 2nd cross, Domlur layout Bangalore-71 2. Mrs.S.Sudhavani, W/o. Dr.M.K.Narayanamurthy, Aged about 48 years, Receptionist, Bangalore 3. R.Narendran S/o. late Radhakrishna, Aged about 49 years, Consultant for land scape development, B-2, Laksha paradise, 1st Main, G.M.Palya, BEML gate, Bangalore 4. Mrs.Rekha Narendran, W/o. Narendran, Aged about 40 years, HR consultant, Hewlett Packard, Mahadevapuram, Bangalore 5. Sri.Arya Narendra, D/o. Narendran Aged about 13 years, Student 6. Sri.Akash Narendran, S/o. Narendran, Aged about 17 years, Student 5 and 6 are minors, Reptd by next friend and father R.Narendran, 3rd complainant 7. Sri.A.P.Raghavan S/o. late M.P.Krishnan Aged about 74 years Pensioner V/s Opposite parties: - 1. Indian Railways, Reptd by General Manager, South Western Railways, Bangalore – 23 2. Sri.R.Srinivas S/o. Mr.M.Venkatesh, Aged about 38 years, Proprietor Sri. Venkateshwara Travels, No.795, B-Type BDA flat Domlur, Bangalore-71 ORDER SRI.J.N.HAVANUR, PRESIDENT This is a complaint filed by the complainants against the OPs no.1 and 2, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs to pay an amount of Rs.2,25,997=00 alongwith 12% interest from 28-5-2011 to till the date of realization and grant such other relief as deemed fit, in the interest of justice and equity. 2. The brief facts of the complaint can be stated as under. The complainants no.1 to 7 are all the residents of Bangalore. The complainant no.1 is a medical professional, and the second complainant is his wife and is a receptionist in a doctor’s clinic, the third complainant is a consultant in landscape development and the fourth complainant is a HR consultant in HP. The fifth and sixth complainants are minors/students and are the children of the complainant no.3 and 4 and the seventh complainant is a pensioner and the father of the fourth complainant. The second OP is a travel agent. The complainants were contemplating a tour to important places in the Himalayan Region. ¨Being a travel agent, the 2nd OP offered his services for booking railway reservations and flight reservations for the entire group of the complainants, and accordingly, the 2nd OP reserved the travel tickets at Bangalore for the entire group of the complainants through railways and Indigo Airlines Flight on 26-2-2011 and 10-2-2011 respectively, and for the return journey, he reserved railway tickets for the group through train no.12206 i.e. Dehradun-New Delhi express from Dehradun to New Delhi for the Journey date 27-5-2011. The scheduled time of departure was 23.25 hrs on 27-5-2011, and the scheduled arrival time at destination was 5.00 hrs on 28-5-2011. Onward reservation for the flight was made through Indigo Airlines from New Delhi to Bangalore. The schedule departure time for the flight was 9.20 hrs on 28-5-2011 at New Delhi airport. During the return journey, unfortunately, the arrival of the train at New Delhi station was delayed by 4 ½ hrs. The scheduled arrival time was 5.00 a.m. whereas the train arrived at 9.27 a.m. at New Delhi station. Hence, the group of the complainants could not board the scheduled flight. Due to the much delayed arrival of the train from Dehradun to New Delhi, the complainants not only missed the connecting flight but also were unable to cancel their flight tickets. Thus left with no other option they were forced to stay back at New Delhi incurring huge cost, physical and mental agony, tension and a lot of inconvenience. For instant reservation of ticket through another flight they were forced to pay extraordinary price, through GO Airlines, while the proportionate price for earlier return flight tickets was Rs27,454=00. The price for the flight tickets booked later incurred an additional cost of Rs.45,997=00. Had the train arrived at New Delhi station at scheduled time, the complainants would not have incurred this amount for later flight. A legal notice dated 12-8-2011 was issued through RPAD to the OPs no.1 and 2, the OP no.1 has given a untenable reply, and the OP no.2 did not give any reply. However, a rejoinder dated 28-10-2011 has been issued to OP no.2. The OP no.2 is the authorized agent of the OP no.1. The complainant made demands on the OP for payment of the said amount, they also got issued a legal notice and rejoinder notice, but their efforts went in vain. The failure of the 1st OP to run the train no.12206 on 27/28-05-2011 as per schedule time and the failure of both the OPs to pay the demanded amount to the complainants is deficiency of service on their part. Hence, the present complaint is filed. 3. After service of notice, the OPs no.1 and 2 have appeared through their counsel and filed their versions separately. 4. The averments of the version of OP no.1 can be stated as under: The above complaint filed by the complainants is not maintainable. The complaint is frivolous and vexatious and filed solely with an intention to harass the first OP. The OP no.1 is not properly represented so the complaint is liable to be dismissed. This OP denies the para no.3 of the complaint. The 1st OP had no role to play nor had given any assurance to the complainants regarding arrival / departure of the trains or compensating the complainants due to any inconvenience caused to him while on their tour. This OP denies the para no.4 of the complaint totally. This OP admits that there was delay in arrival of train no.12206 at Delhi on 28-5-2011, the delay was due to operational reasons and the same was not deliberate and delay, if any, is always caused or subject to vagaries of weather or any other technical reasons. In the instant case, train no.12206 left Dehradun on time. However, enroute when the train reached Tapri station at 0212 hrs the train was held up due to cutting and theft of over head equipment between Nagali station and Talheri Bazurg station at Km no.161/2- 161/8. This was reported by driver of train no.12903, which was also held up, immediately thereafter the technical staffs were pressed into service and the staff attended the OHE line till 4.35 am of 28-5-2011 and the line was restored. Consequently, train no.12206 departed Tapri station at 0526 hrs after clearance of train no.12903 and further no clearance of track was possible without giving first clearance to train no.12903. Therefore, for the un-expected and the events beyond the control of Railway authorities if any delay is caused in arrival and departure of trains, railways cannot be held responsible. In fact, the disclaimer in this regard is notified by the railways in train at a glance, a handy guide printed by railways for the benefit and information of travelling public and time table boards of each station. Further to the above the rule no.115 is printed in IRCA stating under the heading of Punctuality of trains as under: “115. Punctuality of Trains: - Railways do not guarantee the arrival or departure of trains at the times specified in the time tables nor will they be accountable for any loss or inconvenience which may arise to passengers from delays or detention to themselves or their luggage”. Therefore it is quite clear that it is highly impossible to guarantee the arrival and departure of train in or on time as the same is subject to operational reasons. The notice of the complainants has been replied suitably and claim of the complainants cannot be considered in view of disclaimer clause in the time table. Though the passengers were informed about the delay caused on account of snapping of over head electrical wire the complainants deliberately with a malafide intention to gain unethically for no fault of railways filed the complaint against the 1st OP. This OP is not responsible or liable for any alleged amount spent by complainants due to late arrival of train, as the delay was not due to any deliberate act on the part of railways. So, the question of compensating the complainants by first OP does not arise. The complainants have claimed exaggerated amount of compensation and its s also indication of fact that the complainants are unreasonable and the complaint is filed with malafide intention, hence, it is prayed to dismiss the complaint with exemplary cost. 5. The averments of the version of OP no.2 can be stated as under: The scheduled arrival time was 5.00 a.m, whereas the train arrived at 9.20 a.m at New Delhi station, due to delayed arrival of the train, the complainants missed the connecting flight to Bangalore, so the complainants have filed the complaint seeking for refund of a sum of Rs.2,25,997=00 with an interest at 12% p.a. from the OP. All the allegations made by the complainants against the 2nd OP are all false and denied absolutely. The OP no.2 is an authorized travel agent for the Indian railways and for several airlines dealing only with the booking and cancellation of tickets. It is true that, the 2nd OP offered his services for booking airlines and railway reservations and that the complainants booked their flight and railway tickets from the 2nd OP. The 2nd OP is not liable for the delay of the Dehradun – New Delhi express train. The delay in the arrival of the train was due to unforeseen circumstances and it is vis-major and as such no claim can be made against the 2nd OP. There is no deficiency of service on the part of the 2nd OP. So it is not possible to refund the amount claimed by the complainants. The 2nd OP is in no way responsible for the excess airfare incurred by the complainants, it is highly impossible to believe the story put forward by the complainants. The 2nd OP did not send a reply notice to the complainants as no specific claim was made against the 2nd OP. The amount claimed by the complainants was only against the 1st OP, so the OP no.2 did not reply to the rejoinder notice. IndiGo airline is a necessary party to this complaint. The claim in the complaint is not at all maintainable against the 2nd OP. Hence it is prayed to dismiss the complaint with cost, in the interest of justice. 6. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration. 1. Whether the complainants prove that, there is a deficiency of service on the part of the OPs in not running the train no.12206 on 27-5-2011 as per schedule time without any reasonable cause or reason? 2. If point no.1 is answered in the affirmative, what relief, the complainants are entitled to? 3. What order? 7. Our findings on the above points are; Point no.1: In the Negative Point no.2: In view of the negative findings on the Point no.1, the complainants are not entitled to any relief as prayed in the Complaint Point no.3: For the following order REASONS 8. So as to prove the case, the complainant no.1 has filed his affidavit by way of evidence and produced documents as annexure-A to J. On the other hand, one Ramesh, Senior Divisional Commercial Manager of the 1st OP has filed his affidavit and produced three documents as annexure-R1 to R3, and also produced four document with list dated 9-1-2013, and four more documents produced with list dated 18-4-2013. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously. 9. One M.K.Narayana Murthy, who being the complainant no.1 has stated in his affidavit that, he is deposing on behalf of himself and other complainants, they were contemplating a tour to important places in the Himalayan Region. The 2nd OP being a travel agent has offered services for booking railway reservations and flight reservations for the entire group of the complainants, and accordingly, he reserved the travel tickets at Bangalore for the entire group of the complainants through railways and Indigo Airlines Flight on 26-2-2011 and 10-2-2011 respectively, and for the return journey, he reserved railway tickets for the group in train no.12206 i.e. Dehradun-New Delhi express from Dehradun to New Delhi for the Journey date on 27-5-2011. The scheduled time of departure was 23.25 hrs on 27-5-2011, and the scheduled arrival time at destination was 5.00 hrs on 28-5-2011. Onward reservation for the flight was made through Indigo Airlines from New Delhi to Bangalore. The schedule departure time for the flight was 9.20 hrs on 28-5-2011 at New Delhi airport. During the return journey, unfortunately, the arrival of the train at New Delhi station was delayed by 4 ½ hrs. The scheduled arrival time was 5.00 a.m. whereas the train arrived at 9.27 a.m. at New Delhi station. So, the group of the complainants could not board the scheduled flight. The complainants not only missed the connecting flight but also were unable to cancel their flight tickets. Thus left with no other option they were forced to stay back at New Delhi incurring huge cost, they were put to physical and mental agony, tension and a lot of inconvenience i.e. the proportionate price for earlier return flight tickets was Rs.27,454=00. The price for the flight tickets booked later incurred was Rs.45,997=00. Had the train arrived at New Delhi station at scheduled time, the complainants would not have incurred this amount for later flight. The later flight left New Delhi at 8.55 p.m. Till then the complainants had to make unscheduled alternative arrangements for their stay at New Delhi. A legal notice was issued to the OPs no.1 and 2, the OP no.1 has given an untenable reply, and the OP no.2 did not give any reply. However, a rejoinder has been issued to OP no.2. The OP no.1 and 2 are jointly and severally liable to compensate the complainants. The complainants are also entitled for compensation for mental, trauma and physical strain, anxiety, inconvenience etc. and quantified at Rs.1,40,000=00 and the loss of income for the complainants no.1 and 3 @ Rs.20,000=00 each, the cost of air tickets by subsequent flights was Rs.45,997=00 and in all total they have claimed Rs.2,25,997=00 . The failure of the 1st OP to run the train no.12206 on 27-5-2011 as per schedule time is a deficiency of service on their part. So he prays to pass an order, directing the OPs to pay s.2,25,997=00 with 12% interest p.a. from 28-5-2011 to till the date of realization and grant such other relief as deemed fit in the ends of justice. 10. By a careful reading of the complaint and evidence of the complainant no.1 as mentioned supra, it is made clear that, the complainant no.1 has tendered his evidence in accordance with the averment of the complaint. Let us have a look at the relevant documents of the complainants, so as to know whether the oral testimony of the complainant no.1 is supported by documentary evidence or not. The complainants have produced copies of two railways reservation tickets showing the date of journey as 27-5-2011 from Dehradun to New Delhi and departure time was 23:25 hrs and the name of complainants are found appearing and flight tickets issued by GoAir in the name of complainants for onwards and return journey is produced by the complainants and as per the said tickets, the date of departure was 28-5-2011 at 20:55 hrs, the total cost of airlines was Rs.45,997=00. The complainants have produced air tickets issued by IndiGo from Bangalore to New Delhi on 15-5-2011 and also from New Delhi to Bangalore on 28-5-2011 having departure time from New Delhi at 9.20 a.m. and total cost of the flight was Rs.19,690=00 for onwards journey and return journey price was Rs.19,610=00. Next document of the complainants is the copy of legal notice dated 12-8-2011 issued by the complainants’ lawyer to the OPs stating that, the complainants boarded the Dehradun to New Delhi express train no.12206 on 27-5-2011 at 23:25 hrs, the scheduled arrival of the train at New Delhi railway station was 5:00 a.m. on 28-5-2011, but the train reached New Delhi railway station only at 9:27 a.m. and there was delay of more than four hours and due to that, the complainants stranded in the New Delhi railway station and missed the flight and booked fresh return flight tickets by paying Rs.45,997=00, so the complainants called them to pay Rs.2,25,997=00 with interest at 24% per annum alongwith cost of the notice. The complainants have produced the copy of letter issued by the railway department dated 26-8-2011 stating that, the railway administration disclaims liability for any inconvenience, expense or damage resulting from errors in this timetable for the information of public at large. This disclaimer has already been published in the trains at a glance railway time table effective from July 2010. Next documents of the complainants is the copy of legal notice issued to the OP no.2 dated 28-10-2011 calling upon him to pay an amount of Rs.2,25,997=00 alongwith interest. The complainants have produced the copies of postal receipts for having issued notice to the OPs. 11. At this stage, it is relevant to have a cursory glance at the material evidence of the OP. One Ramesh, who being the Senior Divisional commercial Manager working in the OP no.1 office has stated in his affidavit that, the 1st OP admits that, there was delay in arrival of the train no.12206 at New Delhi on 28-5-2011, the delay was due to operational reasons and the same was not deliberate and delay if any is always caused or subject to vagaries of weather or any other technical reasons. In the instant case, train no.12206 left Dehradun on time. However, enroute when the train reached Tapri station at 0212 hrs the train was held up due to cutting and theft of over head equipment between Nagali station and Talheri Bazurg station at Km no.161/2- 161/8. This was reported by driver of train no.12903, which was also held up. Immediately the technical staffs were pressed into service and the staff attended the OHE line till 4.35 a.m of 28-5-2011 and the line was restored. Consequently, train no.12206 departed Tapri station at 0526 hrs after clearance of train no.12903. Therefore, for the unexpected and the events beyond the control of Railway authorities if any delay is caused in arrival and departure of trains, railways cannot be held responsible. In fact, the disclaimer in this regard is notified by the railways in train at a glance, and on time table boards of each station. The railway rule no.115 is printed in IRCA coaching tariff, so it is quite clear that it is highly impossible to guarantee the arrival and departure of train in or on time as the same is subject to operational reasons. The 1st OP has given reply to the notice of the complainants. Through passengers were informed about the delay caused on account of snapping of over head electrical wire the complainants with a malafide intention to gain unethically for no fault of railways filed the false complaint against the 1st OP. This OP is not responsible or liable for any alleged amount spent by complainants, as the delay was not due to any deliberate act on the part of railways, as there is no deficiency of service on the part of the 1st OP. So the complaint of the complainants be dismissed with cost. 12. Annexure-R1 is a letter of Senior Divisional Operations Manager, New Delhi dated /4/2012 addressed to the Senior DCM, Bangalore stating that, the train no.12206 left DDN at 23:15 hrs on 27-5-2011 and reached TPZ at 02/12 hrs on 28-5-2011 and held up due to OHE wire cutting and theft between NGL-THJ KM no.161/2-161/8 reported by Driver 12903 at 22:56 hrs dated 27-5-2011, held up in block section, OHE staff attended up to 4:35 hrs dated 28-5-2011 train no.12206 departure TPZ at 5:26 hrs after clearance of train no.12903 and OHE block, NDLS arrived about 4.5 hours late. Annexuer-R2 is how to read the table of Indian Railways, wherein, we have found disclaimer heading below portion of said annexure and contents of disclaimer mentioned in the document can be stated as under: “Though all efforts have been made to show the accurate schedule of services in this timetable, it may be noted that these are subject to change without notice, as such these cannot be viewed as apart of the contract between Indian railways and the travelling public. The railway administration disclaims liability for any inconvenience, expenses or damage resulting from errors in this timetable or from delayed/cancelled trains”. And in the annexure-R3 produced by the OP under rule 115 heading as Punctuality of trains, it is stated as under: “Railways do not guarantee the arrival or departure of trains at the times specified in the time tables or will they be accountable for any loss or inconvenience which may arise to passengers from delays or detention to themselves or their luggage”. Looking to the disclaimer notified by the railways and rules 115 printed in IRCA as mentioned above, it is made crystal clear that, it is highly impossible to guarantee the arrival and departure of train in or on time as the same is subject to operational reasons. The OP has produced the complaint filed by RPF regarding theft of OHE and details of the arrests made and joint inspection report of railway officials’ alongwith memo dated 9-1-2013, and these documents of the OP go to reveal that, on 27/28-5-2011, theft of the wire between Nagali station and Talheri Bazurg station had taken place, and OHE line had been cut, and two persons were arrested, and the complaint has been filed against the culprit by RPF inspector. The OP has produced the complaint letter given by R.C.Sharma, ASI/RPF/MOZ dated 29-5-2011, copy of the diary RPF post, arrest report and Joint investigation report along with memo dated 18-4-2013 and these documents go to disclose that on 27/28-5-2011, during the night hours, theft of the wire took place, and two persons were arrested on 29-5-2011, and due to that, the train traffic has been affected, and in this regard, the complaint has been registered on the complaint of the ASI/RPF/MOZ. The said documents of the OP go to show that enroute when the train reached Tapri station at 0212 hrs, the train bearing no.12206 was help up due to cutting and theft of over head equipment between Nagali station and Talheri Bazurg station at Km no.161/2-161/8, and this was reported by driver of train no.12903 which was also held up, and immediately the technical staffs were pressed into service and the staff attended the OHE line till 4.35 a.m. of 28-5-2011 and the line was restored. The train no.12206 departed Tapri station at 5.26 a.m. after clearance of train no.12903. So, for the unexpected and the events beyond the control of railway authorities if any delay is caused in arrival and departure of trains, the railways cannot be held responsible. The oral evidence of the official of OP no.1 with regard to the delay in reaching destination late i.e. New Delhi on 28-5-2011 is countenanced by annexure-R1 to R3, copies of complaint filed by the RPF, details of arrest report, and joint investigation report of railways officials, disclaimer clause and rule 115 of Railways department. Taking the evidence of complainant no.1 and compare the same with the material evidence of the OPs, it is made unambiguously clear that, the OPs have proved with believable oral and documentary evidence that on 28-5-2011 the train no.12206 was held up due to cutting and theft of over head equipment between Nagali station and Talheri Bazurg Station and incident of theft was reported by driver of train no.12903 and immediately the technical staffs attended the OHE line till 4.35 a.m. of 28-5-2011 and the line was resorted and thereafter the train no.12206 departed Tapri station after clearance of train no.12903 and for the unexpected and the events beyond the control of railway authorities if any delay is caused in arrival and departure of trains, railways cannot be held responsible, and the disclaimer in this regard is notified by railways in trains at a glance and on time table boards of each station and in this regard the rule no.115 is printed in IRCA and passengers were informed about the delay caused on account of snapping of over head electrical wire, and accordingly, we are of the view that, the oral and documentary evidence of the OPs is more believable trustworthy and acted upon than the oral and documentary evidence of the complainant, and as such, we hold that, the complainants have utterly failed to prove with believable material evidence that, the OPs are negligent and there is deficiency of service on the part of the OPs in not reaching the New Delhi on time as per schedule. 13. At this stage, the learned counsel for the complainants has relied on the following authority. III (2004) CPJ 739 – (R.Satyanarayanan verus General Manager, Southern Railway) “Consumer Protection Act, 1986 – Section 2 (1) (g) – Railway services – Arrival of train delayed by 7 hours – complainant unable to catch connecting train – No legitimate reason for delay shown- Railway doing service to public by collecting fares- Delay of 7 hours not pardonable delay – Deficiency in service proved- OP liable to pay compensation for mental agony and refund of fare-costs awarded”. 14. We are in total agreement with guidelines of the said citation. So looking to the present case on hand, it is made clear that, the OPs have shown with clear and tangible evidence that, the delay caused in reaching New Delhi on 28-5-2011 was beyond the control of railway authority, because of theft of the electrical wire on the said date and railway department has already notified the disclaimer in the time table and also in each railway station to that effect. So we are of the view that, the fact of the present case on hand and facts and circumstances of the above decision are on different footings, so the said citation quoted by the learned counsel for complainants will not come to rescue of the complainants. So making careful scrutiny of material evidence of both parties, we are of the considered opinion that, the complainants have utterly failed to prove this point satisfactorily so due to paucity of material evidence, we answer this point in a negative. 15. In view of our negative finding on the point no.1, the complainants are not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order. ORDER The complaint of the complainants is hereby dismissed. No order as to cost. Supply free copy of this order to both parties. Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 17th day of May 2013. MEMBER PRESIDENT |
