Kerala

StateCommission

A/15/780

THE GENERAL MANAGER SOUTHERN RAILWAYS - Complainant(s)

Versus

KARTHIKEYAN - Opp.Party(s)

S RENGANATHAN

27 Jun 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 780/15

JUDGMENT DATED : 27.06.2019

 

(Appeal filed against the order in CC.No.189/2013

 on the file of CDRF, Kasaragod)

PRESENT

HON’BLE JUSTICE SRI.K.SURENDRA MOHAN       : PRESIDENT

SRI.T.S.P.MOOSATH                                : JUDICIAL MEMBER

SMT.BEENA KUMARI.A                   : MEMBER

 

APPELLANTS/ OPPOSITE PARTIES

The General Manager, Southern Railway, Park Town, Chennai, Tamil Nadu – 600003

 

                         (BY Adv.Sri.S.Renganathan)

                        

                                                VS

 

RESPONDENTS / COMPLAINANTS

1. Karthikeyan, S/o.A.N.Ashok kumar, Krishna Nilayam, Bank Road, Kasargod, Kerala

 

2. A.N.Ashok kumar, Advocate, Krishna Nilayam, Bank Road, Kasaragod, Kerala

 

(BY Adv.Sri.C.Damodaran)

JUDGMENT

SRI.T.S.P.MOOSATH                : JUDICIAL MEMBER

                The opposite party in CC.No.189/2013 of the Consumer Disputes Redressal Forum, Kasaragod, in short, the district forum has filed the appeal against the order passed by the district forum by which they were directed to refund Rs 780/- and to pay            Rs 80,000/- towards compensation and Rs 5000/- as cost to the complainant.

 

                         2.    The averments contained in the complaint are in brief as follows. The first complainant is a law student and second complainant is his father and first complainant met with an accident during March 2010 and was seriously injured and he suffered permanent disability and as part of the treatment, first complainant got appointment in Ganga Hospital Coimbatore. On his return to Kasaragod, the complainants, availing Talkal facility, booked two tickets in B1 A/c coach of Train No.16627 on 30.04.2013. The A/c was not working and complainants informed the ticket examiner and attendants and they promised to get the A/c working by getting mechanic. But till the end of the journey nothing was done and the promise was not fulfilled. The very purpose of availing Ac and talkal facility was on account of the health condition of the first complainant who suffered serious injuries to his hand, not able to move hand properly and suffered disability and the experience of travel was more hazardous than travelling in a general compartment as there is ventilation in general compartment and A/c coach being closed and complainant felt untold miseries during the journey in summer. Thereafter a registered lawyer notice was sent to the Director, Public Grievance Department of the opposite party on 03.05.2013 and opposite party sent a reply dated 07.05.2013 undertaking to look into the matter and even after a lapse of three months the opposite party has not sent any reply. Hence the complaint is filed for necessary reliefs.

 

                3.     Opposite party filed version raising the following contentions. Opposite party denied all the allegations made against them by the complainant. The opposite party submitted that in the 3^rd A/c coach attached to the west coast Express train No.16627 AC system was fully functioning and there was no failure of A/C system in the coach as alleged. The passengers of third AC coach had not complained of the failure of AC system either to the AC coach attendant or to the ticket examiner in charge of the said coach. It is further submitted that the standing instruction is that in case of non functioning of the AC in Coaches, ticket examiner in change of the coach has to make an endorsement in the tickets of all the passengers in the AC coaches stating that the AC system in the coach was not functioning from station to station on such and such hours and date. In the tickets produced by the complainants there is no such endorsement. It is also submitted that the in the lawyer notice the date of travel is stated as 29.04.2013. The Ac coach is provided with centralized AC system and the AC system failed means the failure of AC system in the entire coach itself. If the AC system was not functioning throughout the journey period surprisingly none of the other passenger travelled in the said AC coach complained to the ticket examiner or the mechanic and the statement of complainant that the complainants complained of the nonfunctioning of AC system to the AC mechanic and ticket examiner is totally false. The opposite party further submitted that as per the provisions of the refund of fare rules in case of failure of AC system the difference in the AC fare and ordinary sleeper coach fare is to be refunded and not the entire AC ticker fare is to be refunded as claimed by the complainants. Hence the compliant is liable to be dismissed.

                4.     PW1 was examined and Exts.A1 to A3 were marked on the side of the complainants and DWs 1 & 2 were examined on the side of the opposite party. Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the opposite party has preferred the present appeal.

                5.     Heard both sides. Perused the records.

                6.     There is no dispute to the fact that the complainants / respondents booked tickets in the AC coach and they performed the journey in the train. It is the case of the complainants that they availed talkal facility and booked two tickets in the AC coach only because the first complainant was under treatment for the injuries sustained by him to his hand due to an accident and he was not in a position to travel in an ordinary coach because of his illness. It is alleged by the complainants that the AC was not working and they informed the ticket examiner and he promised to get the AC working by availing the service of the mechanic. But till the end of the journey nothing was done and the promise was not fulfilled. It is alleged by the complainants that due to the negligence of the opposite party they suffered much both physically and mentally, since in AC compartment there is no ordinary flow of air. It is contended by the opposite party that there was no failure of AC on that day and in support of their contention they mainly relied on the fact that no other passengers complained the same before them. As found by the district forum because of the fact that no other passenger complained that the AC was not working, it can be found that the allegation of the complainants is false, since it is for the passengers to decide whether they have to make complaint or not. Some of the passengers may not be aware whether they can make any complaint if the journey is uncomfortable one or some of them may ignore the same. That does not mean that the AC was working on that day. Further, even if any other passenger filed compliant before them it will be with the opposite party. Ext.A2 shows that the second complainant issued notice to the Director, Public Grievance, Additional General Manager, Southern Railway, Chennai claiming refund of the ticket charge and compensation and Ext.A3 shows that he had directed the ADRM/PGT to look into the matter and gave reply to the party directly. Admittedly they have not looked into the matter and they have not given any information to the complainants. As found by the district forum there is nothing to disbelieve the testimony of PW1 that the AC was not working and due to that himself and his son, the first plaintiff suffered much, both physically and mentally. It is to be noted that PW1 was not cross examined by the counsel for the opposite party and the testimony of PW1 stands unchallenged. The opposite party who has the list of passengers, who travelled in the same train along with the complainants, could have cited any of them as witness and could have examined any of them to disprove the case of the complainants. DW1 deposed that before starting the journey of the train and after reaching the destination, the technicians would inspect the AC and other electrical fittings of each of the coaches and sometimes those will be checked when the train is halted in some station during the journey and those matters will be entered into the concerned registers. The opposite party could have produced the concerned registers or examined any person who is alleged to have conducted the checking of AC in the coaches on that particular day. Considering all these facts the district forum found that there was deficiency of service on the part of the opposite party and the complainants are entitled to get compensation from the opposite party. We consider that there is no reason / ground to interfere with the finding of the district forum.

 

                7.     The district forum directed the opposite party to refund Rs 780/-, half of the train fare and pay Rs 80,000/- towards compensation for the mental agony and sufferings caused to the complainants. The counsel for the appellant submitted that the amount of compensation ordered is on the higher side and that may be reduced. Considering the facts and circumstances of the case we consider that the amount of compensation ordered is on the higher side and it has to be reduced. We find it just and reasonable to direct the opposite party to pay an amount of Rs 40,000/- as compensation to the complainants. The cost of Rs 5000/- ordered is just and reasonable and hence no interference is called for regarding that. The order passed by the district forum is modified, as stated above.

 

                In the result, the appeal is partly allowed. While upholding the direction passed by the district forum to refund       Rs 780/- being the half train fare and Rs 5000/- as costs to the complainants, we modify the order regarding the compensation passed by the district forum by reducing the amount to Rs 40,000/-. If the amount is not paid within one month from the date of a copy of receipt of this judgement the amount of compensation ordered will be carry interest at the rate of 8% per annum.

               

                Parties are directed to suffer their respective costs.

 

                The respondents / complainants are permitted to obtain release of the amount of Rs 25,000/- deposited by the appellant at the time of filing of the appeal, on filing proper application to be adjusted / credited towards the amount ordered as above.

 

JUSTICE K.SURENDRA MOHAN     : PRESIDENT

 

 

T.S.P.MOOSATH      : JUDICIAL MEMBER

 

 

BEENA KUMARI.A           : MEMBER

 

 

 

 

 

Be/

 

 

 

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

VAZHUTHACADU

THIRUVANANTHAPURAM

 

APPEAL NUMBER 780/15

JUDGMENT DATED :27.06.2019