Sri. Ashok Kumar J.Dhole<br /> President,<br /> <br /> 1. The Complainant Sri.B.R.Manjunath is a Journalist aged about 39 years, and filed this Complaint under section 12 of the Consumer Protection Act, 1986 against the K.S.R.T.C. represented by Divisional Controller (1st Opposite Party) and Depot Manager (2nd Opposite Party) on the ground of deficiency in service claiming refund of Rs.46/- apart from damages of Rs.30,000/- and cost.<br /> <br /> 2. Notices were duly served on both Opposite Parties to appear and Version and Affidavit. Both Opposite Parties contested the matters seriously. The Complainant has filed his affidavit in support of his Complaint and produced the original journey ticket. The Complainant has examined as CW.1. The Opposite Parties have produced Xerox copies of the registration certificate of the vehicles and also log-book of vehicle No.KA-09-F-3279. The Opposite Parties driver named Shankappa is examined as RW.1. Heard the Complainant in person and the Learned Counsel for both Opposite Parties.<br /> <br /> 3. The facts which are not disputed by both parties can be briefly summarized is as hereunder:<br /> <br /> 4. On 15.04.2006, the Complainant under took journey from Mysore to Mangalore by a “SEMI DELUXE” bus bearing Registration No.KA-09-F-3279. The Complainant paid an amount of Rs.167/- towards the bus fare for such Semi Deluxe vehicle and it left Mysore Bus Stand at about 6.00 a.m. There is also no dispute that when this bus reached near Bilikere, the driver named Shankappa noticed that there was mechanical defect. The leaver pin of the gearbox was broken. There was also no dispute that driver Shankappa gave information about such problem to 2nd Opposite Party on a Mobile Phone and a rescue bus was sent by 2nd Opposite Party to the place where the vehicle was parked. There is also no dispute that driver Shankappa carried all passengers in the replaced bus to Mangalore. There is also no dispute that driver Shankappa had taken the replaced bus to Hunsur Depot to check-up the operation of the breaks. There is also no dispute that the Complainant along with all other passengers reached Mangalore safely.<br /> <br /> 5. It is the case of the Complainant that the Opposite Parties 1 & 2 were negligent and they have not provided a proper bus knowing full-well that the bus as to cover distance from Mysore to Gokarna for a period of 13 hours. It is further contended that the bus was scheduled to reach Mangalore at 1.30 p.m, but on the date of incident, it reached Mangalore at 3.45 p.m. Due to such delay, the Complainant could not attend his work. It is also contended that the replaced was an ordinary bus, the Complainant anticipated danger to his life during his traveled in ghat section. All these acts, amount to deficiency in service and prayed for allowing this Complaint. <br /> <br /> 6. It is the contention of the Opposite Party that Semi Deluxe Bus No.KA-09-F-3279 was a new vehicle which was registered on 30.05.2005. It had hardly covered a distance of 1.6 lakhs kilometers. There was no negligence on the part of the Opposite Parties. Similarly, the replaced bus bearing No.KA-09-F-3290 was also a new vehicle which was registered on 30.06.2006. This vehicle had also covered hardly distance of 1.6 lakhs kilometers. Hence, the contention of the Complainant is that the Opposite Parties have provided old buses for a long journey is not correct.<br /> 7. It is also contended by the Opposite Parties that immediately after the breakdown two buses came from Mysore and proceeded towards Mangalore. The Complainant did not opt to travel by such vehicles, even though the Opposite Parties provided such accommodation. There was no inordinate delay or any kind of negligence on the part of the Opposite Parties. It is also admitted that driver Shankappa had taken the vehicle to Hunsur Bus Depot only to confirm the proper functioning of the breaks. There was no unreasonable delay. The damages claimed by the Complainants are imaginary and prayed for dismissing the Complaint with costs. <br /> <br /> 8. Points for our consideration are as under:-<br /> 1. Whether the Complainant is entitled to claim damages on the ground of late departure or late arrival of the bus and whether such delay can be called as “deficiency in service”?<br /> <br /> 2. Whether the Opposite Parties 1 & 2 have proved that the replaced bus bearing No.KA-09-F-3290 was a “Semi Deluxe Bus”?<br /> <br /> 3. Whether the Complainant is entitled for refund of the excess fare and the cost?<br /> <br /> 9. Our findings on the above points are as under:-<br /> <br /> 1. Point No.1:- Negative.<br /> 2. Points No.2:- Negative.<br /> 3. Point No.3:- As per final Order.<br /> <br /> REASONS<br /> <br /> 10. POINT NO.1:- In the case of Unit Trust of India –Vs- Mrs.Kavitha Guptha reported in II 1997(1) CPR page-70 it is observed, “if there is deficiency in service, often Consumers tend to try to capitalize on it by assuming hypothetical situations to inflate the claim of an exaggerated compensation”. In this case, the Complainant has not disclosed the nature of work. He has not disclosed, what damage was suffered by him as he could not reach at 1.30 noon. Similarly his contention that he anticipated danger to his life during travel in ghat section goes contrary to his contention that the driver Shankappa had wasted precious time in getting the breaks checked at Hunsur. Even assuming for the sake of argument, that there was delay of 2 hours, on the date of incident, we have to find out, whether such claims is maintainable on the ground of deficiency in service?<br /> <br /> 11. In the case of Commercial Manager Railway –Vs- P.Raghunathan reported in 2002(II) CPR page-200, the Hon’ble State Commission of Kerala has observed that unless there is positive proof of dereliction of duty constituting negligence, mere delay in running of train per-se, cannot constitute either “deficiency or negligence”. The Opposite Parties have produced Xerox copies of the registration books of both vehicles, which is sufficient to come to conclusion that these vehicles were registered in the month of May and June 2005, and they were new vehicles. It is not the case of the Complainant that the damage to the leaver pin of gearbox was due to negligent act of the Driver or 2nd Opposite Party. It is a mere accident, which may occur to any person, at any stage, and even to a new vehicle. The driver Shankappa had taken proper care in stopping the bus immediately and sending information to 2nd Opposite Party with a request to send alternative bus. Hence, the delay caused due to such failure and arrival of the alternative bus, cannot be attributed to any negligent act of the Opposite Parties, there is no deficiency in service on the basis of such contention. For the above reasons, point No.1 answered in negative. <br /> <br /> 12. POINTS NO.2 & 3: The second contention of the Complainant is that he paid an amount of Rs.167/- to have comfortable journey by “Semi Deluxe Bus”. The Complainant has produced the Computerised Ticket No.023680 for having paid Rs.167/-. The Opposite Party has produced Xerox copy of the log-book of the vehicle No.KA-09-F-3279. In this log-book, it is shown in column number 9 that it was a “Semi Deluxe Bus”, having sitting capacity of 47 passengers. The Opposite Party has failed to produce the Xerox copy of the log-book of the replaced bus bearing vehicle No.KA-09-F-3290. It is the contention of the Complainant that it was not a Semi Deluxe Bus, but it was an Ordinary Bus. Driver Shankappa (RW.1) though states during Cross-examination that replaced bus was also Semi Deluxe Bus, he further admits that it was “Express Bus”, the non-production of the log-book of the replaced bus, it’s sitting capacity etc; we have no hesitation to come to conclusion that the Opposite Party has failed to establish that the replaced bus was having similar comforts and facilities which were provided in the original “Semi Deluxe Bus”. The Opposite Parties should have taken the care to refund the excess fare which was collected from the passengers. It is the case of the Complainant that the fare of Ordinary Express Bus is only Rs.121/- from Mysore to Mangalore. We accept this contention of the Complainant and come to conclusion that the Complainant is entitled for refund of Rs.46/-.<br /> <br /> 13. It is important to note that the Complainant being a Journalist had taken pain for filing this Complaint and prosecuting the same, though the matter was negligible. Having regard to this fact, we award cost of Rs.300=00. So, points No.2 and 3 are answered, accordingly, and we proceed to pass the following Order.<br /> <br /> ORDER<br /> <br /> 1. Complaint is partly allowed.<br /> 2. The Opposite Parties 1 & 2 are directed to refund an amount of Rs.46/- (Rupees forty six) to the Complainant along with cost of Rs.300=00 within a period of one month from the date of receipt of this Order.<br /> 3. The amount be sent to the address of the Complainant through account payee D.D. by R.P.A.D. <br /> 4. Give a copy of this order to both parties according to Rules.<br />