BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. P. SUDHIR : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C. No. 335/2013 Filed on 03.08.2013
ORDER DATED: 31.07.2015
Complainant:
S. Sreekumar, S/o Sasidharan Pillai, residing at ‘Omana Mandiram’, Kallelibhagom P.O, Karunagapally, Kollam District.
(By Adv. G. Jayakumar)
Opposite parties:
- M/s Southern Railway represented by its Divisional Railway Manager, Railway Divisional Office, Thycaud, Thiruvananthapuram.
(By Adv. S. Renganathan)
- J. Selvan, Deputy Chief Ticket Inspector, Southern Railway, Nagarcoil, Thiruvananthapuram Division.
(By Adv. P. Ayyappan Pillai)
This case having been heard on 09.06.2015, the Forum on 31.07.2015 delivered the following:
ORDER
SRI. P. SUDHIR: PRESIDENT
Complainant’s case is that complainant is a resident of Karunagappally having cashew export business and cashew factory at Kundapura near Mangalore. In connection with his business at Kundapura he had been a frequent traveler with the 1st opposite party, Southern Railway in between Kollam and Kundapura. For convenience complainant used to travel in the A/C coach of the 1st opposite party. The 2nd opposite party is an employee of the Southern Railway being its Deputy Chief Ticket Inspector. On 24.04.2012, the complainant boarded the Train No. 16336, Gandhi Dham Express, from Kollam to Kundapura. Due to the heavy traffic block he happened to be late in reaching the station and as such he could not collect his ticket before boarding the train at Kollam. As his travel was so urgent the complainant boarded the train without purchasing the ticket on the anticipation that the ticket could be collected from the Train Ticket Examiner on duty. Complainant boarded the A/C Coach of the Train No. 16336, Gandhi Dham Express wherein the 2nd opposite party was performing his official responsibility as the Train Ticket Examiner. Immediately on entering the train, complainant contacted the 2nd opposite party and intimated him on the inability to purchase the ticket and as such requested the 2nd opposite party to issue a ticket on board. The 2nd opposite party directed the complainant to pay Rs. 1,227/- as the ticket charge, issued the complainant a receipt and allotted him the seat bearing No. A1/45. As the complainant had no change with him, he gave three 500 rupee notes coming to a total of Rs. 1,500/- to the 2nd opposite party. Then upon the 2nd opposite party also was not possessing sufficient change to return the balance. However, the complainant entrusted the three 500 rupee notes to the 2nd opposite party. 2nd opposite party returned only Rs. 100/- what he had as change with him and assured the balance to be paid after sometime. While the talks were going on between the complainant and the 2nd opposite party, the 2nd opposite party happened to pay Rs. 14/- to the bearer of pantry car and promised to give the balance amount of Rs. 159/- after sometime, endorsing the balance payable over the receipt issued. On reaching Shornur complainant searched the 2nd opposite party for collecting the balance amount. But he was not seen and on enquiry with the A/C attendant on duty it was told that the 2nd opposite party dropped at Shornur and that the new T.T.E has taken the charge. As the balance amount was not paid by the T.T.E, the complainant submitted a petition dated 05.06.2012 before the General Manager, Southern Railway, Palakkat Division explaining the incident and with a request to return the balance amount payable to the complainant. Finding no response from the part of the General Manager, another request dated 11.08.2012 was submitted before the Divisional Commercial Manager, Southern Railway. No positive action was seen taken upon that request. Aggrieved upon the attitude from the part of the officials of Southern Railway, complainant was contacting various officials of Southern Railway for collecting the amount. While so, the Complaint Inspector of the Southern Railway directed the complainant to be present in his office for collecting the amount. On reaching his office at Thiruvananthapuram, Sri. Baiju, the Complaint Inspector, told the complainant that the procedure for payment is under progress and directed the complainant to Sri. Shankara Subramoniam, the Assistant Commercial Manager of Southern Railway who again directed the complainant to Sri. George, the Divisional Commercial Manager. The Divisional Commercial Manager hearing the complainant promised that the amount will be paid to the complainant by virtue of Pay Order. Promise was not properly performed. Again on enquiring with the progress in refund, the Complaint Inspector for Southern Railway, Trivandrum Division Mr. Baiju intimated the complainant that the payment has been stopped by the Senior Divisional Commercial Manager. As such complainant visited the Senior Divisional Commercial Manager and enquired on the reason for stopping the payment. His attitude towards the complainant was very harsh and told the complainant that the amount cannot be returned. However the Senior Divisional Commercial Manager was not ready to reveal the reasons for denial of refund. Hence complainant visited the Additional Divisional Railway Manager who is also the Chairman of the Public Grievance Committee and presented his complaint. The Additional Divisional Railway Manager was very generous and in the presence of the complainant enquired the matter over phone with some of his subordinates and assured that the amount will be paid without any further delay. Till day 1st opposite party has not taken any positive action to return the balance payable amount. The amount is still retained with the 1st opposite party. There is no reasonability in retaining the balance amount due to the complainant as no illegal act has been committed from his part. The complainant got highly aggrieved for putting him into loss for no fault of him and as such took it as a matter of prestige to collect the balance amount from the 1st opposite party. On 28.06.2013, the complainant has caused to issue an advocate notice to the 1st opposite party, registered with acknowledgement due, directing the 1st opposite party to take appropriate steps to return the retained balance amount of Rs. 159/- within 15 days from the date of receipt of the notice failing which it was intimated that appropriate legal actions will be taken against the railway authorities on the loss sustained to the complainant. 1st opposite party has not cared to return the balance amount to the complainant, nor even shown the courtesy to make any reply to the notice received. From the acts of the 1st opposite party complainant realized that they are willfully trying to defraud the complainant. There is willful negligence and deficiency of service from the part of the opposite parties. The 1st opposite party is vicariously liable for the acts of the 2nd opposite party. The complainant is fully entitled to recover the balance amount of Rs. 159/-from the opposite parties along with the loss sustained against the travel expenses, pain, mental agony, sufferings and cost in filing this complaint. Complainant approached this Forum for the reliefs (1) To pass an order directing the opposite parties to pay Rs. 159/- which has been illegally retained in the account of the 1st opposite party. (2) To direct the opposite parties to pay an amount of Rs. 50,000/- towards the travel expense, mental agony, pain, hardships and sufferings occurred to the complainant. (3) To direct the opposite parties to pay an amount of Rs. 25,000/- towards the cost of proceedings.
Notice sent to opposite parties. Opposite parties appeared and filed version. The contention taken by 1st opposite party in the version is that there was no deficiency, negligence or lapse on the part of the 1st opposite party. This opposite party had acted only according to the rules made by the government upon which the service was offered to the party. Complainant is not a consumer of these opposite parties as envisaged in the Consumer Protection Act 1986. The complainant had no valid ticket to travel by Train No. 16336 Express of 24.04.2012. As such, it is only the negligence or deficiency on the part of the complainant in not taking a ticket and hence the complainant cannot be considered as a consumer, as envisaged in the Consumer Protection Act. This 1st opposite party denies that the Express Fare Ticket produced by the complainant belongs to the complainant nor issued to him. In Excess Fare Tickets, the name of the party to whom it is issued is recorded and his signature obtained. As such, the excess fare ticket produced before this Forum could not be linked to the complainant. He had no travelling ticket with him either. As such he may not be considered as a consumer in this particular case. The complaint is not maintainable before this Forum and be pleased to dismiss the same with costs to 1st opposite party. Complainant did not take a ticket at all and allegedly boarded Train No. 16336 Express from Kollan Junction station and was subsequently penalized in the train. In the second case, the case was examined and it was found that the demand for refund of this case was closely connected with a vigilance case, following a vigilance check against the same Ticket Examiner on duty in the same train, who had collected the railway dues allegedly from the complainant and not returned the balance amount. The complainant’s version in his first complaint dated 05.06.2012 is that he had no change with him and had given Rs. 1,500/- to the Ticket Examiner against the fare and penalty of Rs. 1,227/-. One hundred rupees was returned by the Ticket Examiner and assured him to provide the balance amount before the train reached Shornur station. The balance was noted on the other side of the Excess Fare Ticket. At Aluva and Trichur he had enquired about the ticket examiner but he was found to be very busy at Aluva and was engaged in a verbal duel with two others near the entrance of his Coach. At Shornur, he could not find anyone and another Ticket Examiner had come from Shornur but nobody cared to refund the amount. This complaint was made at Palghat Division dated 06.06.2013 and was forwarded to the 1st opposite party on 14.06.2013. The 2nd opposite party had submitted an explanation to the Senior Divisional Commercial Manager dated 25.04.2013 received on 27.04.2013, stating that two people came to him after Angamali (AFK) in AS2 Coach and they did not allow him to move from the seat and return the balance cash to some of the passengers. And finally they had recorded an amount of Rs. 159/- as excess cash and forcefully remitted the same at Shornur Junction station, as per his version. At Shornur junction, the vigilance got the 2nd opposite party’s signature in a report prepared by them, under duress, according to 2nd opposite party. Among other allegations, he had expressed his concern that many passengers may complain regarding the non-payment of the balance amount. 1st opposite party suspects collusion between the complainant and the 2nd opposite party in order to get out of the vigilance case. In this backdrop, complainant’s complaint warranted detailed enquiry and verification, as a Vigilance case had been registered against the same ticket examiner, the 2nd opposite party. From the statements of the concerned Vigilance Inspectors, it is clear that the 2nd opposite party had possessed excess cash than the rightful collection from the passengers and his personal cash, which needed to be declared before the commencement of the duty. Further he had gone to the extent of assaulting an officer, a vigilance officer on duty, and injured him, and caused illegal hindrance in performing his duty. The vigilance team had to seek the help of the Railway Protection Force at Shoranur Junction to get the check completed. A witness was also arranged and in his presence the 2nd opposite party has declared his personal cash as Rs. 100/-, excess cash as Rs. 159/- only and railway cash as Rs. 13,431/- only. The 2nd opposite party did not make any mention at all, in the remarks column of the Cash Check Memo about the nature or reason about the possession of the excess cash he was holding. Had it been the complainant’s money he could have stated then and there itself or in the train. Had it been the money payable to the complainant, the 2nd opposite party need not have run all the way to the toilet and assault an inspecting official. With his crystal clear memory, as exhibited in the latter stage of the vigilance case, he could have made the report then and there. The statement of the 2nd opposite party to the effect that he was afraid that public complaint would come against him, for non-payment of balance amount, as the Vigilance department had forced him to remit the cash as stated by 2nd opposite party, following a vigilance check on 24.04.2013, the vigilance department had to be consulted over this issue, as the excess cash was found by them. Since the amount remitted by the 2nd opposite party was public money, and since a possibility was expressed by the 2nd opposite party himself that public complaints may be registered, it is likely that other public complaints may also come, other than this one. As such it could be refunded to any particular person only after the outcome of the connected vigilance enquiry. Otherwise, it may so happen that the public exchequer’s funds are inappropriately diverted. Hence, it is quintessential that the report the Vigilance Enquiry is received before refund is made. The 2nd opposite party has also come up with another explanation on 27.07.2012 vide his letter addressed to Senior Divisional Commercial Manager, that he remembered a party boarded without ticket from Kollam Junction on 24.04.2012 in Train No. 16336 Express and was excess charged for Rs. 1,227/- and a balance of only Rs. 100/- was refunded as immediate balance and Rs. 175/- was further due to him and this was marked on the other side of the Excess Fare Ticket. According to the 2nd opposite party, he had paid Rs. 14/- to the bearer for two coffee and one tea bought by the complainant. But he forgot to record this amount on the reverse side of the Excess Fare Ticket. The 2nd opposite party’s explanation dated 27.07.2012 is only an afterthought. The story turned more dramatic, with the complainant visiting the 1st opposite party’s office again, purely at his free will and convenience, and not invited or directed by the 1st opposite party or any one at his office, just to plant a letter dated 09.08.2013, that he had forgotten to say some more matter related to this case and repeated what the 2nd opposite party had said in his letter dated 27.07.2012. Again, on 11.08.2013, another letter was received from the complainant in which he indirectly admits that the refund in the second case was delayed for valid reasons, though he has narrated it as ‘simple’ reasons. By this statement, it is crystal clear that he was informed by the Complaints Inspector and the then Assistant Commercial Manager that his second case could be settled only after the enquiry report from the Vigilance Organization is received. The allegation that the complainant was not provided with the balance amount by the 2nd opposite party is an afterthought and admitted by the 2nd opposite party. However this act was strictly against the rules in force and the 2nd opposite party was legally bound to pay the balance amount due to each passenger. If at all this amount was detained, the sole responsibility for this alleged act has to be borne by the 2nd opposite party and no vicarious responsibility is due to the 1st opposite party for the illegal acts done by the 2nd opposite party against the directions and rules in force. In other words, by admitting the illegal act, the 2nd opposite party indirectly justifies the findings of the Vigilance Department that illegal, excess money was found with the 2nd opposite party, while performing his duty by Train No. 16336 Express of 24.04.2012. That the 2nd opposite party had given a cash check memo No. 12607 at 2250 Hrs on 22.04.2012 in which the denomination of the cash he had possessed, declared as below: Rs. 1000x4=4000, Rs. 500x12 = 6000, Rs. 100 x 35= 3500, Rs. 50 x 1 = 50, Rs. 20 x 1=20, Rs. 10 x 2= 20. This clearly shows that 2nd opposite party had enough small denomination currency available with him to provide the balance amount with him. If at all, he had failed to provide the balance amount to any one, this only proves his lack of integrity and justifies the vigilance angle in this case. It may also be noted that the 2nd opposite party did not provide any reason for holding excess cash with him, even when there was a specific column in the Cash Check Memo. He had only noted ‘Rs. 159/-‘ in the column meant for recording ‘reasons’. This also raises serious doubts on the authenticity of this claim by the complainant and support of the 2nd opposite party. Had it been otherwise, he would have stated the reason for holding excess cash, as payable to the complainant. There are enough reasons to suspect the collusion between the complainant and the 2nd opposite party to set up a case of defence for the possession of excess cash with the 2nd opposite party to save him from the charges of possession of excess cash in violation of the extant rules. It is also evident that the 2nd opposite party did not pay the entire amount due to the passenger, the complainant, even when excess money was available with him. When both the 2nd opposite party and the complainant, agree that Rs. 14/- had been paid by the ticket examiner to the bearer selling coffee and tea, it is not known what prevented the ticket examiner from paying the same amount to the complainant rather than resorting to ‘barter system’ to pay back to a customer. With the evidence contained in the Cash Check Memo he could have paid the balance Rs. 159/- to the complainant, with one hundred rupee note, one fifty rupee note and one ten rupee note. He only needed to get the balance amount of Re.1/- from the complainant, duly getting the change from the bearer. It is not logical to think that the 2nd opposite party resorted to pay the balance amount in installments, especially when he had the sufficiency change with him. The 2nd opposite party had never surrendered the cash with him to the Vigilance department, in the train. In fact he had assaulted a vigilance inspector on duty and resisted the vigilance check in the train. As such he cannot argue that Vigilance department had prevented him from returning the balance amount to the complainant. Consumer case is only a poly made by the 2nd opposite party in collusion with the complainant to extricate himself from the charges under enquiry, conducted by the Vigilance department, by resorting to a false claim made through the complainant. It is quite intriguing to note that the complainant who could have claimed the excess amount in the presence of the vigilance officials did not resort to that or made any complaints, but had chosen to do so at this belated stage. As such, any alleged difficulty caused to him is only self made and not a resultant of any action of the opposite parties. This opposite party is duty bound to act by rules in force and hence no deficiency was there in any of their acts at all. Complainant is driven by undue monetary intentions motivated by other intentions and if such complaints are entertained it would drain the national exchequer in no time. The entertainment of such claims have a cascading effect on the ongoing vigilance case against Sri. J. Selvan, the 2nd opposite party. In fact the 2nd opposite party has colluded with the complainant. The 2nd opposite party will be the real beneficiary by way of charges becoming weak, in the vigilance case, if the complainant is paid with the compensation/refund. This is the ultimate intention of the complainant in guise.
2nd opposite party filed version stating that 2nd opposite party was rostered for duty to man Five Coaches of 16636 Gandhi Dham Express of 24.04.2012 from Nagercoil upto Shoranur. On the way at Alwaye Station 2nd opposite party was subjected to a vigilance check conducted by railways. Once of the Vigilance Inspectors had asked for the chart and he had gone for re-check the passengers on the coaches. The other Vigilance Inspector did not allow him to move from the place he was standing or to talk to anybody. Even though 2nd opposite party had informed the Vigilance Inspector that balance is due to passengers he did not allow him to trace the passenger to handover the balance or to talk to anybody. This incident only prevented the 2nd opposite party from handing over the balance due to the complainant before alighting at Shoranur. The above said high handedness of the Vigilance Inspectors only prevented the 2nd opposite party from handing over the balance amount which resulted into a public complaint. Regarding the narration in paras 7 to 9, 2nd opposite party was not competent to give any reply as he was not personally involved in those facts. However 2nd opposite party remembers that Senior Divisional Commercial Manager, Thiruvananthapuram Division had asked for his remarks on receipt of a public complaint that balance amount is due to a passenger on an excess fare ticket issued by him on 24.04.2012. In his written reply on 27.07.2012, 2nd opposite party informed him that Rs. 159/- remitted vide EFT No. 0305535 dated 24.04.2012 is actually the amount due as balance to the passenger and the same could be refunded to the complainant. 2nd opposite party could explain his conduct on the day in the train and how he was prevented from handing over the balance amount to the complainant before alighting at Shoranur Junction. As admitted in the complaint, neither the complainant nor the 2nd opposite party had sufficient change to finish the transaction on issuing an excess fare ticket to facilitate his journey, 2nd opposite party had endorsed the balance amount due to him on the back of the EFT after paying Rs. 100/- on request from the complainant for his immediate needs and 2nd opposite party reminded him to collect the balance from him before the train reaches Shoranur as he has to alight there. Further again when the tea vendor asked for exact change of Rs. 14/- for the purchase from the complainant, 2nd opposite party came to his rescue paying the amount. As 2nd opposite party has to check all the five coaches and there was unusually heavy rush in the compartment, he could not meet the complainant or give him the balance amount. Meanwhile reaching Alwaye, 2nd opposite party was subjected to a Vigilance Check of Southern Railway and due to the high handedness of Vigilance Inspector, neither the 2nd opposite party was allowed to move from the place or talk to anybody even though he pleaded that balance is due to passengers. Accompanied by the Vigilance Inspectors 2nd opposite party alighted at Shoranur and he was subjected to a body check in presence of RPF staff and Deputy Station Manager (commercial). A cash cheque memo is prepared and the excess cash of Rs. 159/- is remitted to Railways under EFT No. 0305535. All the proceedings were drawn under duress. On reaching headquarters at Nagercoil, 2nd opposite party had submitted a report to Sr. Commercial Manager/Trivandrum Division on 25.04.2002 itself through Station Manager/Nagercoil and the same is received by him on 27.04.2012. It is usual practice that on completion of duty when tallying all the excess fare tickets with physical cash if any difference, shortage will be made good by the employee and if any excess is found it will also be remitted to Railways along with other government cash, so that if any claim arises it could be settled in the divisional level.
Points raised for consideration are:-
- Whether the complainant is a consumer as per Consumer Protection Act?
- Whether there is deficiency of service on the part of opposite parties?
- Whether the complainant is entitled for the compensation and costs as claimed for?
Complainant filed chief examination of affidavit and Exts. P1 to P9 marked. Complainant was cross examined by opposite parties 1 & 2. In cross by 1st opposite party complainant deposed that “താങ്കൾ ticket എടുക്കാതെയാണ് 24.04.2012-ൽ train-ൽ കയറിയത് (Q) അതെ (A) സ്ഥിരമായി Train യാത്ര ചെയ്യുന്ന വ്യക്തിയാണല്ലോ(Q) അതെ (A) Ext. P1 shown to the witness ഇതിൽ താങ്കളുടെ പേരോ signature ഉണ്ടോ (Q) അതിൽ കാണുന്നില്ല (A) Excess fare ticket issue ചെയ്യുമ്പോൾ അത് ആർക്കാണ് issue ചെയ്യുന്നത്. അയാളുടെ പേരും signature-ഉം അതിൽ ഉണ്ടാകണമെന്നാണ് rule (Q) അതെനിക്കറിയില്ല (A) താങ്കൾ A/C Compartment -ൽ കയറി എത്ര സമയം കഴിഞ്ഞാണ് 2nd opposite party –യെ കാണുന്നത്(Q) ഒരു ½ an hour –നുള്ളിൽ ticket ഇല്ലാത്തതിനാൽ എത്രയും നേരത്തെ TT യെ കണ്ടു (A) Ticket charge എത്ര രൂപയായിരുന്നു (Q) 1227 രൂപയാണ് (A) എത്രയാണ് TT-യുടെ കൈയിൽ കൊടുത്തത് (Q) 1500/- രൂപ (A) ബാക്കി തന്നില്ല എന്നാണ് താങ്കളുടെ case (Q) അതെ (A) എന്തു കൊണ്ട് തന്നില്ല (Q) ബാക്കി ചോദിച്ചപ്പോൾ TT യുടെ കൈയിൽ ചില്ലറയില്ല എന്നു പറഞ്ഞു. എന്റെ കൈയിൽ വേറെ 500-ൽ കുറഞ്ഞ ഇല്ലാത്തതുകൊണ്ട് 100/- രൂപ വാങ്ങി balance ticket-ന്റെ back-ൽ എഴുതി വാങ്ങി (Q) Ext. P1 shown to the witness ഇതിന്റെ പുറകിൽ മേൽ പറഞ്ഞതു പോലെ എഴുതിയത് കാണിച്ചു തരാമോ (Q) ഇതിലിൽ ഇല്ല. Original ഉണ്ട്. Original railway-യ്ക്ക് submit ചെയ്തിട്ടുണ്ട് (A) Railway-യ്ക്ക് submit ചെയ്യുന്നതിന് മുമ്പ് എടുത്ത copy-യാണ് താങ്കൾ ഹാജരാക്കിയത് എന്ന് താങ്കൾ പറയുന്നത് (Q) അതെ (A) original-ന്റെ മറുവശം എടുക്കാത്തതെന്താണ് (Q) മറന്നു പോയതായിരിക്കും (A) താങ്കൾ അന്യായത്തിൽ 14/- രൂപ pantry car bearer-ക്ക് കൊടുത്തു എന്നു പറയുന്നു. ആരാണ് കൊടുത്തത് (Q) എന്റെ കൈയിൽ ചില്ലറയില്ലാത്തതിനാൽ TT യാണ് കൊടുത്തത്(A) എന്തിനു വേണ്ടി കൊടുത്തു (Q) ഞാൻ ചായ വാങ്ങിയതിനു കൊടുത്തു (A) എത്ര രൂപയാണ് ചായയ്ക്ക് എന്ന് അറിയാമോ (Q) ഇല്ല (A) എത്ര ചായ കുടിച്ചു (Q) രണ്ട് coffee-യും ഒരു ചായയും കുടിച്ചു (A) ഈ മൂന്നിന്റെയും വിലയാണ് TTR താങ്കൾക്ക് വേണ്ടി നൽകിയ 14/- രൂപ (Q) അതെ (A) 24.04.2012 കാലഘട്ടത്തിൽ ഒരു coffee-യ്ക്ക് 7 രൂപയും ചായ 5 രൂപയുമാണ് train-ൽ ഈടാക്കിയിരുന്നത് എന്നു പറയുന്നു (Q) ചായ തന്ന ആൾ ചോദിച്ച 14 രൂപ കൊടുത്തു അല്ലാതെ വില എനിക്കറിയില്ല (Q) ഈ രണ്ട് ചായയും ഒരു coffeeയും താങ്കളും കൂടെയുണ്ടായിരുന്ന രണ്ടു പേരുമാണ് കുടിച്ചത്(Q) അതെ (A) കൂടെയുണ്ടായിരുന്ന രണ്ടു പേരുടെ പേരും മേൽ വിലാസവും ഇപ്പോൾ പറയാമോ (Q) ഓർക്കുന്നില്ല (A) താങ്കൾ അവരിൽ ഒരാളെയെങ്കിലും ഈ Court-ൽ വിസ്തരിക്കാൻ തയ്യാറാണോ (Q) അല്ല. യാത്രയിൽ കണ്ടുമുട്ടി share ചെയ്തതാണ്(A) Ext. P1-ന്റെ original-ൽ reverse side-ൽ എഴുതി എന്നു പറയുന്ന തുക എത്രയാണ് (Q) 173 രൂപയാണ് (A) ആ തുക എഴുതിയത് TTR bearer-ക്ക് 14 രൂപ കൊടുത്തു എന്ന് താങ്കൾ പറഞ്ഞതിന് ശേഷം എഴുതിയതാണോ (Q) അല്ല (A) താങ്കളുടെ അന്യായം നാലാം paragraph-ൽ (page 3) read over to the witness. Last –ന് തൊട്ടുമുമ്പുള്ള വരിയിൽ പറയുന്ന കാര്യം കളവാണ് (Q) ticket -ന്റെ back-ൽ എഴുതിയത് 173 രൂപയാണ് complaint-ൽ വന്ന mistake ആണ് (A) Ext. P2 shown to the witness ഇതു പ്രകാരമല്ലേ താങ്കൾ railway-യ്ക്ക് ആദ്യമായി പരാതി കൊടുത്തത് (Q) അതെ (A) സംഭവം നടന്നു എന്നു പറയുന്ന തീയതി മുതൽ Ext. P2 കൊടുക്കാൻ ഇത്രയും കാലതാമസം വന്നതെന്താണ് (Q) Business ആവശ്യമായി ഞാൻ കുന്ദാപുരയിൽ ആയിരുന്നു. അതാണ് താമസം വന്നത് (A) താങ്കൾക്ക് എത്ര രൂപയാണ് കിട്ടേണ്ടതെന്ന് Ext. P2-വിൽ പറഞ്ഞിട്ടില്ല (Q) Exact amount പറഞ്ഞിട്ടില്ല. details കാണിച്ചിട്ടുണ്ട് (A) Amount ഇപ്പോൾ പറയാമോ (Q) 159 രൂപ (A) Ext. P3 shown to the witness ഇതാണ് താങ്കൾ 11.08.2012-ൽ കൊടുത്ത രണ്ടാമത്തെ പരാതി (Q) ആദ്യം കൊടുത്തതിൽ രണ്ട് പരാതിയുണ്ടായിരുന്നു. അതിൽ ഒരു claim settle ചെയ്തു. settle ചെയ്യാത്ത claim-നു വേണ്ടി രണ്ടാമത്തെ പരാതി കൊടുത്തു (Ext. P3) (A) Ext. P2-നും Ext. P3-യ്ക്കും ഇടയ്ക്ക് താങ്കൾ വേറെ പരാതി കൊടുത്തിട്ടുണ്ടോ (Q) ഇതിനിടയ്ക്ക് ഒരു പരാതി ഞാൻ Railway-യ്ക്ക് കൊടുത്തിട്ടുണ്ട് (A) അതായത് 09.08.2012-ൽ താങ്കൾ DCM-ന് കൊടുത്ത പരാതിയാണ് (Q) അതെ. ഞാൻ കൊടുത്ത പരാതിയാണ് എന്നെ ഇപ്പോൾ കാണിച്ചത് Documents marked as Ext. D1. Ext. P2-വിലും Ext. P3 യിലും 14 രൂപ pantry car bearer ക്ക് കൊടുത്തതിന്റെ ബാക്കിയാണ് എനിക്ക് കിട്ടാനുള്ളതെന്ന് പറഞ്ഞു കാണുന്നില്ല (Q) മറന്നു പോയതാണ് (A) Ext. D1 shown to the witness. Ext. D1-ൽ ഈ 14 രൂപയുടെ Difference-ന്റെ explanation പറയുന്നുണ്ട്. Ext. P2-ലും P3-യിലും പറഞ്ഞിട്ടില്ല (Q) മറന്നുപോയതാണ് (A) ഒന്നാം എതിർകക്ഷി കോടതിയിൽ ഹാജരാക്കിയ രേഖകൾ ഞാൻ പരിശോധിച്ചിട്ടില്ല. Ext. D1 താങ്കൾ ഒന്നാം എതിർകക്ഷി office-ൽ നേരിട്ട് പോയി കൊടുത്തതാണ് (Q) അതെ. Witness adds Ext. D1 കൊടുത്തത് railway-ൽ നിന്ന് എന്നെ വിളിച്ചു വരുത്തി refund തരാമെന്ന്പറഞ്ഞു. അപ്പോൾ complaint officer 14 രൂപ difference പറഞ്ഞു. ഓർമ്മയുണ്ടെങ്കിൽ എഴുതി തരാൻ പറഞ്ഞു. അപ്പോൾ തന്നെ ഞാൻ Ext. D1 എഴുതി കൊടുത്തു (A) ഇപ്രകാരം താങ്കളെ വിളിച്ചു വരുത്തി explanation എഴുതി തരാൻ railway ആവശ്യപ്പെട്ടതിന് രേഖ ഹാജരാക്കാമോ (Q) രേഖയില്ല (A)
1st opposite party filed chief examination of affidavit and Exts. D1 to D8 marked. 1st opposite party was cross examined by 2nd opposite party. In the deposition of DW1 “How it can be called an illegitimate claim (Q) Name of the passenger is not mentioned in the ticket or excess fare ticket. So we consider it as an illegitimate claim (A)”. DW1 was cross examined by complainant. In cross “By paying excess fare that the complainant had travelled in the train (Q) Yes, but the bonafide of the complainant is not established. What do you mean by the word ‘bonafide’ (Q) The excess fare ticket should bear the name of the passenger (A). What was the excess amount found with the 2nd opposite party (Q) Rs. 159/-. Claim of the complainant is refund of Rs. 159/- (Q) Yes. There was 2 cases from the complainant. 1st instant the complainant claimed that the amount given was Rs. 173/- and in the second instant he claimed that the amount due is Rs. 159/-. Both the claims were regarding separate journeys (Q) No, it regards to the same journey (A)”.
Witness DW2 examined on the side of 1st opposite party. DW2 cross examined by 2nd opposite party. “Finally at Shornur while making proceedings asking him to remit the excess amount in separate EFT (Excess Fare Ticket) whether you had obtained any statement from him (Q) Yes (witness adds). I obtained a cash check memo No. 12707 in which the TTE had recorded the denominations of personal cash, railway cash and the amount of transaction upto the time of commencement of check. In this cash check memo there is a remarks column wherein the person subjected to check can record the reasons for shortage or excess cash with him. In this case the TTE did not record any reason in the said memo (A)”. In the cross by complainant “നിങ്ങൾ എന്തിന്റെ അടിസ്ഥാനത്തിലാണ് complainant ഒരു consumer അല്ല എന്നു പറഞ്ഞിരിക്കുന്നത് (Q) In Exts. P1 and P9 passenger name, or signature ഇല്ലായിരുന്നു to prove that he is actual passenger who travelled in the train (A) EFT issue ചെയ്യുമ്പോൾ അതിലെ entries ആരാണ് എഴുതുന്നത് (Q) Passenger name and signature ഒഴിച്ചുള്ള മറ്റ് entries TTE ആണ് ചെയ്യുന്നത്. Passenger ആണ് name എഴുതി sign ചെയ്യുന്നത് (A) അങ്ങനെ passenger എഴുതിയില്ല എങ്കിൽ അതിന്റെ ഉത്തരവാദിത്വം ആർക്കാണ് (Q) Both passenger and TTE (A)”. 2nd opposite party filed chief examination of affidavit, but subsequently the chief examination of affidavit was not pressed. 2nd opposite party is not cross examined.
Points (i) to (iii):- The case before this Forum and the issue raised is regarding whether the complainant is a consumer and whether there is any deficiency of service on the part of the opposite parties. The complainant claims that he entered the train No. 16336 Gandhi Dham Express on 24.04.2012 without any valid ticket and he taken EFT (Excess Fare Ticket) from the 2nd opposite party. There is no evidence produced by the complainant that he has travelled in the said train apart from the EFT marked as Ext. D1 as well as Ext. P9 in which complainant’s name is not mentioned. Complainant being the frequent customer of 1st opposite party and having previous experience of entering the train without proper ticket and subsequently taken EFT. Secondly complainant has not made a complaint immediately, but only after a lapse of two months along with an earlier incident of deficiency of service on the part of 1st opposite party. As per the first complaint sent by the complainant to 1st opposite party, the claim was for Rs. 173/- which is endorsed on the back of EFT. But subsequently complainant has changed his claim to Rs. 159/- which suits with the defence of 2nd opposite party in the Vigilance case against the 2nd opposite party. The complainant was a defence witness for the 2nd opposite party in the vigilance case. Some suspicion regarding the change of amount from Rs. 173/- to Rs. 159/- is against the complainant. This Forum is not concerned with the vigilance case. There is nothing mentioned in the reverse side of Ext. P1. As per Ext. P2 the claim is Rs. 173/- and as per Ext. P3 the amount come down to Rs. 159/-. Ext. P4 is the lawyer notice in which a new story of Rs. 14/- given to tea vendor. As per Ext. P9 it is mentioned as Rs. 173/- on the reverse side. As per Ext. D1 it is mentioned as Rs. 159/- and in Ext. D2 the amount is Rs. 173/-. As per Ext. D6 2nd opposite party was having sufficient change to give the balance to the complainant. Complainant is a scapegoat of 2nd opposite party to escape from vigilance case. We are of the opinion that complainant is not a consumer. There is no evidence put forward by the complainant to show that he has travelled in the train No. 16336 on 24.04.2012 from Kollam to Kundapura. Exts. P1 and P9 lack the name of the complainant. Moreover there is no accuracy in the claim put forward by the complainant as per the documents produced. Hence complainant is not entitled for the reliefs sought and complaint is to be dismissed.
In the result, complaint is dismissed without cost.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31st day of July 2015.
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P.SUDHIR : PRESIDENT
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R. SATHI : MEMBER
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LIJU B. NAIR : MEMBER
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C.C. No. 335/2013
APPENDIX
I COMPLAINANT’S WITNESS:
PW1 - S. Sreekumar
II COMPLAINANT’S DOCUMENTS:
P1 - Copy of excess fare ticket
P2 - Copy of the petition dated 05.06.2012 issued by complainant before
GM, Southern Railway, Palakkad Division.
P3 - Copy of request dated 11.08.2015 issued by complainant to
Divisional Commercial Manager, Southern Railway, Tvpm.
P4 - Copy of advocate notice dated 28.06.2013.
P5 - Postal receipt
P6 - Acknowledgement card
P7 - Copy of application dated 22.04.2013 issued by complainant Central
Public Information Officer, Railway Divisional Office, Thycaud.
P8 - Letter issued by Public Information Officer to complainant.
P9 - Copy of Tatkal Sewa Journey Cum reservation ticket dated 18.04.12.
III OPPOSITE PARTY’S WITNESS:
DW1 - B. Guganesan
DW2 - G.S. Anichandran
IV OPPOSITE PARTY’S DOCUMENTS:
D1 - Copy of letter dated 09.08.2012 issued by complainant to DCM,
Southern Railway.
D2 - Copy of petition dated 05.06.2012 issued by complainant before the
GM, Southern Railway, Palakkad Division.
D3 - Copy of letter dated 25.04.2012 issued by 2nd opposite party to the
Sr. Divisional Manager/TVC.
D4 - Copy of letter dated 18.10.2013 issued by G.S. Anichandran,
CVI/T/MAS
D5 - Copy of letter dated 18.10.2013 issued by V. Giridhar CV/T/MAS to
1st opposite party.
D6 - Copy of cash check memo dated 24.04.2012
D7 - Copy of letter dated 27.07.2012 issued by 2nd O.P to 1st O.P.
D8 - Copy of penalty advice dated 21.10.2014.
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PRESIDENT
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