cccccPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Date this the 30th day of January 2013 Filed on : 21/10/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member.
C.C. No. 581/2011
Between
Vimal M. Mehta, S/o.MadhukarK Mehta : Complainant
House No. 272, Ground floor, (By Adv. Hari Sarma M,
“Shoba”, 15th Cross road, “Kolassery Illom”
Girinagar, Kadavanthra P.O., Chilavannur road,
Kochi-682 020. Kadavanthra P.O.,
Kochi-682 020)
And
1. Southern Railway, : Opposite parties
Rep. by Manager, (By Adv. Millu Dandapani,
Ernakulam Dandapani Associates,
SouthRailwayStation, “Thrupthi” T.D. Road North
Kochi-16. End, Cochin-682035)
2. Konkan Railway Corporation Ltd.,
Rep. by Sr. Divisional Commercial
Manager, Thiruvananthapuram.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant had booked ticket with the 1st opposite party to travel from Ernakulam to Ahemedabad In Train No. 16338 Ernakulam Okha Express on 10-08-2011. The complainant was issued with a confirmed 2nd class A/C ticket. The complainant paid the ticket charge of Rs. 1,892/-. On the date of travel, when the complainant arrived at the station with luggage he was informed that there is no 2nd class A/C coach in the train. The 1st opposite party instead of providing alternate 2nd class A/C coach had attached a duplicate and poorly maintained and unclean 3rd class A/C coach. All the passengers including the complainant had a nightmarish journey. Therewere cockroaches all over the coach. The seats were in a dilapidated and mutilated condition. There was no water in the bathrooms. The toilets were totally unclean and were not at all usable. The seats were full of bed bugs. The nightmarish journey continued for two nights and one day. The complainant had to suffer mental as well as physical pain through out the journey even after. The complainant had to spend 3 hours at the Ahamedabad station for getting refund of the excess amount paid on account of booking in the higher class. The omission on the part of the 1st opposite party to provide the adequate service amounts to deficiency in service. The complainant was compelled to travel to Ahamedabad since he had to attend the All India Travels Tourism Mart. The complainant is entitled to get a compensation of Rs. 2 lakhs from the opposite parties together with costs of the proceedings. This complaint hence.
2. The version of the opposite parties is as follows:
The complainant is not a consumer within the ambit of the Consumer Protection Act. The complainant has no cause of action against the opposite parties. During Primary maintenance the II AC coach attached to train No. 16338 Ernakulam – Okha Express of 10-08-2011 was reported mechanically sick ( defective) since the “ L2 equalizing stay” was found broken. As per safety norms such a coach would not have been attached to a running train since it would endanger the safety of the entire train. There were no II AC spare coaches available on hand to replace the sick marked coach available alternate accommodation was provided to the passengers. The complainant had an option of canceling his ticket when he came to know that the II AC coach was not available and get him full refund from the station itself. The complainant travelled in the same train and the subsequent claim will not stand. The complainant was issued with a lower class certificate, with which he could have easily got a refund of the difference of fare between II AC coach and III AC coach. The complainant duly accepted the difference in fare. The III AC coach attached in the place of II AC coach was in good condition and was certified fit to travel by competent authority. During the primary maintenance at Ernakulam Junction on 10-08-2011 the coach was cleaned and watered fully and all the passenger amenities and fittings were attended to carefully. The A/C of the AC coach was working properly. There is no deficiency in service on the part of the opposite parties. The opposite parties are not liable to pay any compensation or costs of the proceedings to the complainant. The complaint deserves dismissal.
3. The complainant was examined as PW1, Exts. A1 to A8 were marked. The witness for the opposite parties was examined as DW1 and Exts. B1 to B4 were marked on the side of the opposite parties. Heard the learned counsel for the parties.
4. The points that arose for consideration are as follows:
i. Whether the complainant is a consumer?
ii. Whether the complainant is entitled to get a
compensation of Rs. 2 lakhs and costs of the proceedings
from the opposite parties?
5. Point No. i. At the outset the opposite parties raised a contention in their version that the complainant is not a consumer within the purview of the Consumer Protection Act without stating the reasons for the same. Prima facie nothing is on record to substantiate the said contention of the opposite parties. The Hon’ble National Consumer Disputes Redressal Commission held that a person who purchases ticket for traveling by Railway is a consumer and such a person is entitled to file a complaint under the Consumer Protection Act Vinaya Vilas Sawant (Smt) V. Union of India 1 (2008) CPJ 13 (NC). On account of the categorical pronouncement of the Hon’ble National Commission we find that the contention of the opposite parties is not sustainable.
6. Point No. ii. Admittedly the complainant had booked Ext. A1 ticket with the 1st opposite party to travel from Ernakulam to Ahamedabad by train bearing No. 16338 Ernakulam Okha Express on 10-08-2011. It is not in dispute that the complainant was issued with a confirmed 2nd class A/C ticket at a price of Rs. 1,892/-. It is also not in dispute that the 2nd AC coach attached to train No. 16338 was reported mechanically sick (defective) and the opposite parties had arranged an alternative accommodation by providing 3rd AC coach, evidenced by Ext. B2 letter issued by Station manager, Southern Railway, Ernakulam Junction.
7. According to the complainant he opted to continue with the journey since he had to attend the “Travel and Tourism mart” which has to be he held in Ahamedabad from 19th to 21st August 2011. He maintains that the journey in the replaced coach was a nightmare for him since the coach was in a dilapidated state. It is stated that in spite of Exts. A2 and A5 complaints the opposite parties did not take any action and the complainant is entitled to get compensation for the mental agony, physical pain and inconveniences. On the contrary the opposite parties contended the replaced 3rd AC coach was in good condition and was certified fit to travel by the competent authority and Ext. B3 is the evidence for the same. According to them there was no deficiency in service on their part and they are not liable to pay any compensation and costs to the complainants.
8. We have carefully gone through Ext. A6 series (14 in numbers) photographs of the replaced coach which as admitted in evidence without demur. Bed bugs and cockroaches are seen from the photograph. The seats are in damaged condition and are unusable. It is to be noted that the complainant had high lighted his grievances at the earliest opportunity before the opposite parties by filing Ext. A2 complaint during the journey and thereafter Ext. A5 along with other fellow passengers. The opposite party acknowledged the receipt of the above complaints however no action was taken on their part to redress the same. The opposite parties a public utility service at least ought to have responded to the genuine complaint of the complainant and his fellow passengers. Per se negligence and deficiency in service are evident and the principle of ‘res-ipso-loquitur applies’ in the given circumstances. The opposite parties are anserable for the same, since the evidence of the complainant remains unchallenged and unrebutted. The opposite parties should have examined the person or the authority purportedly examined and certified the condition of the coach and issued Ext. B3 certificate to substantiate their conditions in this Forum in which they failed. During evidence DW1 the witness for the opposite parties stated that he is not acquainted with the facts of the case and so his evidence is inadmissible.
9. Evidently the complainant has had to suffer unwarranted mental agony and physical inconveniences through out the journey of 2 nights and one day. This pathetic situation has not been abated even during the journey and after, the failure on the part of the opposite parties responds to the two complaints of the complainant and their failure to establish the contention in Ext. B3 calls for compensation. We fix it at Rs. 50,000/- towards compensation and costs of the proceedings.
10. Umpteen times such instances have been reported in news papers all over however it seems that Railway Authorities are paying scant attention to this malady if not turning a deaf ear or a blind eye. It is unfortunate that a monopolist like Railways should behave in a manner which sounds like high handedness and it is high time that something in this matter was taken up at least to not give rise to occasions like this as in other tragedies.
11. In the result, we partly allow the complaint and direct that the opposite parties shall jointly and severally pay Rs. 50,000/- (Rupees fifty thousand only) to the complainant towards compensation and costs of the proceedings for the reasons stated above.
The above said order shall be complied with within a period of thirty days from the date of receipt of a copy of the order, failing which the above amount shall carry interest @12% p.a. till payment.
Pronounced in the open Forum on this the 30th day of January 2013.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of railway ticket
A2 : Copy of complaint
A3 : Copy of certificate for
creating refund
A4 : Copy of letter dt. 17/08/2011
A5 : Copy of letter dt. 10-08-2011
A6 : photo copies ( 14 Nos.) and C.D.
of the photographs
A7 : copy of letter dt. 05-08-2011
A8 : Entry card
Opposite party’s Exhibits : :
Ext. B1 : Copy of conference rules
B2 : copy of letter dt. 05-02-2012
B3 : Copy of letter
A4 : Copy of reservation
of births etc.
Depositions:
PW1 : Vimal M. Mehta
DW1 : N. Sivakumar
