BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^st of October 2011

PRESENT

        SMT. ASHA SHETTY           :   Hon’ble PRESIDENT

                        SMT.LAVANYA M. RAI       :   Hon’ble MEMBER

COMPLAINT NO.247/2010

(Admitted on 09.09.2010)

Dr.Gangadhara Swamy M.S.,

Aged about 25 years,

So. M.R.Shiva Moorthy,

Cohelo Gardens, 1^st Left

Avenue Road, Lalbagh,

Mangalore.                                       …….. COMPLAINANT

(Advocate for the Complainant: Sri.Deenanath Shetty).

          VERSUS

1. Station Master,

The Authorized Signatory

Official In charge,

Southern Railway, Attavara,

Mangalore.

2. Senior Divisional Commercial Manager,

South Western Railway,

Palghat, Kerala State.                         ……. OPPOSITE PARTIES

(Advocate for the Opposite Parties: Sri.P.Janakiram)

                                      ***************

ORDER DELIVERED BY HON’BLE PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant had purchased a train ticket bearing ticket No.36633804 to travel from Bangalore to Mangalore on 08.08.2010 and he has been allotted sleeper class in S7 railway coach and allotted seat No.30.  The above said ticket was reserved on 28.07.2010 and the train has scheduled to depart at 20.35 on 08.08.2010 from Yashwanthpur Bangalore and was to arrive in Mangalore on 09.08.2010 at 8.30 p.m. 

It is stated that, the Complainant had boarded the train on 08.08.2010 at 20.30 p.m. and he had been allotted seat No.30 in S7 sleeper class.  The allegation of the Complainant is that, he could not sleep throughout the night, there were 2-3 nails which were protruding out of the seat by tearing the upholstery of berth and he had to undergo an agonizing experience by spending his night without any sleep in the train by sitting in the seat and also stated that he had sustained an abrasion on his left knee as a result of the nail prick as had tore his costly new readymade pant worn by him.  It is stated that, he had obtained medical treatment from the doctor who administered anti tetanus injection.  It is stated that the Complainant gave a complaint to the Opposite Parties but the Opposite Parties did not conduct any local inspection subsequent to the receipt of the complaint and none of the officers inspected the berth and stated that because of their deficiency the Complainant had to sustain great mental agony and restless and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay Rs.30,000/- towards the mental agony as well as physical inconvenience caused to him and also claimed Rs.2,000/- as cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version stated that the Complainant has booked the ticket at Shimoga on 28^th July 2010 and had boarded the train at Yashwanthpura  Bangalore but the claim is made against the Station Master at Mangalore who is no way responsible for the alleged inconvenience and also took a contention that the complaint is bad for non-joinder of necessary party because the Bangalore Yashwanthpura Railway Station and the Station Master comes under South Western Railway.  The Mangalore Central Railway Station and the Station Master comes within Southern Railway.  And further contended that there is no deficiency alleged within the jurisdiction of the Mangalore Central Railway Station and the Mangalore Station Master is not responsible and no control and powers.  And further stated that, the Opposite Party is not the service provider and he is not personally or officially liable for any compensation for the alleged deficiency in service.  The certain photographs and C.D’s in support of the complaint produced by the Complainant not furnished to the Opposite Party and also took a contention that this FORA has no jurisdiction as per Section 13 and 15 of the Railway Claims Tribunal Act, 1987.  The above said Act bars the jurisdiction of the other Forums except the Railway Claims Tribunal and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant is a consumer and this FORA has jurisdiction to entertain the complaint?

2. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

4.         In support of the complaint, Dr.Gangadhara Swamy (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.  The Complainant produced 6 documents as listed in the annexure in detail.   One Mr.Neeliath Chandran (RW1), Station Manager, Mangalore and one Mr.Pradeep Kumar (RW2), Senior Train Ticket Examiner of the Opposite Party filed counter affidavit and answered the interrogatories served on them.  Ex R1 and R2 were marked for the Opposite Parties as listed in the annexure in detail.   Both parties filed notes of arguments along with citations.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Affirmative.

                       Point No.(ii): Negative.

                      Point No.(iii) & (iv): As per the final order.   

Reasons

5.  Point No. (i) to (iv):

In the instant case, the Complainant came up with a complaint stating that while he was traveling on 08.08.2010 from Bangalore to Mangalore in a train bearing No.6517, the Complainant was provided upper berth in sleeper class in S7 Railway Coach and allotted seat No.30.  The Complainant went to retire on the berth but he could not sleep throughout the night because of the protrusion of 2-3 nails through upholstery by tearing the upholstery of berth.  The Complainant had to undergo a harrowing and agonizing experience by spending his night without sleep in the train by sitting in the seat and also sustained an abrasion on his left knee as a result of the nail prick and his pant was worn etc. etc and the complaint was lodged to the Opposite Party on 09.08.2010 at 8.45 a.m but the Opposite Party officials not taken any action and because of the above injury the Complainant took treatment from the doctor by taking anti tetanus injection and he was put to mental agony and inconvenience and hence came up with this complaint.

Opposite Parties denied the deficiency and stated that, complainant had boarded the train at Yashwanthpura Bangalore but the claim is made against the Station Master at Mangalore who is no way responsible for the alleged inconvenience. The Mangalore Central Railway Station and the Station Master comes within Southern Railway. The certain photographs and C.D’s in support of the complaint produced by the Complainant not furnished to the Opposite Party and also took a contention that this FORA has no jurisdiction as per Section 13 and 15 of the Railway Claims Tribunal Act, 1987.

No doubt, a railway passenger who purchases a ticket for traveling by the railway would undoubtedly be a consumer because he pays for availing of the services to be rendered by the railways.  That person would have right to ingress to the train as well as egress from the train. Hence the Complainant is a consumer and this FORA has jurisdiction to entertain the complaint.

In order to substantiate the Complainant averments except the oral averments no other tangible evidence available on record to establish deficiency.  We are very surprised to note that the Complainant produced C.D before this FORA as per document No.2 but the copy was not furnished to the Opposite Party despite of direction given by this Forum which creates a doubt in our mind that why the Complainant avoided to furnish the C.D copy / photographs to the Opposite Party.  Further we observed that, the Complainant was allowed to implead Senior Divisional Commercial Manager, Palghat, Kerala State but no notice of amended petition sent to the impleaded party inspite of the direction given by this FORA.  Apart from the above, we also observed that the chart relating to coach No. S6, S7, S8, S9 and S10 have been produced before this Forum as Ex R1 shows that there were vacant berths available.  If the Complainant had approached the Train Ticket Examiner (herein after called ‘TTE’) definitely any one of the vacant berths could have been allotted to the Complainant.  However, the TTE had filed affidavit before this FORA stating that he was in S6 to S10 coaches on duty.  His seat was earmarked as seat No.7 in S9 coach.  If at all the Complainant found protruding of 2-3 nails out of the seat, he should have reported/lodged complaint to the TTE on duty immediately or railway police in the coaches.  But no such attempt was made by the Complainant in this case.  Further we observed that, the photograph or C.D were not surrendered to the Opposite Party No.1 when he gave the initial complaint nor there is any reference to them in the initial complaint.  In the absence of the same, it is very difficult to consider that the above said injury mentioned in doctor’s certificate i.e., document No.3 is due to the protruding of nails.  It is quite natural that when a person is not able to sleep on the seat allotted by the railway due to protruding of 2-3 nails then definitely the same should have been complained / reported to the TTE on duty.  In the absence of the same, the deficiency cannot be accepted.  There is no substance in the complaint, deserves to be dismissed. No order as to costs.                                                                                                                

6.       In the result, we pass the following:                          

ORDER

            The complaint is dismissed.  No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31^st day of October 2011.)

     PRESIDENT                                                MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Dr.Gangadhara Swamy – Complainant.

Documents produced on behalf of the Complainant:

Doc. No.1 –  Reservation train ticket bearing PNR No.431-9867875.

Doc. No.2 – Photographs and C.D.

Doc. No.3 – Doctor’s certificate and bill (2 in numbers).

Doc. No.4 – Copy of the complaint before the Southern Railway.

MO-1 : Pant.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Mr.Neeliath Chandran, Station Manager, Mangalore.

RW2 – Mr.Pradeep Kumar, Senior Train Ticket Examiner of the Opposite Party.

Documents produced on behalf of the Opposite Parties: 

Ex R1 – The chart relating to coach S6, S7, S8, S9 and S10 of 08.08.2010 – Yashwanthpur to Kannur.

Ex R2 – Duty report dated 25.10.2010 submitted by Sri.Pradeep Kumar duty TTE to Sr.DCM/Mysore regarding the present complaint in CC No.247/2010 DKDF Mangalore.

Dated:31.10.2011                            PRESIDENT