IN THECONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE 20^th DAYOF FEBRUARY2021

Present: -      Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

Sri.Stanly Harold, B.A.LLB, Member

CC.No.121/2018

G.Jayanthakumar, Advocate,

Residing at Bodhi Nagar-158,

Thanima, ThattamalaP.O.,Kollam 691020      

(By Adv.ThirumullavaramG.SivasankaraPillai):       Complainant

V/S

          1.      The Branch Manager,

                   State  Bank of India,

                   Main Branch, Kollam 691001                                          :           Opposite parties

2.           The General  Manager,

I                     IRCTC Ltd., Internet Ticketing Centre

                       IRCA Building,

                       State Entry Road, New Delhi-110055.

                 (By Adv.MulamoottilS.AbdulSalim)

ORDER

Sri.Stanly Harold, B.A.LLB, Member

This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.

The averments in the complaint in short are as follows:-

Complainant booked a train ticket on 17.02.2018 through 2^nd opposite party for 5 persons to travel from Thalassery to Kayamkulam in train No.16603 with transaction ID 100001161736691.  Towards payment of the said train ticket, an amount of Rs.3,111.60/- including bank charge of Rs.11.60 was deducted through internet banking from complainant’s saving bank account maintained with the 1^st opposite party bank.  Even though charges for the ticket were deducted from the complainant’s saving bank account, ticket was not delivered due to the reason as informed by the 2^nd opposite party as “Payment Failed”.  In similar circumstances the amount deducted from accounts used to be refunded automatically within 7 days of the transaction, complainant waited for the refund but could not get it within the stipulated time.  However complainant filed a complaint before the 1^st opposite party

on 26.02.2018 and requested them to refund the amount debited from complainant’s account.  On receipt of the said complaint, 1^st opposite party sent a message to the complainant with ID No.3915778919 informing to wait 21 days for resolving the problem and for refund of money deducted for the unsuccessful ticket booking.  Accordingly complainant waited for the next 21 days.  However even after the lapse of 21 days there was no response from 1^st opposite party, complainant again approached the 1^st opposite party whereupon the 1^st opposite party informed the complainant that they could not get any information from 2^nd opposite party and asked the complainant to file a fresh complaint.  Accordingly complainant filed another complaint on 28.03.2018 towards which 1^st opposite party sent an ID No.bearing 4068703221 and intimated the complainant to wait another 21 days for resolving the problem within the time stipulated by them.  Since all efforts taken by the complainant before the 1^st opposite party to get back the amount deducted from complainant’s account became futile the complainant was forced to send an email to the 2^nd opposite partyon 04.04.2018.  On receipt of the email 2^nd opposite partyissued an ID No.IRCTC#8558311 and informed the complainant to refer the said ID for future communication.  Even after the receipt of above referred complaints both opposite parties did not take any action for refunding amount deducted from the complainant’s account.  Hence complainant sent registered notice to both opposite parties and demanded them to take necessary action for refund of an amount of Rs.3111.60/- deducted from the complainant’s account with due interest and Rs.5,000/- as compensation for their failure to refund the amount in time.  Both opposite parties received the notice but did not turn up either to settle the matter or to send any reply.  Thereafter complainant made several email communication to the 2^nd opposite party and had given bank statement of the complainant as demanded by the 2^nd opposite party.  But both opposite parties did not turn up for refunding the amount deducted from the complainant’s account.  Hence the complaint.

2^nd opposite party filed version by resisting the averments in the complaint and stating that the complaint is not maintainable either in law or on facts of the case.  2^nd

opposite party further contended that the complainant will not come under the purview of consumer U/s 2(d) of the Consumer Protection Act and deny by the  opposite party that complainant has not availed any service from the 2^nd opposite party.  2^nd opposite party further contended that the complainant had admit to reserve train ticket through the server of the 2^nd opposite party but he did not succeed due to the failure of effecting payment even though the amount was debited from the account maintained by complainant with the 1^st opposite party that they have responded to the mail of the complainant timely and properly so as to get refund of Rs.3100/- at the earliest.  Moreover the officials of the 2^nd opposite party responded to mail to every message sent by the complainant.  Therefore no deficiency in service can be attributed to the 2^nd opposite party.  The averments in the complaint against the 2^nd opposite party are false and hence denied.  Further prays to dismiss the complaint against the 2^nd opposite party with costs of the proceedings.

Both opposite parties received notice issued from this Hon’ble Forum and 2^nd opposite party appeared through their counsel and contested the case.  On receipt of the notice the 1^st opposite party, without appearing before this Hon’ble Forum on 07.06.2018 credited Rs.3,100/- into complainant above said saving bank account and had sent a letter to this Hon’ble Forum stating that there was no lapses on their part and requested to treat the complaint as closed.  

In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
2. Whether the complainant is entitled to get interest and compensation as claimed?
3. Relief and costs?

          Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.A1 to A15documents.  The 2^nd opposite party cross examined the complainant and got marked one document through the complainant as Ext.B1. Both opposite parties did not adduced any other evidence. 

Counsel appearing for both sides have filed notes of argument. Heard both sides.

Point No.1 &2

For avoiding repetition of discussion of materials these 2 points are considered together.  PW1 is the complainant who filed affidavit in lieu of chief examination by reiterating the averments in the complaint.  He proves Ext.A1 to A15 documents.  Ext.A1 is the copy of the bank statement.  Ext.A2 is the copy of the intimationmessage from the 2^nd opposite party.  Ext.A3 is the copy of the message dated 26.02.2018 send by the 1^st opposite party.  Ext.A4 is the copy of the message dated 28.03.2018 send by the 1^st opposite party.  Ext.A5 is the copy of the email dated 04.04.2018 sent to the 2^nd opposite party.  Ext.A6 is the copy of notice dated 11.04.2018 issued by the complainant to both opposite parties.  Ext.A7 is the copy of postal receipts.  Ext.A8 is the copy of acknowledgment card signed by the 1^st opposite party.  Ext.A9 is the copy of the reply email dated 16.04.2018 send by the 2^nd opposite party.  Ext.A10 is the copy of email send by the complainant on 18.04.2018 to the 2^nd opposite party.  Ext.A11 is copy of the email dated 30.04.2018 sent by the complainant to the 2^nd opposite party.  Ext.A12 is the copy of the email dated 01.05.2018 sent by the 2^nd opposite party.  Ext.A13 is the copy of the email send by the complainant on 01.05.2018 to the 2^nd opposite party.  Ext.A14 is the copy of the email send by the complainant on 01.05.2018 to the 2^nd opposite party.  Ext.A15 is the copy of the email dated 02.05.2018 send by the 2^nd opposite party.  The following are the admitted/rather undisputed facts in this case.  Complainant has a Savings Bank account bearing No.10648781108 with the 1^st opposite partywhich had given internet banking facility to the complainant.  The 2^nd opposite party has been functioning as the train ticket booking agent of the Indian Railway.  On 17.02.2018 complainant booked train tickets through 2^nd opposite party for 5 persons to travel from Thalassery to Kayamkulam in train No.16603.  Towards payment of the train ticket an amount of Rs.3111.60 including bank charge of Rs.11.60 was deducted through internet banking from complainant’s said saving bank account maintained at 1^st opposite party bank.  Even though charges of the ticket were deducted from the complainant’s saving bank account ticket was not delivered stating the reason “Payment Failed”.  In similar circumstances the amount deducted from accounts used to be refunded automatically within 7 days of the transaction.  However complainant waited for the refund but could not get it within the stipulated time.  It is also an undisputed fact that the complainant filed a complaint before the 1^st opposite party on 26.02.2018 and requested them to refundthe amount debited from the account.  On the basis of the said complaint, 1^st opposite party sent a message to the complainant with ID No.3915778919 and informed the complainant to wait 21 days for resolving the problem and for refund of money  for unsuccessful ticket booking.  Complainant waited for the next 21 days but even after the lapse of 21 days there was no response from 1^st opposite party.  Therefore after the complainant approached the 1^st opposite party whereupon the 1^st opposite party informed the complainant that they could not get any information from 2^nd opposite party and asked the complainant to file a fresh complaint.  Accordingly, complainant filed another complaint on 28.03.2018 towards which 1^st opposite party sent an ID No. bearing 4068703221 and intimated the complainant to wait another 21 days for resolving the problem but the 1^st opposite party did not resolve the problem within the time stipulated by them.  As per the complainant that all efforts taken by the complainant before the 1^st opposite party to get back the amount deducted from his account for an unsuccessful transaction became futile.  However on 04.04.2018 complainant was forced to send email to the 2^nd opposite party.  On receipt of email 2^nd opposite party issued an ID No.IRCTC#8558311 and informed the complainant to refer the said ID for future communication.  Thereafter the receipt of above referred the complaints both opposite parties did not take any action to refund the amount deducted from complainant’s account.  Hence complainant was constrained tosent registered notice to both opposite parties and demanded them to take necessary action for refund of an amount of Rs.3111.60 deducted from the complainant’s above said account with due interest and Rs.5, 000/- as compensation for their failure to refund the amount in time.  Thereafter complainant made several email communications to the 2^nd opposite party and had given bank statement of the complainant as demanded by the 2^nd opposite party.  Both opposite parties did not turn up for refunding of the amount deducted from the complainant’s account.  The 1^st opposite party without appearing before this Hon’ble  Forum on 07.06.2018 credited Rs.3,100/- into the complainant above said saving bank account and had sent a letter to this Hon’ble Forum stating that there was no lapses on their part and requested to treat the complaint as closed.

The oral evidence of the PW1 would establish that on 17.02.2018 complainant booked train tickets on 17.02.2018 through 2^nd opposite party for  5 persons to travel from Thalasserty to Kayamkulam in train No.16603 with transaction ID No.100001161736691 .  Towards payment of the said train ticket amount of Rs.3,111.60/- including bank charge of Rs.11.60/- was deducted through internet banking from complainant’s saving bank account maintained with the 1^st opposite party bank.  The oral evidence of PW1 would establish that on 17.02.2018 complainant booked a train ticket through 2^nd opposite party.  The 2^nd opposite party had cross examined the complainant and while on the cross examination the complainant has deposed before the commission thatFsâA¡u-­n \n¶pwSnXpI-bp-ff _m¦vservice NmÀPv 11.60 cq] IqSndebit sNbvXn-«p-­v.  Further down PW1 has deposed that Sn¡ävNmÀPvFsâA¡u-­n \n¶pwc­mwI£nhgn-bmWv t] sNbvX-Xv.  t]saâvIn«p¶ apdbv¡v   C³U-y³ dbnÂthBWvSn¡ävCjyqsNt¿-­-sX¶pw t]saâve`n-¡m-¯-XpsIm-­mWvSn¡äve`n-¡m-Xn-cp-¶-sX¶pw ]d-bp-¶p(-tNm-Z-yw) icn-b-Ã(-D-¯-cw). PW1further added“FsâA¡u-­n \n¶pwSn¡ävNmÀPv, _m¦nsâkÀhokvNmÀPvdebit sNbvXn-«p-­v”.

The 2^nd opposite party filed version and argument note stating that complainant is not a consumer U/s 2(d) of the Consumer Protection Act 1986 stating the reason that they did not collect any service charge for booking railway ticket. The 2^nd opposite party would contend that the complainant attempted to use their portal to get access to the Passenger ticket Reservation System (PRS) of the Indian Railway, free of cost. Since the said service is free the failure thereof is not a consumer dispute as the complainant cannot be termed as a consumer as defined under the Act, argues the 2^nd opposite party.  In support of their argument 2^nd opposite party produced a ruling reported in 2020 (4) KHC 373(SC).  The learned counsel for the complainant was argued that the decision relied on by the opposite party is no relevant as far as this case is concerned.  It is contended that complainant has not paid any service charge to the 2^nd opposite party for booking the railway ticket.  However the 2^nd opposite party cited the above said decision which states that service rendered free of chargewill stand outside the purview of the act.   In the present case the complainant has paid ticket fare plus booking charges for booking railway tickets which is not denied by 2^nd opposite party.  It is an undisputed fact that the complainant booked the ticket by paying ticket fare and reservation charges.  The amount was transferred from the account of the complainant maintained with the 1^st opposite party to the account of 2^nd opposite party and not to the account of the Indian Railway.Therefore we find no merit in the dictum laid down in the above quoted decision.  There is nothing on record to infer that the 2^nd opposite party has been doing service free of any remuneration anticipating virtue (]p-Wyw) from God almighty.  The 2^nd opposite party has not produced any material to prove that has been rendering gratuitous service to the public. The Ext.B1 reveals that the 2^nd opposite party returned the amount to the 1^st opposite party only on 06.06.2018.  The amount was received by the 2^nd opposite party on 17.02.2018 and during this long period the amount was retained by the 2^nd opposite party without any jurisdiction.  On receiving the amount from the 2^nd opposite party, the 1^st opposite party deposited the said amount in the account of the complainant on the next day.  The 2^nd opposite party who is handling ticket and receiving ticket charges and booking charges etc. on behalf of Indian Railwayscannot be said to be a free service provider.  The complainant has remitted ticket fare and booking charges and the agent of Indian Railwayscannot claim to be doing free service.  No records are produced by the 2^nd opposite party before this forum to prove that they are free service providers of the Indian Railways.  Hence we find that the complainant is a consumer as defined under the Act. 

The delay in returning the amount to the complainant by the 2^nd opposite party is unreasonable.  No explanation is provided by the 2^nd opposite party for such delay.  It is clear that the 2^nd opposite party retained the amount without any reason till the complainant approached this forum.  Thus we find clear deficiency in service on the part of the 2^nd opposite party.  Ext.B1 proves that 1^st opposite party deposited the amount to the account of the complainant on the next day of receiving the same from the 2^nd opposite party.  The evidence adduced before this forum through Exts.A1 toA15 reveals that the 1^st opposite party did not properly respond to the grievanceof the complainant.  Even after receiving notice from thisHon’ble Forum the 1^st opposite party did not appear before this Forum nor adduced any evidence to prove that there is no deficiency on its parts but simply sent a letter to closed the case as they returned the amount collected.  But it is to be pointed out that thecomplainant has received back the booking amount only at a highly belated stage which is after getting notice of this forum regarding the filing of the case.  It is also clear that even after getting Ext.A8 legal notice the 2^nd opposite party has not responded appropriately.  Therefore we are inclined to hold that there is gross negligence and deficiency in service on the part of the 2^nd opposite party in not refunding the amount at the appropriate time which has caused much mental agony apart from the loss the interest for the said period.  Hence the complaint is entitled to get interest at the rate of 9% per annum for the amount of Rs.3111.60 from the date of booking till the date of received of the amount.  The complaint is also entitled to get compensation to the tune of Rs.5,000/- towards compensation for the mental agony and also entitled to get reasonable costs.  The point answered accordingly.

Point No.3

In the result complaint stands allowed in the following terms.

1. The opposite party No.2 is directed to pay interest for Rs.3,111.60/- at the rate of 9% per annum from the date of booking the ticket till the date of refund of the amount.
2. The opposite party No. 2 is directed to pay Rs.5,000/- as compensation along with interest 9% per annum form the date of complaint till realization.
3. The opposite parties are further directed to pay Rs.3,000/- as costs of the proceedings.
4. Opposite party directed to comply  with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to recover the said amount with interest @ 12% per annum except for costs.

          Dictated to the Confidential Assistant  Smt. MinimolS. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   20^th day of  February 2021.

E.M.MuhammedIbrabim:Sd/-

                                                                   StanlyHarold:Sd/-

                                                                                                                                                                                          Forwarded/by Order

                                                                                                                                                                                         Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                :           G.Jayanthakumar       

Documents marked for the  complainant

Ext.A1            :           Copy of the bank statement

Ext.A2            :           Copy of the intimation message from the 2^nd opposite party

Ext.A3            :           Copy of the message dated  26.02.2018 send by the

          1^st opposite party

Ext.A4            :           Copy of the message dated  28.03.2018 send by the

            1^st opposite party

Ext.A5             :           Copy of the email dated 04.04.2018 sent to the 2^nd opposite party

Ext.A6             :           Copy of notice dated 11.04.2018 issued by the complainant to

                                    both opposite parties

Ext.A7             :           Copy of postal receipts (2 Nos.)

Ext.A8              :           Copy of acknowledgement card signed by the 1^st opposite party

Ext.A9              :           Copy of the reply e-mail dated 16.04.2018 send by the

                    2^nd opposite party

Ext.A10          :           Copy of e-mail send by the complainant on 18.04.2018 to the 2^nd

                                    opposite party

Ext.A11          :           Copy of the e-mail dated 30.04.2018 sent by the complainant to

                                    the 2^nd opposite party

Ext.A12          :           Copy of the e-mail dated 01.05.2018 sent by the 2^nd opposite party

Ext.A13          :           Copy of the e-mail send by the complainant on 01.05.2018 to the

                2^nd opposite party

Ext.A14          :           Copy of the e-mail send by the complainant on 01.05.2018 to the

           2^nd opposite party

Ext.A15          :           Copy of the e-mail dated  02.05.2018 send by the 2^nd opposite party

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.B1 :           Copy of ticket booking

E.M.MuhammedIbrabim:Sd/-

                                                                                      StanlyHarold:Sd/-

                                                                                      Forwarded/by Order

                                                                                   Senior Superintendent