IN THECONSUMER  DISPUTES  REDRESSAL  COMMISSION,  KOLLAM

                                                      DATED THIS THE  16^th DAYOF APRIL2021

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

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

CC.No.126/2018

Suresh K.Lalwani,

“Thankam”, ARA-115,

Mundakkal East, Kollam 691 001.                                      :           Complainant

(By Adv.Boris Paul)

V/S

1.    The Director,

               Public Grievance Cell

             (Additional General Manager),

              Southern Railway,

             Park Town, Chennai 600 003.

             (By Adv.S.Dileep Kumar)

2.    The Manager,

                 Southern Railway, Kollam 691 001.

                (By Adv.S.Dileep Kumar)

3.    The Divisional Manager,

               Southern Railway, Thiruvananthapuram.

                 (By Adv.S.Dileep Kumar)

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:-

The complainant, hailing from Uttar Pradesh is doing business at Kollam, Kerala for the last several years and is therefore a regular customer of Southern Railway.  According to the complainant he had booked a 3A ticket from the Kollam Railway Station on 14.09.2017 for himself and his wife for a journey from Pune Jn.to Kollam on 25.12.2017.  The train number was 16382 and the PNR number was 816-3386922.  The ticket charges realized from the complainant was Rs.3,570/-.  At the time of booking the tickets were issued with Waiting List Nos.9 and 10.  The booking clerk had assured that the tickets would normally be confirmed as the complainant was booking it much earlier.  On 25.12.2017 the complainant was told that the berths/seats were not confirmed and it is still in the waiting list.  The complainant and his wife had to travel by another train from Pune to Panavel and from Panavel to Kollam.  The complainant requested the booking clerk to cancel the unconfirmed ticket and to refund the amount.  But the complainant was told that he was not entitled for refund as the train had already departed.  According to the booking clerk this was the rule of the Railway authorities and he was helpless.

     It is further alleged by the complainant was issued a ticket which does not contain any such rules therein.  Moreover it is clear that no loss was sustained to the Southern Railway as the berths/seats were not confirmed.  It is quite surprising that an amount of Rs.3,570/- is being squeezed from a consumer who was not granted a confirmed ticket, that too by a public transport concern.  The complainant has enough reasons to believe that such acts of refusing refund for unconfirmed tickets are clearly unfair and unreasonable.  The complaint being a consumer of Southern Railway , was not given seats/berths but squeezed of an amount of Rs.3,570/- stating simply that the rules are as such.  It is further alleged by the complainant if so the rules itself are unfair and against public policy.  According to the complainant at the time of issuance of the ticket, the complainant was not enlightened about such illegal rules of Southern Railway.  The ticket also does not contain any such information for the consumers.  The acts of the opposite party has caused immense mental agony apart from monetary loss and other inconveniences to the complainant and his wife.  The opposite parties are liable to compensate the same.  Legal notice was issued on 06.01.2018 to the opposite parties and they received it.  The 1^st opposite party issued a reply dated 09.01.2018 acknowledging the notice and informing that the same has been forwarded to Additional Divisional Railway Manager, Southern Railway, Thiruvananthapuram.  Thereafter no action was taken as assured.  According to the complainant acts of the opposite parties are a clear case of deficiency in service.  Hence the complaint.

     The opposite parties filed version resisting the averments in the complaint and raised the contention that the complainant has approached this Hon’ble Forum with unclean hands.  According to the opposite parties the complainant has no manner of cause of action against the opposite parties as there is no deficiency or imperfection in the official discharge of duties expected to be done by the opposite parties in this case.  It is further contended by the opposite parties this is a case which seeks refund of railway fare and related claims.  But railway claims Tribunal is the competent forum to try this case and contends that this complaint is bad for lack of jurisdiction. The opposite parties further contend that the complainant was also issued with tickets under this condition and he had accepted the same with full knowledge that such rules exist.  Ignorance of rules or law cannot be considered as a valid excuse for making a false claim.  Further such backtracking squarely attracts principle of estoppel.  The opposite parties also had produced a copy of the refund rules as Ext.A2 actually this rules is made available to the public through the Public Time Table, published from time to time for the awareness of the public.  Opposite party further contends that complainant being a businessman having business at Kollam and a native of Uttar Pradesh it is hard to believe that the complainant does not know a rule regarding cancellation.  Even though he is not aware of this information, it was readily available for him at any Railway reservation counter across the country.  It is further alleged by the opposite parties they had tried to cancel the ticket of the complainant only after the train has actually departed it was admitted in the 3^rd para of the complaint.  It is a well settled position as per existing rules relating to refund that no refund is admissible if the ticket was surrendered after the departure of the train for which ticket was issued.  The complainant has no manner of right to question the rules framed by the Railways Act regarding refund of fares under the provisions of CP Act.  The opposite party also contends that the complaint is bad for non-joinder of necessary parties as the subject matter exclusively falls within the jurisdiction of Pune Division of Central Railway the same information was conveyed to the complainant.  In the circumstances the complaint is liable to be dismissed inliminie with heavy compensatory costs of the opposite parties.

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

1. Whether there is any deficiency in service on the side of opposite parties in not refunding Rs.3,570/- to the complainant in respect of the unconfirmed ticket?
2. Whether the complainant is entitled to get compensation for loss and mental agony?
3. Relief and costs?

Evidence on the side of the complainant consists of the oral evidence of PW1, and Ext.P1 to P5 documents. Ext.P1 legal notice dated 06.01.2018.  Ext.P2 postal receipt dated 06.01.2018.  Ext.P3 postal acknowledgment cards dated 08.01.2018.  Ext.P4 reply dated 09.01.2018 issued the counsel of the complainant by 1^st opposite party.  Ext.P5 railway tickets(3 Nos.)  The opposite party has not adduced any oral evidence and a copy of refund rules has been marked as Ext.D1.  Complainant and opposite party had filed argument notes .  Heard the counsel for the complainant and opposite parties.

Point No.1&2

     For avoiding repetition of discussion of materials these two points are considered together.  The following are the undisputed facts.  The complainant is a native of Uttar Pradesh and having his business in Kollam for the last 7 years and therefore a regular customerof  Southern Railway that he booked two journey cum reservation tickets from the Kollam Railway Station on 14.09.2017 for himself and his wife for a journey from Pune Jn.to Kollam on 25.12.2017.  The train number was 16382 and the PNR number was 816-3386922.  The ticket charges realized from the complainant are Rs.3,570/-.  The tickets were not           confirmed tickets but with waiting list No.9 & 10.  Though the booking clerk had given assurance that the tickets would normally be confirmed as such complainant has booked the same earlier.  On 25.12.2017 the complainant was told that the berths/seats were not confirmed and it is still in the waiting list.  The complainant and his wife had to travel by another train from Pune to Panavel and Panavel to Kollam.  The complainant requested the booking clerk to cancel the unconfirmed ticket and refund the amount.  But the opposite parties had told that the complainant is not entitled for refund as the train had already departed.  According to the booking clerk this was the rule of the Railway authorities and he was helpless to do the same.   The contention of the opposite party is that the complainant had approached the railway authorities to cancel the unconfirmed tickets after the departure of the train.In the view of materials discussed above it is crystal clear that the complainant is a consumer and the opposite party would come within the ambit of service provider.

     The complainant was examined as PW1 who deposed in terms of his complaint.  The opposite party has no much dispute regarding the case of the complainant that the Ext.P5 series tickets reserved by the complainant was not used by the himself and his wife since those tickets were not confirmed.  The opposite party has also no dispute that the complainant produced those tickets and sought refund of its charges but according to the opposite party the refund rules do not allow them to refund the amount paid by the complainant.  According to the opposite party it is stated in Ext.D1 Refund Rules of counter tickets that no refund of fair shall be granted for RAC ticket or wait list ticket if claimed less than 30 minutes of the scheduled departure of the train and the complainant has claimed refund only after the departure of the train.According to the complainant several consumer Forums in India have entertained similar complaints and awarded compensation to the passengers.   The Consumer Forum of New Delhi awarded compensation in a similar case and the remarks made by the Hon’ble Forum in the order railways cannot shrink its own liabilities toward refund of tickets.  Once the waitlisted tickets were not confirmed it is the duty of the opposite party (railway) to refund the ticket charges and suchnon-payment of ticket fare constitute imperfection in service.  According to the learned counsel for the complainant the opposite party is relying on Ext.D1 Rules created by them according to their whims and fancies.  If such rules are against public policy and it leads to deficiency in service the said rules itself had to be ignored and that the railways cannot be allowed to squeeze the passengers at any cost.  The complainant’s counsel has further argument that Ext.D1 Rules have no statutory backing and the opposite parties are attempting to create confusion by making such illegal and unjust Rules.  We find force in the above arguments.  It is to be pointed out that as per the available materials the complainant has reserved the tickets 3 and odd months prior to the actual date of journey.  But the ticket remained unconfirmed which is not due to any fault of the complainant.  It is further to be pointed out no wherein Ext.P5 series ticket or on its reverse side it is stated that the ticket is subject to Ext.D1 Refund Rules.  The said Rules is not a legislative  creation.  It is not passed by the ‘Parliament or any state legislature so as to take note of by all citizens including the complainant.  A Rule created by a statutory body will not be equal to the Rule passed by the Parliament or legislature and hence not knowing or not understanding that Rules is not a sin at all and the opposite party is not expected to deny the legitimate right of the complainant to get refunded the ticket charge of the unconfirmed tickets.  The non-refunding of the ticket charges by claiming that it was produced and refund claimed only after leaving the train clearly amounts to deficiency in service.

It is also broughtout in evidence that as the opposite party has not confirmed the wait listed ticket the complainant was force to travel in another two trains from Pune to Panavel and from Panavel to Kollam which has caused much mental agony apart from financial loss to the complainant.  Therefore the complainant is entitled to get reasonable compensation and costs of the proceedings.  On evaluating the entire materials on record we come to conclusion that complainant has established that he is the consumer of the opposite party that there is deficiency in service on the side of the opposite party . The unused ticket charge of unconfirmed wait listed ticket charges was not refunded in spite of specific demand.  In the circumstances we are of the view that the complainant is entitled to get refund of the entire ticker charges compensation and costs.  The point answered accordingly.

Point No.3

In the result the complaint stands allowed in the following terms.

1. The opposite parties No. 1 to 3 are directed to refund Rs.3,570/- realized from the complainant as ticket charges along with the interest @ 6 % p.a. from 14.09.2017 till realization.
2. Opposite parties No. 1 to 3 are also directed to pay Rs.5,000/- as compensation and Rs.3,000/- as costs of the proceedings.
3. The opposite parties No. 1 to 3 are directed to comply with the above directions within the 45 days from the date of receipt of a copy of this order failing which the complaint is entitled to recover the same along with the interest @ 9 % p.a for the entire amount except for costs from the opposite parties No. 1 to 3 and from their assets.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the   16^thday of  April 2021.

E.M .MUHAMMED IBRAHIM:Sd/-

                                                                                                            STANLY HAROLD:Sd/-

                                                                                        Forwarded/by Order

                                                                                     Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                : Suresh Lalwani

Documents marked for the  complainant

Ext.P1             : Legal notice dated 06.01.2018

Ext.P2             :Postal receipt dated 06.01.2018

Ext.P3             : Postal acknowledgment cards dated 08.01.2018

Ext.P4             : Reply dated 09.01.18 issued the counsel of the complainant by

  1^st opposite party

Ext.P5             : Railway tickets(3 Nos.)

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.D1           : Refund rules of railway tickets