(As per A.A.Jain, Hon´ble Member)
The Complainants have filed this complaint against Opposite Parties claiming various reliefs as per prayer clause :-
The fact of the case is an under :
1. The Complainant's case in short is that they have got reservation for going to Gondia to CST Mumbai for attending a business dealing with the company BBVT on 09-09-2004 by train No. 2810 Up at Coach No. S/6 berth No. 39, 40, 28 respectively. The business deal will be arranged on 10-09-2004.
2. When train arrived at Gondia Rly. Platform it was badly crowded due to some Morcha at Mumbai. The complainant approached to T.T.E., T.C.., A.S.M. and G.R.P. but they expressed their inability and helplessness regarding vacating the berth and allotted to the complainant . Then the A.S.M. advised to return the said tickets for refund of the fare and it was refunded 50% of total amount Rs.532/- and deducted 50% of the total fare and at the same time complainant’s has lodged the complaint on 09-09-2004 vide complaint No. 036764 at office of O.P. at Gondia.
3. Complainant have given notice and requested O.P. to refund remaining amount 50% cost of tickets. But O.P. refused that they have got the letter after 90 days so complainant are not entitled for 50% remaining amount refund.
4. Complainants prayed that they were to travel from Gondia to Mumbai to attend the important business metting for the settlement of bad debt dues not less than Rs. 3,00,000/- which was pending with the party “Camlin Ltd. Mumbai” on 10-09-2004 therefore it was being caused heavy loss of complainant due to negligence and deficiency in service i.e. berths were not provided, which caused loss of business to the tune of Rs.1,50,000/- and mental agony and harassment which could be compensated by these opposite parties. Complainant prayed that O.P.No.1, 2, 3, 4,5 & 6 jointly and severally responsible to compensate the loss of business Rs.1,50,000/- + Rs.532/- ticket fare and Rs.30,000/- mental harassment charges and Rs.5000/- as cost (expenditure), Total Rs. 1,85,532/-(Ex.1).
5. In response to notice u/s 13 of C.P.Act 1986 O.P. appeared and filed his reply (Ex.13) O.P. denied that they are staff of S.E.Railway O.P. denied the cause of action stated in complaint and submitted that this complaint is time barred and not maintainable and liable to be dismissed with cost.
Further O.P. denied that complainant no. 1 to 3 were to attend an urgent meeting at CST Mumbai with company B.B.V.T. on 10-09-2004 . However, O.P. admitted about reservation of all three complainants. O.P. denied that there was heavy rush of any CST Mumbai going workers of political party at platform. Complainant could their berth by entering in the coach from the gates adjoining coaches. O.P. submitted that complainants have claimed 50% refund was not paid.
In this case complainants have voluntarily not boarded the train and chose not to travel. It is submitted by O.P. that there is no deficiency in service and O.P. is not liable for claim of Rs.1,85,532/- and this complaint is time barred, false, baseless and not maintainable and is liable for dismissal with compenstary cost of Rs.10,000/-.
7 On verifying all the records, and hearing of arguments of both the parties and going through case laws, the following points arise for our consideration and our findings on the same are us under :
Points Findings
A) Whether this complaint is time barred ? No
B) Whether there is deficiency in service on the part of O.Ps. Yes
C) Whether complainants are entitled for the reliefs claimed ? Yes (Partly)
D) What Order ? As per final Order.
8 At the outset, we have found that the complainants have filed the instant complaint against the South Eastern Railway and its officials/employers. However, the O.P. have submitted in para 1 of their W.S. that the O.P.no.1 to 6 are the officials/ staffs of the south East Central Railway and hence, though the complainants have not amended the complaint after filing of W.S., we have taken the judicial notice of the fact of change of South Eastern Railway to South East Central Railway and accordingly hold them as the O.Ps. in the instant complaint.
9 Complainants were unable to ‘board’ in the train due to heavy crowd of BJPs Yuwa Morcha Workers and they were also going to CST Mumbai on dt. 09-09-2004. Complaints have lodged the complaint to Railway authority and surrendered the reserved ticket and got 50% refund from the O.P. Cause of action arose on 09-09-2004. Then they have claimed for remaining 50% amount of ticket which should be refunded due to fault on the part of O.P. and this claim was finally repudiated on 30-03-2005. (Ex.1 document No.6). And limitation period for filing the complaint is for 2 years from date of cause of action . So on dt. 30-03-2005 finally repudiated claim by O.P. is the date of cause of action u/s 24-A of C.P.Act, 1986 . This complaint was filed on 21-12-2006 i.e. before 30-03-2007. So this complaint is not time barred. Hence we answer the point no. 1 in the negative.
10 The second point is about deficiency in services of O.Ps. It is submitted by the complainant that this is the duty of O.P. to help/assist the passenger for boarding in train and occupying their berth. “The complainants approached to T.T.T, T.C., A.S.M., & G.R.P.. but they expressed their inability and helplessness regarding vacating of the berth allotted to the complainants. Then A.S.M. advised to return the said tickets for getting refund of the fare. (Ex. Para 3). Then, complainant’s have filed the complaint in the complaint book on page No.036764 and 036765 which was endorsed and received by duty station Master Shri Subramaniyam. He told that there was no any ‘restriction’ on ‘Morcha’. So Railway authority, G.R.P. etc. in place of helping to the passengers they were avoiding their responsibility on others head. And this is the clear example of deficiency in service as stated in second point.
11 Complainant has given a letter to Railway authority on dt. 11-12-2004 with reference to the letter No. Sr.D.C.M. letter No. GIV/NGP/09/04/G/269 dt. 25-10-04 about issued T.D.R. to complainant , In this letter Station Manager of Gondia Rly. Station has given remark (Ex.1 Doc.3)
“Issue TDR and give remark that party has taken refund after missing the train due to Morcha and demanded refund. As per direction of Sr.D.C.M. TDR issued for – disposed.
TDR No.080211 dt. 23-10-2004 the reason of refund not given at Station is given that,
“Party failed to board the train due to BJP Yuwa Rally as per remark given by S.M.Gondia. As per party version they have taken refund from counter but want full refund and made complaint.” (Ex.1 Doc.4).
As per above version given by O.P. complainants are entitled for claim as prayed.
12 Complainants have submitted that there was big loss for not attending the business meeting at Mumbai on dt. 10-09-2004 so they prayed that O.P. should pay Rs.1,50,000/- as the loss of business. But on record there is not any letter or evidence of “Camlin Co.” to Come Mumbai for settlement of any dispute regarding ‘bad debt dues’ . There is no any document on record that after 10-09-2004 how the dispute was settled in which amount it was settled with Camlin Co. Mumbai. So the version of complainant is not reliable.
13 Complainant has filed complaint against authority of South Eastern Railway but due to change the territorial jurisdiction now the dispute falls under South East Central Railway. So liability of payment is on S.E.C.Railways. O.P. has submitted some Xerox copy of rules and directive of Railway about refund. But the rules and directives of the O.P. cannot override the statutory provisions of the Act and the O.P. cannot escape their liability once the deficiency in services on their part is established by the complainants.
14 Complainants have taken one date for adjournment for submitting ‘Case law’ for helping to decide the complaint and date was given on 14-03-2007. But they failed and again they requested for date and on next date 15-03-2007. They did not submit any case law. However, we are guided by the authority of the Delhi State Commission reported in III (2006) CPJ 335 Delhi State Consumer Disputes Redressal Commission, New Delhi- Northern Railway Vrs. Prakash Chandra – Appeal Nos. A-158 and 159 of 2000 decided on 06-02-2006 where in it was held that:
“Whenever a consumer purchases tickets of reserved berths it is the duty of the appellant-Railway to provide only the access to the compartment but also the reserved berths. It appears to be case of bad management. In the coach where the seats are reserved, concerned officials of the appellant-department are required to be present and see that every passenger having valid ticket and reserved berths enter into the compartment and is also provided seat. This is the minimum requirement for protecting the interests of the consumers from undergoing untold hardships at the hands of such providers of service like the Railway airlines, etc. and that is why high standards of service have been provided by the statute . Any fault, imperfection, shortcoming or inadequacy in that manner of performance of its obligation amounts to deficiency in service entitling the consumer for compensation as to the loss or injury suffered by him. The concerned District Forum and there after the file be consigned to the Record Room.
A copy of this order be also sent to all the Presidents of the District Forum for future guidance.”
So as per above guidance given by their Lordship we proceeds to pass following order .
ORDER
1. Complaint is allowed.
2. O.Ps . are jointly and severelly directed to pay to the complainants No. 1 to 3 jointly Rs.6000/- as the mental and physical compensation and Rs.1000/- as the cost of complaint with Rs.532/- Balance amount 50% of surrendered tickets. Total Rs.7532/- within one month from the date of this order and in the event of default to make payment within the stipulated period the O.P. shall be liable to pay interest @ 12% on amount of Rs. 7532/- from the date of this order till realization.
