OFFICE OF THE PRESIDENT

District Consumer Disputes Redressal Forum, Siliguri

Kshudiram Basu Bipanan Kendra (2nd Floor)

H. C. Road, P.O. and P.S. Prodhan Nagar,

Dist.- Darjeeling.

Complaint Case No. CC/16/110

Debasish Sarkar,

Vs. 

THE STATION MASTER, and Others

BEFORE:  

  HON'BLE MR. Sri Kanhaiya Prasad Shah PRESIDENT

  HON'BLE MRS. MALLIKA SAMADDER MEMBER

  HON'BLE MR. Shri Tapan Kumar Barman MEMBER

PRESENT:

Dated : 03 Feb 2021

Order

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT S I L I G U R I.

CONSUMER CASE NO. 110/S/2016. DATE OF FILING: 02-11-2016.

BEFORE PRESIDENT : SRI KANHAIYA PRASAD SHAH,

                  President, D.C.D.R.C., Siliguri.

MEMBERS : SRI TAPAN KUMAR BARMAN &

  SMT. MALLIKA SAMADDER .

COMPLAINANT : Debasish Sarkar,

 C/O- Late Jagadish Sarkar,

 Deshbandhupara, Opp.-Naru Shop, P.S.- Kotwali,

 P.O & Dist.- Jalpaiguri, Pin.- 735101.

O.Ps. 1. a. :The Station Master,

 N.F. Railway, New Jalpaiguri Road,

 Bhaktinagar, Pin.- 734007.

    b. : The Divisional Railway Manager,

 Sealdah Station, Eastern Railway, Kaizer Street,

 Sealdah, Kolkata- 700014.

   2. a. : The Station Master,

 Spicejet Airways (airport office) airport compound,

 Airport Road, Bagdogra Airport, Siliguri- 734421,

 Siliguri, West Bengal.

    b. : Spicejet Airlines (Corporate Head Office) Ltd,

319, Udyogvihar, Phase-IV, Gurgaon- 122016,

Haryana, India.

   3. a. : Yatra.com,

 Head Office, 11th Floor, Tower-B,

 Unitech Cyber Park, Gurgaon, Sector 39,

 Gurgaon, Harayana-122001.

b. : Kolkata Office,

  53A, 1st floor Arihant building,

  Mirza Ghalib Street, Beside Bijaya Bank,

  Kolkata-700016.

FOR THE COMPLAINANT : Himself.

FOR THE OP No. 1 (a)(b)& 2(a) : Shri Ajay Chaudhuri & Asit Bhowmick, Advocate.

OPs No. 3 (a)(b) : Chand Shil, Amrit Lal Saha, Chinmoy Chakraborty & Abhishake Rai, Advocate.

OP No. 2 (b) : Kaushik Das, Authorised person.

   FINAL ORDER/JUDGEMENT

  Date:-03-02-2021.

Complainant’s case in sort is that on 24.07.2016 he booked on his mobile on Spicejet Apps for flight tickets online from Kolkata to Portblair and Portblair to Kolkata for travel date 23.08.2016 by

Contd….P/2.

-:2:-

flight No. SG251 starting at 11.55 hour. And for this he also bookedreserved ticket on 01.08.2016 to travel Kolkata by Darjeeling Mail on 22.08.2016 from NJP to SDAH. Accordingly he started his journey from NJP on 22.08.2016.Thereafter one goods train derailed at Adina near Old Malda station as a result various trains stand up at different places and it was causing delay of train from one hour to three hour and latter he came to know after twelve night that goods train has been derailedas a result Darjeeling Mail reached Sealdah at 3.48 hour at evening instead of 6 am in the morning. If Darjeeling mail could have reached at 10 am then the complainant could have got the flight from Calcutta Airport to Portblair.

It is further complain of the complainant that after 12 night he tried to give this message for derail of goods train on customer care of Spicejet and told to shift the ticket on 24.08.2016 instead of 23.08.2016 with the help of another’s mobile. Latter at 5.4 am he send e-mail through his mobile on customer care phone of Spicejet and also on e-mail of Spicejet but no reply was received on e-mail but on call it was told to complainant that they could do nothing for this reason. If flight ticket is cancelled before two hour of leaving the flight then there would be refund of Rs. 7000/- in complainant’s account within 5-7 days. Thereafter from his mobile he tried on Spicejet apps to reschedule the flight or cancel it on their given apps but apps was going logged which appeared company has locked it, as a result it was not cancelled or rescheduled at that time. Thereafter complainant reached at Calcutta Airport on ticket counter of Spicejet at about 5/5.30 pm and told the matter to them then they told they can do nothing and advised to purchase new ticket. Thereafter complainant called on its customer care of Spicejeton 30.08.2016 for cancellation of return ticket from Portblair to Kolkata for 31.08.2016 then they told that there would be return of Government service tax amounting to Rs. 3000/-. And when came to ticket counter at airport and talked for cancellation of ticket then from counter they told that there would be return for Rs. 4408/- and thereafter on 06.09.2016 Rs. 4408/- was transferred in the account of complainant. It is further allegation of complainant that company has sent false ticket on booking message and it was in the name of Kishanu Sikdar and it did not contain name of complainant.

The complainant had made 2nd allegation that on 27.08.2016 when he was at Chandaneswar in Odisha then he at about 11 am from his mobile downloaded Jatra Apps and booked a ticket from Kolkata to Portblair on 28.08.2016 by paying Rs. 5915/- but due to network system or in advertence the booking became for 28.09.2016. Seeing this he find out Customer Care Number 09555-800800 and within 11.19 minute he called customer care and thereafter made on transfer call to Spicejet and Jatra. One employee of Spicejet told him to ask Jatra for change of date and

Contd….P/3.

-:3:-

thereafter he again called customer care of Jatra who told that cancellation is not possible and furnished one phone number of Spicejet and thereafter employee of Spicejet told that change of date is not possible and if ticket is cancelled there would be refund of Rs. 3683/- and if Rs. 12000/- is paid additional then flight date will be changed for 28.08.2016. It has been further alleged that at first at Spicejet apps ticket value was Rs. 5100/- and at Jatra apps it was Rs.5915/- with tax and when complainant called on customer care then they told they would return Rs. 3683/- in his account but Jatra gave him email for return of Rs. 784/- only in place of Rs. 3683/- then again complainant reply to not cancel his flight ticket then again Jatra send e-mail for return or Rs. 851/- and latter Rs. 1281/- and at last Jatra transferred Rs. 2834/- (1983 + 851) in complainants account. It has been further alleged by complainant that the ticket which was sent by Jatra.com Rs. 5915/- was not mentioned and it was mentioned that this is a coupon ticket and Rs. 5915/- was deducted from account of complainant. The complainant could not succeed to rescheduled the date of journey or change it but Jatra.com could have change it but did not do so.

As per complainant the cause of action arose due to late arrival of Darjeeling Mail at 3.48pm on 23.08.2016 and further due to non-cooperation of Spicejet Customer Care and thereafter continued. At last complainant has prayed to direct the Spicejet and Railway department to arrange travel of complainant and his friend to travel free of cost at Portblair in between November, 2016 to April, 2017 in alternative complainant is ready to pay charge of Rs. 4408/- further Jatra.com has provided coupon ticket and has deducted service tax wise after deducting amount from complainant accounts and on this reason to pay damage of Rs. 25000/- to complainant.

In support of complaint the complainant has filed some documents under list.

After admission of the complaint notice has been issued to OPs. Notice has been served upon OPs. OP No. 1(a) is Station Manager, North-Frontier Railway, New Jalpaiguri and has filed written version and OP No. 1(b) Divisional Railway Manager Eastern railway Sealdah has filed another written version and OP Jatra Online Pvt. Ltd. has filed separate written version.

In written version OP No. 1 (a) has denied the material allegation of the complainant. It is version of OP No.1 that Darjeeling Mail started from NJP for Sealdah at 8 pm and there was no prior information of obstruction received by the railway. On that day a goods train was on run in between old Malda and Adina and suddenly met with an accident at about 19.55 hour causing blockage of both up and down line and Darjeeling mail along with

Contd….P/4.

-:4:-

other trains in route were delayed due to said accident which wasbeyond the control of railway in unavoidable circumstances. No alternative was available to the railway except to wait the tracks are made free and after making massive efforts the railway track was found fit for operation only at 8.05 hour that is after 12 hour on 23.08.2016 and thereafter the train reached at Sealdah at 15.48 hour causing day of about 10 hour.

It has been further stated that there are many extraneous factors not under the control of railway like tampering with tracks, signaling, chain pulling, coaches and wagons, public agitation, law and order issues etc. which affects the railway operation adversely, so the railway administration does not grant the arrival ordeparture of trains at the scheduled times or at the specified times mentioned in the time table nor railway is accountable for any loss, inconvenience which may arise from delay and these had been mentioned in the printed time tables which is part of the written version. Further complainant is not a consumer within the meaning of C.P. Act, and has made a motivated story to get unjust and unlawful claim.

It appears OP No.1 (b) has stated that this Forum has no territorial jurisdiction to try the complaint as cause of action did not arise within the jurisdiction. Railway is in no way responsible for any act of God, war, accident, natural calamity or any other reason beyond its control and it has been published in time table in details. The composition of any train may be modified or varied at short notice and every effort is made to inform the public for unforeseen change in the schedule through media or other system. The Railway administrationdisclaims liability for any inconvenience, expense or damage resulting from errors in the time table or from delayed/cancelled trains.

The OP Jatra.com in his written version has stated that OP arrange for booking of airline and organizing tour as per users convenience in best possible rates by coordinating various services from various 3rd party service provider. Every person making transaction through online platform i.e. www.jatra.comis bound by the terms of use of website. The complainant having used the online platform has become user and has accepted terms of master user agreement. As per master user agreement the jurisdiction of one of courts may be ousted by agreement as per master user agreements,so this Forum is not vested with the jurisdiction over the territory where the parties to the complaint resides. The tickets were booked by complainant through computer system and system is based in Gurgaon, so there is no territorial jurisdiction of this forum. The complainant due to his own mistake has booked the ticket on wrong date and for this OP cannot be made liable. Further amount Rs. 2834 has already been refunded to the

Contd….P/5.

-:5:-

Complainant and the same has been accepted without any objection so this complaint is liable to be dismissed.

In this case both sides have adduced evidences by filing examination-in-chief and have also annexed some documents in support of their versions. On the basis of allegations and counter allegations following points are required to be considered.

POINTS FOR CONSIDERATIONS.

1. Is the complainant a consumer within the meaning of Consumer Protection Act, 1986?

2. Whether this Forum has jurisdiction to entertain and try the complaint or not as alleged?

3. Is there any deficiency in service by the OPs as alleged by the complainant?

4. Is the complainant entitled to receive the damages and other relief as claimed for?

DECISION WITH REASONS

Points No. 1 & 2.

These two points are taken up for discussions together to avoid repetitions. It has been alleged by OPs that complainant is not a consumer as per provisions of Consumer Protection Act. If definition of consumer as provided under section 2(1)(d) is considered then it appears – consumer means any person (i) who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment or includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, or

(ii)Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such services are availedof with the approval of the first mentioned person but doesnot include a person who avails of services for any commercial purposes.

Explanation:- For the purposes of this clause commercial purpose does not include use by a person of goods bought and use by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self employment.

Contd….P/6.

-:6:-

If clause (ii) of above definition is considered then it appears, complainant has purchased travail ticket by paying money to the OPs for the purpose of journey and to avail services of the OPs,so complainant falls within the purview of consumer,so he is entitled to make a complaint with the Consumer Forum.

Further according to provisions of Sec. 11 of The C.P. Act, a complaint shall be instituted in a District Forum within local limits of whose jurisdiction (a) The opposite party or each of the opposite parties where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gains.

Further where any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain provided that in such case either permission of the District Forum is given or the opposite parties who do not reside or carry on business or have a branch office or works for gain as the case may be, acquiesce in such situation or cause of action, wholly or partly arises.

Now come to the jurisdiction of this Forum. It appears from the cause title of the complaint that complainant is resident of Jalpaiguri under Katwali P.S in the district of Jalpaiguri. The OP No. 3 and 5 have their branch offices at Siliguri which falls within the jurisdiction of this Forum. Though other OPs i.e. OP No. 1, 2, 4 & 6 have their offices outside jurisdiction of this Forum but main contestants are contesting this complaint who are within the jurisdiction of this Forum. So this Forum has territorial jurisdiction to entertain this complaint. Accordingly these two points are decided in favor of the complainant.

Points No. 3 & 4.

These two points are taken up for discussion for the sake of convenience as both are inter-related. According to definition provided under section 2 (i)(g) of the Consumer Protection Act, deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature manner or performance which is require to be maintained by or under any law for the time being in force or has been under taken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

In the instant case it is admitted fact by the contesting OPs that complainant has purchasedthe Railway ticket for himself and his friend for travail on 22.08.2016 by Darjeeling Mail from New Jalpaiguri Railway Station to Sealdah and one reserved berth was allowed in S-4 and another in S-3. It is also admitted fact that one

Contd….P/7.

-:7:-

goods train derailed at Madina near Old Malda stationon 22.08.2016 as a result up and down trains stranded on the different railway stations due to blockage of both lines. As per OPsRailways the derail occurred at about 19.55 hour. The Railway authorities took steps to clear the line and train operation started on 23.08.2016 at about 8 hour in the morning and in this way it took about 12 hour for running of the train. For this reason the Darjeeling Mail which has started from New Jalpaiguri Station at 20 hour on 22.08.2016 reached Sealdah at 15.48 hour on 23.08.2016.It is also admitted fact that complainant has booked Air ticket by Spicejet from Kolkata to Portblair for himself and his friend and travel dated was 23.08.2016 by flight no. SG-251 which was to start at 11.55 hour. Due to late running of the Darjeeling Mail the complainant could not catch the flight on 23.08.2016.

According to complainant his first allegation is that due to deficiency in service by Railway authority he missed the flight for his tour from Kolkata to Portblair. Whereas it is allegation of the Railway Ops that it was unfortunate incident beyond their control and they have made their best efforts to clear the tracks for smooth running of trains but it took some times as incident occurred at night. It also appears it has been alleged by OPs that the information of incident was not within the knowledge of New Jalpaiguri Station.

OPs have further shown the documents of disclaimer which is mentioned in the time table also that punctuality and composition of trains as published/scheduled in the time table is duty of Railway administration but there are many extraneous factors not under the control of railway administration i.e. tampering with racks, signaling, chain pulling apparatus, coaches and wagons, public agitation, law and order issues,inclement weather, untoward incident etc. which adversely affects the railway operation. These have chain repercussions as such railway administration does not guarantee that trains will always starts or arrive at the time specified in the time table nor railway administration will be accountable for loss and inconveniencethat may arise from delay or detention.

 It is to be mentioned here that the incident occurred for derailed of goods train cannot be said to be caused intentionally though there may be manual fault regarding maintenance of tracketc. As public are mostly aware about such type of incident, so they must took precautions for any travel system to reach at any destination in such situation and for this reason railway authority cannot be said to suffer for deficiency in service. However it cannot be believed that that goods train derailed at 17.55 hour blocking railways tracks and information could not reach or would not be given to NJP railway station or other railway stations to make aware of the train passengers. If this is done the passengers who have urgent business may arrange any other systems in time.

   Contd….P/8.

-:8:-

So for as allegations against Spicejet and Jatra.com are considered then it has been alleged by complainant that he called on Spicejet at Customer Care for rescheduling of flight from 23.08.2016 to 24.08.2016 and also send e-mail at Spicejet customer care phone but did not get any reply and latter on phone told Spicejet has nothing to do it and if ticket is cancelled before two hours then there will be refund of Rs.7000/- and when he reached at ticket counter of Spirejetat Dum Dum Air Port and talked with them then they told to purchase new ticket. Thereafter complainant called at customer care of Spicejet on 30.08.2016 for cancellation of the return ticket then customer care told that Government tax will be returned i.e. amounting to Rs. 3000/- and from ticket counter at Air Port they told return would be Rs. 4408/- and it was transferred to complainant’s account.

Sofar as another allegation of complainant is thatwhile he was at Chandaneswar in Odisha on 27.08.2016 he downloaded Jatra apps on his mobile and booked through them a ticket on 28.08.2016 from Kolkata to Portblair on payment of Rs. 5915/- but due to inadvertence of network system booking was done for the date on 28.09.2016. Immediately within 90 minute he found out customer care number and made conference call where employee of Spicejet told Jatra.com for change of date and when complainant called on customer care of Jatra.com then Jatara.com told that it is not possible for them and even employee of Spicejet told that change of date is not possible and if ticket is cancelled then there would be return of Rs. 3683/- and if Rs. 12000/- deposited then flight date would be changed for 28.08.2016.The complainant has further stated that on 27.08.2016 at 11 hour flight fare on Spicejet app were Rs. 5100/- and on Jatra apps it was Rs. 5915/- with tax. When complainant told customer care of Jatra that Spicejet is providing Rs. 3683/- in his account but Jatra.com in place of Rs. 3683/- sent e-mail for Rs. 784/- only and on next e-mail Rs. 851/- and latter Rs.1281/- and last only transferred Rs. 2834/- in account of complainant on 02.09.2016. In the allegation it has been further stated that ticket supply by Jatara.com was not a ticket nor therewas mention RS. 5915/- on the ticket but it was a coupon ticket only. The Jatra.com did not take proper care for cancellation of the flight ticket of the complainant.

It has been submitted through Jatra.com that there was fault of the complainant and complainant has accepted the refund of Rs. 2834/- so complainant cannot raise further dispute and there is no deficiency in service. The Jatra.com has shown airline ticket cost at Rs. 5384/- and airline cancellation charge Rs. 2250/- and Jatra service fee of Rs. 300/- so after deduction of Rs. 2550/- return has been made for Rs. 2834/-. So there is no liability of Jatra.com at all.

Contd….P/9.

-:9:-

Complainant has furnished refund documents of Spicejet where it is mentioned base fare as Rs. 3900/- and taxes surcharge Rs.217/- that is refundable amount of Rs.3683/- and from Jatra.com for cancellation of flight dt. 28.09.2016 for total refund Rs.784/- and details are from Rs. 5384/- charges had been deducted Rs. 4300/- for airline charge and Rs. 300/- for Jatra charges.

From further documents it appears Jatra has sent refund message for return of Rs. 851/- then Rs. 1281/-and at last has refunded amount of Rs. 2,834/-. This shows Spicejet offered for return of Rs. 3,683/- and Jatra.com refunded only Rs. 2,834/- and there is difference of amount of Rs.8,49/- and this amount has not been refunded by the Jatra.com though Jatra.com has stated that convenience fee of Rs. 282/- and travel insurance fee of Rs. 249/- i.e. Rs. 531/- is non refundable component of ticket fare but it has not been supported or appears to be believable. So considering these circumstances there appears deficiency in service as well as unfair trade practice from the side of Jatra.com.

Further allegation of the complainant that Jatra.com has not provided proper ticket and had it been so, then there could have been refundable amount from the side of Spicejet as communicated or as paid from the side of Jatra.com. Another question raised from OP side is that two separate allegations have been made in one complaint which is not tenable and complaint should be rejected. If entire facts and circumstances of this complaint is considered then both allegations are interrelated as such it can be tried together. So far as non-cooperation from the side of Jatra.com for cancellation of flight ticket of complainant as alleged is considered then it appears what was within the ambit of Spicejet or Jatra.com have done but act of Jatra.com as mentioned above amounts to deficiency in service as well as unfair trade practice.

 In this complaint prayer of the complainant is to provide him free of cost to arrange travel from Calcutta to Portblair with joint liability of Spicejet and Rail Department and in default to provide Rs. 4408/- and for non-cooperation of Jatra.com and Spicejet customer care for damages of Rs. 25,000/- as he could not tour from Calcutta to Portblair but prayer for direction to provide free tour does not appear to be affordable by this commission, so this prayer cannot be allowed.

In the above mentioned facts and circumstances it appears to the commission that complainant is entitled for refund of Rs. 849/- from the date of filing of this claim petition i.e. 05.10.2016 till realization along with an interest @ 12% per annum and an amount of Rs. 20,000/- for mental pain, agony and harassment

Contd….P/10.

-:10:-

caused from the side of Jatra.com i.e. OPs No. 5 & 6 and litigation costs of Rs. 10,000. In the result these two points are also decided in favour of the complainant but in part.

Hence, it is,

O R D E R E D,

That Complaint Case being no. 110 (S) 2016 is allowed on contest against the OPs No. 3 (a) & (b) in part and dismissed against rest OPs.

The contesting OPs No. 3 (a) & (b) are here by directed to pay balance of Rs. 849/-(Eight hundred forty nine rupees) to complainant along with an interest @ 12% per annum from the date of filing of the claim petition i.e. 05.10.2016 till the date of payment. The contesting OPs No. 3 (a) & (b) are here by directed to pay an amount of Rs. 25,000/-(Twenty five thousand rupees) for damages and Rs. 20,000/-(Twenty thousand rupees) for mental pain, agony and harassment caused from their side and litigation costs of Rs.10,000/- (Ten thousand rupees) within 45 days from the date of this order failing which the OP No. 3 (a) &(b) shall pay further interest on this amount @ 12 % per annum from the date of this order till the date of realization. In default the complainant shall be at liberty to execute the order as per law.

Let a copy of this order be provided to the contesting parties free of cost.

  (Member) (Member) (President)

[HON'BLE MR. Sri Kanhaiya Prasad Shah]

PRESIDENT

[HON'BLE MRS. MALLIKA SAMADDER]

MEMBER

[HON'BLE MR. Shri Tapan Kumar Barman]

MEMBER