Madhya Pradesh

StateCommission

A/14/211

DINESH SETH - Complainant(s)

Versus

UNION OF INDIA - Opp.Party(s)

28 Nov 2022

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

                              

                                    FIRST APPEAL NO. 90 OF 2014

(Arising out of order dated 05.12.2013 passed in C.C.No.374/2013 by the District Commission, Gwalior)

 

1. UNION OF INDIA, THROUGH GENERAL MANAGER,

    NORTH CENTRAL RAILWAY,

    ALLAHABAD, U. P.

 

2. SENIOR RAILWAY MANAGER (COMMERCIAL),

    NORTH CENTRAL RAILWAY, JHANSI (U.P.)

 

3. REGIONAL MANAGER, CENTRAL RAILWAY,

    TANSEN NAGAR, GWALIOR (M.P.)                                                               …          APPELLANTS.

 

Versus                

DINESH SETH,

S/O LATE SHRI KRISHNAKANT SETH,

R/O HEERA APARTMENT,

PARAKH JI KA BADA, DAULATGANJ,

LASHKAR, GWALIOR (M.P.)                                                                               …         RESPONDENT.                                     

 

                                    FIRST APPEAL NO. 211 OF 2014

(Arising out of order dated 05.12.2013 passed in C.C.No.374/2013 by the District Commission, Gwalior)

 

DINESH SETH,

S/O LATE SHRI KRISHNAKANT SETH,

R/O HEERA APARTMENT,

PARAKH JI KA BADA, DAULATGANJ,

LASHKAR, GWALIOR (M.P.)                                                                        …          APPELLANT.

 

Versus                 

1. UNION OF INDIA, THROUGH GENERAL MANAGER,

    NORTH CENTRAL RAILWAY,

    ALLAHABAD, U. P.

 

2. SENIOR RAILWAY MANAGER (COMMERCIAL),

    NORTH CENTRAL RAILWAY, JHANSI (U.P.)

 

3. REGIONAL MANAGER, CENTRAL RAILWAY,

    TANSEN NAGAR, GWALIOR (M.P.)                                                         …         RESPONDENTS

 

BEFORE:

                  HON’BLE SHRI A. K. TIWARI                    :      PRESIDING MEMBER

                  HON’BLE DR. SRIKANT PANDEY             :      MEMBER 

                  HON’BLE SHRI D. K. SHRIVASTAVA       :      MEMBER 

 

COUNSEL FOR PARTIES :

      Shri S. K. Dubey, learned counsel for the complainant.

      None for the opposite parties.

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                                                            O R D E R

                                       (Passed On 28.11.2022)

                   The following order of the Commission was delivered by A. K. Tiwari, Member:    

                         Aforesaid appeals are arising out of the order dated 05.12.2013 passed by the District Consumer Disputes Redressal Commission, Gwalior (For short ‘District Commission’) in C.C.No.374/2013. Appeal no. 90/2014 has been filed by the opposite parties-Railways for setting aside the impugned order whereas Appeal no.211/2014 has been filed by the complainant  for enhancement of compensation awarded by the District Commission.

2.                Since aforesaid appeals are arising out of same order, they are taken up together and are being disposed of by this common order.  This order shall govern disposal of aforesaid two appeals. For convenience facts of the case are taken from the First Appeal No.90/2014 unless otherwise stated.

3.                In brief, facts of the case are that the complainant had booked a ticket for himself and his family members vide PNR No.8563976058 for journey from Gwalior to Jammu on 02.06.2013 in Train No.12919 Malwa Express. He was allotted Berth No.1, 2, 3, 4 and 38 in B-1 (AC-3 coach).  It is alleged that just after starting the journey before Morena, AC of the coach stopped working of which complaint was made to coach attendant and TC but the AC was not repaired till the end of the journey.  The complainant

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therefore alleging deficiency in service on part of opposite parties filed a complaint before the District Commission seeking refund of fare Rs.5,050/-compensation of Rs.75,000/- along with costs of Rs.5,000/-.

4.                The opposite parties-Railways denying the allegations made in the complaint stated that AC was not stopped functioning in the said coach B-1 from Gwalior to Jammutawi. The cooling of AC was increased on complaint of less cooling. After New Delhi staff of Northern Railway was working and since AC was working properly, therefore, the Northern Railway was not made a party to the case. Other than the complainant no other co-passenger made complaint in this regard.  It is therefore prayed that the complaint be dismissed.

5.                The District Commission after appreciation of evidence available on record allowed the complaint and directed the opposite parties to make payment of fare of AC-3 coach to the complainant after deducting the fare of reserved sleeper coach. Compensation of Rs.5,000/- along with costs of Rs.1500/- is also directed to be paid within a period of 30 days. It is against this order both parties have filed the aforesaid appeals. 

6.                Leaned counsel for the complainant argued that the District Commission has not considered the evidence and documents on record while passing the order. The District Commission has also not considered this aspect that in the month of June the complainant along with his family

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members had to travel without AC facility even for paying the same.  He and his family members suffered physical hardship and mental agony only because of deficiency in service on part of opposite parties. The District Commission has awarded compensation of only Rs.5,000/- which is very meagre amount looking to the hardship suffered by him and his four family members.  He therefore prayed that compensation given by the District Commission deserves to be enhanced at least to Rs.75,000/- and Rs.10,000/- as costs as District Commission has committed grave error.

7.                Learned counsel for the opposite parties-Railways argued that the District Commission has erroneously passed the impugned order as the District Commission has not considered the reply and affidavits filed by the opposite parties. He has submitted no other passenger except the complainant has made any complaint regarding non-functioning of AC in B-1 coach. The complaint was lodged in complaint book in Ludhiyana i.e. after 15 hours of journey. The cause of action arose at Ludhiana and their the staff of Northern Railway is working and the Northern Railway was not made a party to the case, therefore the cause of action did not arise within the territorial jurisdiction of District Commission, Gwalior. Mahendra Godwal, Electric Mechanic of AC coach was present in the train from its starting station till the end station who had given details of AC in his log book. He has nowhere stated about non-functioning of AC.  If the AC of the said coach

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was not functioning, the other passengers must have made complaint about it. The cooling of AC cannot be increased or decreased on the instructions of any one person.

8.                He has further submitted that if the complainant wants refund of fare or refund of difference amount of Sleeper & AC coach, he has to approach Railway Claims Tribunal. The order passed by the District Commission is barred by Section 13, 15, 28 and 43 of Railways Act. For this reason also, the impugned order deserves to be set-aside. If the AC of the coach was not working, the complainant could have lodged a complaint in the complaint book available with the Coach Attendant at Morena itself. If the AC of coach stopped functioning, all the passengers had to suffer and not only one. It is therefore prayed that the impugned order be set-aside and appeal filed by them be allowed.

9.                Heard learned counsel for the parties and perused the material available on record.

10.              To substantiate the claim and counter claim, both sides filed their respective proof affidavits.  The complainant has filed two documents C-1 copy of ticket and C-2 copy of complaint while the opposite parties-Railways have filed two documents, R-1 the reservation chart and R-2 copy of log book of AC coach.

 

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11.              It is the grievance of the complainant that on 02.06.2013 during journey from Gwalior to Jammutawi, AC of B-1 coach was not functionng and despite repeated complaints, it was not repaired till the end of journey and due to which he and his family members suffered a lot of physical hardship and mental agony in summer season, which amounts to deficiency in service and unfair trade practice on part of opposite parties.  The complainant has filed his affidavit in support of his contention.

12.              On the contrary, it is the stand of the opposite parties-Railways that AC of B-1 coach was properly functioning and no passenger other than the complainant made any complaint about it. The Electric Mechanic of AC was present from the starting station of the train till the end station of the train and he maintained the log-book which has been filed in the record. The opposite party has filed affidavit of Shri P. K. Sharma, Divisional Commercial Manager, North Central Railway, Jhansi and Mahendra Godhwal, Senior Assistant, Senior Section Electric Engineering, Western Railway, Indore. It has been submitted that there is no deficiency in service on part of opposite parties.

13.              The allegation of the complainant regarding inconvenience and hardship due to non-functioning of AC in B-1 coach was denied and it was submitted on behalf of Railways that AC was properly functioning in the said coach. However, from the record we find that the Railways did not bother to

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file duty chart of the employees who were on duty on that particular days in the train.  The opposite parties have filed affidavit of Divisional Commercial Manager, who has no knowledge about the factual position. He has stated in his affidavit that on complaint being made by the complainant of less cooling and after complaint conductor called AC mechanic who increased the cooling.  On the other hand, Mahendra Godwal, AC mechanic in his affidavit has stated that AC was functioning properly in B-1 coach from Gwalior to Jammutawi and nowhere it stopped functioning. He has nowhere stated in his affidavit that on complaint being made he increased the cooling of AC. Thus we find that there is contradiction in both the affidavits.

14.              It is pertinent to mention here that the opposite parties Railways have not filed duty chart of the persons, who were on duty in B-1 coach on 02-03.06.2013. No affidavit of TTE or coach attendant has been filed to prove their stand.

15.              So far as the objection raised by the opposite parties in paragraph 9 of their appeal, that the District Commission is barred to decide the complaints regarding refund of fare and only Railway Claims Tribunal has jurisdiction to entertain such complaints is concerned, we find that it is not a case where the complainant sought refund of fare. He has filed a complaint against the Railways alleging deficiency in service and unfair

 

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trade practice that even after charging for AC coach, AC facility was not provided during the entire journey.

16.              Section 33 of Railways Act, 1989 clearly provides that Railway Rates Tribunal has been abolished w.e.f. 26.05.2017 and its powers have been conferred to Railway Claims Tribunal. Section 38 of Railways Act deals with powers of the Tribunal. Section 39 of the Railways Act provides that the Central Government make a reference to the Tribunal in respect of any of the matter specified in Section 37 and where any such reference is made in respect of any such matter, the Tribunal shall make an enquiry into that matter and submit its report thereon to the Central Government. Section 70 of the Railways Act says Prohibition of undue preference.

17.              The present matter is not triable by the Railway Claims Tribunal. In the instant case, the District Commission has ordered for refund of difference amount of AC coach and sleeper coach as AC of the AC coach was not functioning and not the actual fare, therefore it is not a case to be triable by the Railway Claims Tribunal. Section 43 of the Railways Act is also not applicable in the instant matter.

18.              Therefore, after thoroughly examining the facts and circumstances of the case from all angles, we are of the considered view that definitely, the complainant along with his family members would have

 

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suffered serious mental agony and hardship since the AC of AC coach B-1 was not functioning from boarding station till destination. It attributed deficiency in service on part of opposite parties. We find that the amount awarded by the District Commission towards compensation Rs.5,000/- for the inconvenience caused by the complainant and his four family members appears to be on lower side and needs to be enhanced.

19.              Accordingly we direct that the opposite parties-Railways shall refund the difference amount of AC coach and Sleeper coach of PNR No.8563976058 to the complainant. Amount of compensation of Rs.5,000/- is enhanced to Rs.25,000/- and costs of Rs.2,000/- will be paid in place of Rs.1,200/- to the complainant by the Railways. The impugned order is accordingly modified to the extent indicated hereinabove.

20.              In the result, First Appeal No. 90 OF 2014 filed by the Union of India and others-Railways is dismissed and the First Appeal No. 211/2014 filed by the complainant is partly allowed. No order as to costs of these appeals.

21.              This order be placed in First Appeal No. 90/2014 and a copy be placed in First Appeal No. 211/2014.

 

           (A. K. Tiwari)     (Dr. Srikant Pandey)   (D. K. Shrivastava)

     Presiding Member          Member                      Member