Madhya Pradesh

StateCommission

A/22/123

MRIDUL MUDGAL - Complainant(s)

Versus

UNION OF INDIA - Opp.Party(s)

SH.D.JOSHI

20 Mar 2024

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

FIRST APPEAL NO. 123 OF 2022

(Arising out of order dated 10.01.2022 passed in C.C.No.548/2013 by District Commission, Bhopal-1)

 

1. MRIDUL MUDGAL,

    S/O SHRI M.K.MUDGAL,

 

2. SMT. SURUCHI MUDGAL,

    W/O SHRI MRIDUL MUDGAL

BOTH R/O 51, ABHIRUCHI PARISAR,

NEW SUBHASH NAGAR,

BHOPAL (M.P.)                                                                                                  ….       APPELLANTS.

 

                   Versus

 

1. UNION OF INDIA,

    THROUGH ITS GENERAL MANAGER,

    WEST CENTRAL RAILWAYS,

    JABALPUR (M.P.)

 

2. INDIAN RAILWAYS CATERING AND

    TOURISM CORPORATION LTD (IRCTC)

    9^TH FLOOR, BANK OF BARODA BUILDING,

    16, PARLIAMENT STREET, NEW DELHI-1                                                    ….    RESPONDENTS.   

 

                                             FIRST APPEAL NO. 458 OF 2022

(Arising out of order dated 10.01.2022 passed in C.C.No.548/2013 by District Commission, Bhopal-1)

 

UNION OF INDIA (MINISTRY OF RAILWAYS)

THROUGH DIVISIONAL COMMERCIAL MANAGER,

WESTERN CENTRAL RAILWAY,

DRM OFFICE, HABIBGANJ, BHOPAL (M.P.)                                                    ….       APPELLANT.

 

                   Versus

 

1. MRIDUL MUDGAL,

    S/O SHRI M.K.MUDGAL,

 

2. SMT. SURUCHI MUDGAL,

    W/O SHRI MRIDUL MUDGAL

    BOTH R/O 51, ABHIRUCHI PARISAR,

    NEW SUBHASH NAGAR,

    BHOPAL (M.P.)

 

3. INDIAN RAILWAYS CATERING AND

    TOURISM CORPORATION LTD (IRCTC)

    9^TH FLOOR, BANK OF BARODA BUILDING,

    16, PARLIAMENT STREET, NEW DELHI-1                                                    ….    RESPONDENTS.   

 

BEFORE:

                  HON’BLE SHRI A. K. TIWARI                      :   ACTING PRESIDENT

                  HON’BLE DR. SRIKANT PANDEY               :   MEMBER

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COUNSEL FOR PARTIES :

                         Shri Deepesh Joshi, learned counsel for the complainants.

                Shri Deepesh Shukla, learned counsel for the opposite party no.1-Railways.

                None for the opposite party no.2-IRCTC.

 

O R D E R

                                       (Passed on 20.03.2024)

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

 

                   The complainants as also the opposite party no.1-Railways  have filed appeals against the order dated 10.01.2022 passed by the District Consumer Disputes Redressal Commission, Bhopal-1 (for short ‘District Commission’) in C.C.No.548/2013, whereby the District Commission has allowed the complaint filed by the complainants.

2.                The complainants have filed First Appeal No.123/2022 for enhancement of compensation whereas the opposite party no.1-Railways have filed First Appeal No.458/2022 for setting aside the impugned order. Since both appeals arise out of same order, therefore, they are taken up together and are being disposed of by this common order. Facts of the case are taken from First Appeal No.123/2022 unless otherwise stated.

3.                In short, facts of the case are that the complainants on 14.05.2013 had booked railway tickets through online portal of IRCTC from the office of the sub-agent and reserved two First Class AC seats in train no. 12650 Karnataka Sampark Kranti Express for travelling from Bhopal to Bangalore on 08.06.2013 for a sum of Rs.9153.47/-. It is

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submitted that they received a SMS confirmation on their mobile phone regarding confirmation of their two seats and that the seat numbers will be allotted to them after preparation of final charts on the date of journey itself.  It is alleged that when they reached station to board the train on 08.06.2013 they were shocked to find that their names were missing from the list of travelers from any of First Class AC bogies. When they searched they found that two seats were allotted to them in Second AC coach and the seats were not next to each other and instead they were different berth far away from one another. It is submitted that after put in lot of exertion and spending the whole day in sorting out appropriate seats they finally managed to get flight tickets from Indore to Bangalore on 09.06.2013 costing Rs.21,000/-. The complainants therefore alleging deficiency in service on part of Railways filed a complaint before the District Commission seeking relief.

4.                The opposite party-Railways in their reply before the District Commission submitted that the complainants booked the ticket through IRCTC in First AC which were in waiting list. On that day First AC Coach was not attached to the train due to unavoidable circumstances.  The complainants got their waiting list tickets confirmed through VIP quota. If they don’t want to continue the journey, they could have got the refund of full fare as per refund rules. As per clause 306 of Indian Railway

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Conference Association, Coaching Tariff No.26, Part-I, Volume-I, the Railways not given any guarantee for reserved accommodation and for any inconvenience caused in case of non-availability of seats in reserved class and for non-attachment of coach, the Railways cannot accept any claim for compensation. It is therefore prayed that the complaint be dismissed. 

5.                The District Commission allowing the complaint directed the opposite party-Railways jointly and severally refund the journey fare Rs.9,153/- with interest @ 9% p.a. from the date of purchase of ticket till payment within a period of two months. The opposite parties were also directed to pay jointly and severally Rs.50,000/- as compensation towards mental pain and physical inconvenience caused to the complainants within a period of two months along with costs of Rs.5,000/- It is further directed that if the aforesaid amount of compensation and costs is not paid within a period of two months, the amount shall carry interest @ 9% p.a. from the date of filing of complaint till payment.  

6.                Heard learned counsel for the parties. Perused the record.

7.                Learned counsel for the complainants argued that the District Commission completely ignored the evidence led by the complainants that due to negligence of the railway authorities the complainants had to board the flight on the next day and the flight ticket had cost them Rs.21,000/-

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therefore on account of loss sustained, the complainants were entitled to Rs.21,000/-. He argued that the District Commission failed to appreciate the documents filed by the opposite party-Railways wherein it is clearly mentioned that if the alternative accommodation is not accepted to them, they are allowed full refund. But the Railways did not even follow their own rules and compelled the complainant to file the instant complaint even for the refund of the cost of tickets which ought to have been refunded to the complainants. He therefore prayed that the impugned order deserves to be modified.

8.                Learned counsel for the opposite party-Railways argued that the complainants have wrongly stated that they received information that their seats confirmed in First AC coach and therefore they left the house to board the train whereas in the SMS it is clearly mentioned that in Coach no. A-1 seat no. 8 & 10 were allotted to them. Their seats are in Second AC Coach A-1 and not in First AC. On the date of journey, First AC Coach was not attached to the train due to unavoidable circumstances, and the passengers were allotted seats as per availability of seats in the train. If they were not interest to travel, they were free to get the refund of fare. He argued that in case of confirmation of waiting tickets, there is no rule that the passengers will get seats closed to each other as seats are used to be allotted to the wait listing passengers as per availability of seats. The

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complainants got their seats confirmed through VIP quota and the seats allotted to them 8 and 10 were not too far. The Railways through SMS informed the complainants about their seats. If they don’t want to travel they could have get the refund of fare as per rules. He argued that the District Commission has erroneously allowed the complaint and he therefore prayed for setting aside the impugned order.

9.                Having heard learned counsel for the parties and having gone through the record as also impugned order we find that the complainants booked their railway ticket online on 14.05.2013 for travelling on 08.06.2013 from Hazrat Nizamuddin to Yeshvantpur by train number 12650 Karnataka Sampark Kranti Express in 1A and the boarding station is also shown as H.Nizamuddin as is evident from the copy of ticket (C-1). In the said ticket there is nothing that boarding station is Bhopal.  Their ticket is in waitlist 5 & 6. From the document D-6, it is evident that they got it confirmed through VIP quota i.e. High Official Recommendation (HOR) and they were allotted seat no. 8 and 10 in coach no.A-1 (D-3). Railways pleaded that on that day since there was no 1A coach in the train therefore, the passengers were accommodated in 2A as per availability.

10.              The contention of the complainants that they were informed by SMS-1(C-5) that their reservation is confirmed in 1A, however when they reached station, they shocked that their names were missing from the

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passengers of the First Class AC bogies. After much deliberation, it was discovered that they had been allotted seats in the Second Class AC coach instead of their earlier confirmed in First Class AC coach. From the SMS-2 (C-5) filed by the complainants themselves it is clear that they have already been informed that their reservation is confirmed in A1 coach and seats 8 & 10 were allotted to them, thus their pleading that when they reached station and then only they came to know that their reservation is confirmed in second AC coach cannot be accepted. Before reaching station they had already knowledge that their reservation is confirmed in Second AC A1-8 & A1-10. It is also not the case of the complainants that other passengers were got there tickets confirmed in First AC coach and they were not accommodated nor they had filed any such list. On the contrary, the Railways have specifically mentioned that on that date the First AC coach was not attached to the train.

11.              So far as the contention of the complainants that the seats allotted to them were not the seats which were next to each other and instead they were different berths from one another is concerned, two persons are to be allotted two different berths and not the same one. Berth no.8 and 10 allotted to them were just opposite berths next to each other in one coup, thus this contention of the complainants is also cannot be accepted.

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12.              In the complaint as also in the appeal the complainants have stated that the Railways ought to have refunded the fare. If they were not interested to travel they could have got the refund as per rules, it is not expected from the Railways to refund fare until and unless the tickets were not produced for refund. Also, in case of online reservation, for refund of fare, TDR has to be submitted. It is also pertinent to mention here that the cases with regard to refund of railway fare are not maintainable before the Consumer Commissions constituted under the Consumer Protection Act, 1986 and can only be entertained by the Railway Claims Tribunal under the Railway Claims Tribunal Act, 1987. 

13.              Section 13 of the Railway Claims Tribunal Act, 1987 deals with jurisdiction, powers and authority of claims tribunal which reads thus:

                   13. Jurisdiction, powers and authority of Claims Tribunal—

(1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any civil court or a Claims Commissioner appointed under the provisions of the Railways Act—

 (a) relating to the responsibility of the railwayadministrations as carriers under Chapter VII of the Railways Act in respect of claims for—

                           (i)      compensation for loss, destruction, damage,   deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;

                         (ii)       compensation payable under section 82A of the Railways Act or the Rules made thereunder; and

                       (b)  in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.

(1A)  ………

(1B)   ……………………………..

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Section 15 of the Railway Claims Tribunal Act, 1987 clearly bars the jurisdiction of any other court which reads thus:

 

15. Bar of jurisdiction—On and from the appointed day, no court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in sub-sections (1), (1A) and (1B) of Section 13.

 

On bare perusal of the aforesaid sections of the Railway Claims Tribunal Act, 1987 (RCT Act) it is clear that as per Section 13 (1)(b) of the RCT Act, the Railway Claims Tribunal has all such jurisdiction, powers and authority to entertain the complaints made for refund of fares. Similarly Section 15 of the RCT Act, bars the jurisdiction of any other court or authority to exercise any jurisdiction, powers or authority in relation to the matters referred to in Section 13 (1), (1A) and (1B).

14.              From the aforesaid provisions of The Railway Claims Tribunal Act, 1987 it is clear and established that in case of refund of fare under Section 13 (1)(b) of the RCT Act, only Railway Claims Tribunal have jurisdiction and powers to entertain such complaints and not any other court as Section 15 of the RCT Act, clearly bars the jurisdiction of any other court or authority.

15.              So far as the submission with regard to flight ticket is concerned, the complainants have filed a copy of email dated June 7,2013 for the flight ticket in which the date of booking was shown as 08Jun13 and date of travelling was shown as 09Jun13. How, is it possible that the

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ticket booked on 08Jun13 was received by them via email on 07Jun13.  This creates doubt. This shows they had already booked the flight tickets earlier and already made up their mind to travel through flight.

16.              Be that as it may. The Railways had filed copy of Indian Railway Conference Association, Coaching Tariff No.26, Part I (Volume I) wherein in Clause 306 it is specifically mentioned:

          ^^306 vkjf{kr LFkku dh xkjaVh u gksuk %&       jsy iz’kklu fdlh xkM+h fo’ks"k ls vkjf{kr LFkku pkgs lhV] 'kkf;dk] dEikVZesaV] lokjh fMCck] eky fMCck gks] dh xkjaVh ugha nsrk rFkk ekaxh xbZ xkM+h  esa  zzzzLFkku miyC/k u gksus vFkok fMCck u yxk, tkus ds dkj.k gksus okys vlqfo/kk gkfu o vfrfjDr O;; ds fy, fdlh eqvkots dk nkok Lohdkj ugha djsxkA^

 

                   On bare perusal of the above it is clear that the Railways have not given any guarantee for reserved seat or berth in a particular train and will not accept any claim with regard to loss or inconvenience caused to non-attachment of coach.

17.              Thus it cannot be said that the Railways can be held responsible if for unavoidable reasons or circumstances, any particular coach is not attached in a particular train. Even otherwise, in the case in hand, the complainants were provided alternative accommodation but they did not avail the same. In case, they did not avail the same, they could have got the refund via filing TDR in case of online booking but they also did not opt for the same.

 

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18.              So far as the allegation of deficiency in service is concerned, ‘deficiency’ is defined under Section 2(1)(g) of the Consumer Protection Act, 1986 which reads thus:

2(1)(g) “Deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

 

19.              The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. There could not be any presumption with regard to the willful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving deficiency in service would always be upon the person alleging it. Here in the instant matter, since on the date of journey, there was no first AC coach in the train, the Railways after confirming the wait list tickets of First AC of the complainants accommodate them in Second AC coach i.e. A-1 Seat no. 8 & 10.  The complainants themselves did not avail alternative accommodation and chose not to travel.

20.              In the instant case, the complainants failed to discharge their burden to prove that there was deficiency in service on part of the opposite party-Railways within the meaning of Section 2(1)(g) of the Act. Even if

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allegations made in complaint are taken on their face value, then also it clearly emerges that there was no willful fault, imperfection, shortcoming or inadequacy in the discharge of duty on part of opposite party-Railways which could be termed as ‘deficiency in service’ under Section 2(1)(g) of the Act.

21.              In view of the above discussion, we find that in the instant case, the complainants failed to discharge their burden to prove that there was deficiency in service on part of the opposite party-Railways within the meaning of Section 2(1) (g) of the Act. We are of a considered view that in the facts and circumstances of the case, the complainants are not entitled to get any relief. The District Commission has gravely erred in allowing the complaint. The impugned order passed by the District Commission cannot be sustained. Accordingly, it is hereby set-aside. Consequently, the compliant is dismissed.

22.              In the result, First Appeal No. 123/2022 filed by the complainants is dismissed and the First Appeal No. 458/2022 is allowed. No order as to costs. 

23.              This order be retained in First Appeal No.123/2022 and a copy be placed in First Appeal No.458/2022.

 

 

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

                      Acting President                       Member