UNION OF INDIA Vs. RAMSWAROOP CHANDIL

JUDGEMENT

(1.) This is an appeal filed by Union of India and others against the order dated 20.12.1994 passed by District Consumer Disputes Redressal Forum, Gwalior in their Case No.1177/93, wherein the District Forum has held that the complainant had in his possession, in his box, the original circular journey ticket No.005880, but he was not allowed to break open the lock of the box and produce the ticket, and was wrongfully forced to pay additional Railway fare and excess charge for four persons. As a result, the Forum directed the appellant Railway to pay to the complainant Rs.2,384/- being the fare, and excess charge recovered from him, compensation of Rs.20,000/- for humiliation and other in conveniences suffered. Advocate's fee Rs.1,100/- and proceedings expenses Rs.500/-.

(2.) This appeal was earlier dismissed by this Commission as time-barred. But in Revision Petition No.668 of 1995, the Hon'ble National Commission set aside this Commission's order and remanded the appeal to be disposed of on merits after affording a full and fair opportunity to both sides to make their submissions.

(3.) Respondent had already submitted his written arguments on 7.4.1995. Appellant's Advocate, Mr. S. C. Godha's written arguments were filed on 17.1.1997. Arguments of both the parties were heard also. The undisputed facts of the case are as under: (i) That the complainant had booked a valid round tour ticket No.005880 from Gwalior to Rameshwaram for four persons and this ticket is pradarsh P-I. (ii) That on 14.7.1993, ticket checking staff alongwith Station Master, Tanjavur came inside the compartment of the train in which, the complainant and his party were travelling and checked their tickets. (iii) That the complainant and his party were detrained at Tanjavur Railway Station by the above staff. (iv) That the Railway checking staff thereafter, same day, recovered Rs.2,384/- from the complainant and his party vide Excess Fare Receipts No.523722, 393169, 523963 and 480253, each for Rs.596/-. (v) The entries made by the ticket checking staff in the excess fare receipts are to the effect that the concerned passengers, having been found at Tanjavur, travelling in train No.6101, with xerox copy of circular Ticket No.055880 Ex. Gwalior to RMM are charged fare Rs.333/- and excess charge Rs.263/- total Rs.596/-. (vi) That the round tour Ticket No.005880 and the aforesaid four excess fare receipts have been filed before the District Forum by the complainant himself. (vii) That the circular ticket No.005880 bears certain endorsements made at Railway Station Rameshwaram etc. , as under: rmm/6113/rmm Sd. TC RMM rmm/6116/rmm-MDV Sd. TC RMM b/j at MDV by 758 Pass Sd. TC MDV c/j from MDV by 6531 A of 21.7.1993 Sd. TC MDV 5. The appellants have not denied or rebutted the following statements also, of the complainant given in his affidavit dated 24.1.1994. (i) That he got the original ticket stamped by Station Master on his arrival at Rameshwaram which is the evidence of his having in his possession, the said circular ticket in original, at the time of checking. (ii) That the complainant himself paid the amount of Rs.2,384/- for the four excess fare receipts.6. The disputed point is, whether, alongwith me photocopies of the ticket, the complainant had in his possession the original ticket No.005880 also, but was forcibly restrained, from taking it out of the box and was detrained, harassed and wrongfully charged extra. The complaint of the complainant as supported by affidavit is asunder: "xx xx xx" 7. The first argument of the appellant is that the Consumer Forum had no jurisdiction to hear a complaint for refund of fare as barred by Sections 13 and 15 of the Railway Claims Tribunal Act. This was the preliminary argument before the Forum which has been discussed in their order in para 6 and we find no reason for disagreement. Since the allegations are detrainment and wrongful restraint from opening the box, it is not simply a case of refund of fare. It is a case of deficiency in service requiring payment of due compensation for sufferings undergone by a party of four senior citizens, apart from refund of fare. National Commission had held that the passengers travelling by Railway trains on payment of the stipulated fare charged for the ticket are "consumers" and the facility of transportation by rail, provided by the Railway Administration is a "service" rendered for consideration, as defined under the Act. I (1991) CPJ 10 (NC ). "deficiency" means any fault, imperfection shortcoming or inadequacy in the quality, nature and manner of performance. There are several orders of various Commissions awarding compensation for various kinds of "deficiencies" in service by the Railway, alongwith directions for refund of fare, if the question of refund of fare was also simultaneously involved. Thus, the main issue is "deficiency" and not "refund of fare". Case No.211/sc of 1991 of UPSCDRC reported in I (1993) CPJ 503 is almost similar to the instant case. The facts of that case were as under : "complainant purchased Railway ticket for journey from New Delhi to Kanpur - Issued ticket in waiting list-Name shown in Coach No.5 in waiting list - No officer of opposite party at station at the time of departure - complainant occupied vacant seat-after one and half hours TTE appeared - told complainant that waiting list ticket is not valid - charged full amount of new ticket and penalty". The UPSCDRC held that these facts indicate high handedness of Railway Authorities and directed the Railway Authority to return sum of Rs.205/- as additional price charged for another ticket and awarded Rs.200/- by way of compensation. " 8. In 1994 (1) CPR 77, the Orissa SCDRC has awarded consolidated amount of Rs.500/- towards differential amount of ticket and compensation. In 1994 (1) CPR 484, this very Commission also has awarded consolidated compensation apart from refund of berth reservation charges.9. Second argument is that the Gwalior Forum had no territorial jurisdiction to entertain this complaint. This argument also has no force. Sub-section (2) of Sec.11 of the Consumer Protection Act deals with territorial jurisdiction of the District Forum. It provides that a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, the opposite party or each of the opposite parties at the time of the institution carries on business or has a branch office or the cause of action, wholly or in part arises. The term "branch office" defined under the newly inserted Clause (aa) in Sec.2 (1) of the Act means, (i) any establishment described as branch by the opposite party or (ii) any establishment carrying on either the same or substantially the same activity as that carried on by the head office of the establishment. This is an undisputed fact that the Railway Administration had its branch office at Gwalior Railway Station. The cause of action in consumer transaction arises generally at the place where goods are bought or services are hired, or where goods are delivered or supplied or services are rendered and thus the jurisdiction is determined accordingly. In 1991 (2) CPR 578, Delhi, it was held that the Delhi Forum had jurisdiction to entertain the complaint because the payment of ticket at Delhi, constituted a part of cause of action. In the instant case combined ticket for four persons was purchased at Gwalior Railway Station. Thus, Gwalior Forum certainly had territorial jurisdiction to entertain this complaint.10. Third argument is that a photocopy of a ticket being not a valid document, collection of fare and excess charge was justified under Sections 54 and 138 of the Railway Act. But in this case the allegation is that besides having photocopies of the ticket, the complainant had in his possession the original ticket also, which he was restrained from producing, by not allowing him to break open the lock of his box, in which the said ticket was kept.11. Fourth argument is that the respondent neither himself gave any statement nor produced any witness. The undisputed facts of the case as stated in earlier paragraphs required no statement either from him or from any witness. And the contents of his affidavit regarding wrongful restraint and harassment at the hands of the Railway officials have not been rebutted by the Railway, hence the question of adducing additional evidence did not arise. Evidence by affidavit is legal and sufficient, 1994 (3) CPR 300.12. Fifth argument is that only one person filed the complaint but relief has been wrongly granted to four persons. This argument is also meaningless. By the signature of the complainant on the Circular Ticket No.005880 and also by his name having been recorded as 'ticket holder' it is established that the ticket was purchased by him and according to the entries on the ticket, it was meant for "four adult senior citizens" whose names were not recorded. Similarly, his un rebutted affidavit establishes that the amount of Rs.2,384/- for excess fare was also paid by the complainant himself. Lastly, in the complaint, the complainant had prayed that he be paid the amount of Rs.2,384/- and compensation for all the four. In their reply dated 29.3.1994 filed before the Forum, the Railway did not raise this point, hence this argument cannot otherwise also be raised at this appellate stage. Besides this there are instances of directions to pay consolidated compensation - II (1991) CPJ 407 1994 (1) CPR 484 (MPSCDRC ).13. The last argument is that the respondent has failed to establish deficiency in service on the part of the Railway. In this regard, the respondent has filed his affidavit in which in paras 3,4 and 5 he has supported the allegations made in the complaint. What to say of rebutting these allegations by counter affidavit or otherwise, appellants have not said even a word indicating that these allegations are false or fabricated or that the complainant was not restrained from opening the box or that police was not called for or that they were neither abused nor detrained five hours. So much so, that appellants have not said anything about entries also, made by the Ticket Collectors on Circular Ticket No.005880 at Rameshwaram and other Railway Stations. They have not expressed, even any doubts, about the genuineness of these entries. Appellants have evasively stated only one sentence in reply, that contents of para 5 are denied. This is no reply in respect of such serious allegations, made in detail supported by an affidavit. Allegation supported by affidavit and not controverted by opposite party is acceptable.1992 (2) CPR 521.14. There is nothing on record to show whether any enquiry was got conducted by the appellants, into the allegations made by the complainant. There is no statement of anybody connected with the incident of detraining and charging of excess fare. There is no enquiry report of any kind. It appears that the reply dated 29.3.1994 has been filed in routine course without any enquiry and that is why no specific denial even, has been made. It is height of callousness.15. This Ticket No.005880 has not been misused by anybody else, nor is there any plea by appellants to that effect, doubting its misuse. Similarly, there is no reason to doubt the entries made by Railway officials on this ticket at Rameshwaram etc. , subsequently, nor have the appellants stated these entries to have been fraudulently made. Nor has the Railway expressed any doubts about the genuineness of this Ticket No.005880 filed by complainant as Pradarsh "p-1".16. Hence, if the appellants have not shown any doubts about the genuineness of this ticket Pradarsh "p-1", or about entries on this ticket, or about its misuse by some other persons, then it is certain that nobody else, except the complainant, could have been in possession of this Ticket on 14.7.1993 also. And therefore, the big question is, if so, why would the complainant not have produced it before the checking staff and paid a heavy sum of Rs.2,384/-. Natural reaction is that there must have been some constraint or restraint of some kind. All the four were senior citizens of whom two were ladies. Naturally such persons would not like to take a fight with a united group of persons, at an unknown far away place, inhabited by persons speaking a different language, Hon'ble National Commission has directed that Consumer Disputes Redressal Forums will be failing in their duty under the Act, if they did not interpret the facts placed before them. I (1991) CPJ 182 (NC ).17. On a perusal of the four excess fare receipts, we find that these receipts are not in a serial i. e. , are coming from different receipt books. Their Nos. are 523772, 393169, 523963 and 480253. Besides, we find that these receipts are prepared under three different hand writings, bearing three different signatures, at the places meant for signature of Ticket Collector. This establishes that there were at least three railway officials exercising the powers of Ticket Collectors. present on the ocassion, besides the other Railway staff who would also naturally be presumed to have been there, surrounding these old persons.18. Therefore, in the absence of any kind of rebuttal, or even specific denial, there is no reason to disbelieve the complainant that these old persons were not allowed to break open the lock of the box and show the original ticket kept inside. Hence, this appeal is dismissed and the order of the District Forum is maintained. The appellants are directed to pay in addition Rs.2,000/- as cost of this appeal to the respondent.19. On account of high-handed manner in which the complainant and his party were dealt with, we direct that a copy of this order be sent to the Chairman, Railway Board for taking suitable action against the erring Railway staff concerned.