State Consumer Disputes Redressal Commission
Divisional Railway Manager, S.E.C.R. & ... vs Vikas Agrawal on 4 February, 2013
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Appeal No.FA/12/717
Instituted on : 05.12.2012
1.Divisional Railway Manager, S.E.C.R. Near Waltaire Gate, Fafadih, Raipur (C.G.)
2. Chief Commercial Manager (Refund), S.E.C.R. Bilaspur (C.G.), Divisional Railway Manager, South Eastern Central Railway. ..... Appellants. Vs Vikas Agrawal, S/o Shri Vishvendra Kumar Agrawal, R/o : Pawan Dauji's Bada, Gudhiyari, Raipur, Tehsil & District Raipur (C.G.) ...... Respondent. PRESENT :
HONʹBLE SHRI JUSTICE S.C. VYAS, PRESIDENT HON'BLE SMT. VEENA MISRA, MEMBER HON'BLE SHRI V.K. PATIL, MEMBER COUNSEL FOR THE PARTIES :
Shri D.L. Rathore, for appellants.
Shri Vikas Agrawal, respondent, present in person.
ORDER (ORAL) DATED : 04/02/2013 PER :‐ HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT.
This appeal is directed against order dated 08.11.2012 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.213/2010, whereby the // {PAGE } // complaint of the respondent/complainant against the appellants, has been allowed and the appellants have been directed to pay Rs.5,000/‐ by way of compensation for mental agony and Rs.2,000/‐ as cost of litigation to the respondent/complainant.
2. In nut shell, the facts of the case before the District Forum are that on 09.06.2009 respondent / complainant purchased a railway ticket for journey on 10.06.2009 by Amarkantak Express, train No.2814 from Katni to Durg as sleeper class and paid Rs.233/‐. Later on, it was observed by the respondent/complainant that the said ticket was not confirmed and no berth was allotted to him. He requested to T.T.I to provide a berth and when he refused, then the respondent/complainant approached to Chief Ticket Inspector's Office, but found that no one was there. Then, he came to Raipur by performing journey in ordinary class by purchasing another ticket and on next day on 11.06.2009 he claimed refund of amount of that ticket from the Station Master of Raipur. He was advised to send claim form along with original ticket by speed post.
Thereafter a claim was preferred by him accordingly, but the amount of ticket was not refunded for quite long time, then the consumer complaint was filed before the District Forum.
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3. The consumer complaint was resisted by the appellants/OPs on the ground that it was not maintainable before the District Forum as Section 13 of the Railway Claims Tribunal Act, 1987 provides for exclusive jurisdiction of the Tribunal in respect of refund of amount of tickets and therefore, the District Forum was not having jurisdiction. To entertain the complaint. Some other grounds were also taken.
4. Learned District Forum, did not agree with the defence taken by the appellants/OPs before it and allowed the complaint by directing the appellants/OPs to pay compensation to the respondent/complainant.
5. We have heard arguments advanced by both parties and perused record of the case.
6. Counsel for the appellants has brought to our notice the order passed by this Commission earlier on 21.07.2010 in Appeal No.194/2010 (South Eastern Central Railway, Through D.R.M. Raipur Division & another Vs. Kushalchand Jain) as well as Appeal No.230/2010 (Kushal Chand Jain Vs. South Eastern Central Railway, Through D.R.M. Raipur Division & another), whereby it was held by this Commission in paragraph No.12 as under :‐ "12. So far as the facts in the present case are concerned, it squarely fall under the provisions of Section 13(1)(b), which // {PAGE } // specifically provides for establishment of a Special Tribunal in respect of the claims for refund of fares. When a Tribunal is available for the claims for refund of fares and jurisdiction of any other Court or Authority has been barred specifically under Section 15 of the Railway Claims Tribunal Act, 1987 and the provisions of the Consumer Protection Act, 1986 being not in derogation of provisions of any other law, applicable for the time being in force, we are of the view that this being a simple complaint for refund of fare, so the complaint was not required to be entertained by the District Forum and no order should have been passed in such complaint, when application for refund is already pending before the Railway Authorities and specific jurisdiction, has been created by Railway Claims Tribunal for entertaining complaint regarding the claims for refund of fares, and the jurisdiction of other Courts and Authorities have been barred under Section 15 of Act, 1987."
7. Thus, it was ruled by this Commission earlier that jurisdiction of other Court or Authority have been barred under Section 15 of the Railway Claims Tribunal Act, 1987 and cancellation of ticket and refund are questions to be considered u/s 51 & 52 of the Railways Act, 1989 and come under the category of "statutory duty" for which no extra amount has been paid and so it is not a "service" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986. It has been observed that complaint was not maintainable before the District Forum. The facts of that case were also similar to the facts of the case in hand.
8. Respondent/complainant placed heavy reliance upon pronouncement of Hon'ble National Commission in the case of // {PAGE } // Northern Railways & Anr. Vs. Shalini Kapoor, III (2007) CPJ 78 (NC), which has also been referred by the District Forum in the impugned order, but in the facts of that case, the amount of ticket was already refunded by the Railway and only question to be considered is whether any deficiency in service has been committed by the Railway in deciding claim of refund belatedly. Thus, it appears that facts of that case were quite different.
9. Hon'ble Supreme Court in the case of General Manager Telecom Vs. M. Krishnan & anr. Civil Appeal No.7687/2004 reported in 2009 CTJ 1062 (SC) has ruled that when special remedy is provided under Statute, then remedy in the Consumer Protection Act, 1986 is not applicable to the complainant and he is required to approach the Authority, which has been referred by the Statute. That mandate is also applicable in the facts of the present case.
10. Orders passed in earlier cases, which were decided by us on the subject have not yet been set aside by Hon'ble National Commission and are having effect of precedence and are binding upon us unless we are convinced that interpretation of law, which was made by us was erroneous and is required to be corrected. No such position has emerged. Therefore, following precedence of this Commission itself, we // {PAGE } // are of the view that complaint of the respondent/complainant was not maintainable before the District Forum and was required to be dismissed.
11. In result, the appeal succeeds and is allowed. The complaint of the respondent/complainant filed before the District Forum, is dismissed. No order as to the cost of this appeal.
(Justice S.C.Vyas) (Smt. Veena Misra) (V.K.Patil) President Member Member /02/2013 /02/2013 /02/2013