ORDER
J.K. Mehra, J. (Member)
1. The Petitioner has brought this revision feeling aggrieved against the order passed by the State Consumer Disputes Redressal Commission, Tamil Nadu at Chennai, accepting the appeal of the General Manager, Souther Railways, Madras – 600 003. The facts briefly stated are that the Complainants are the old couple, the husband is at 77 years and the wife is at 73 years. The wife is a heart patient. They had reserved two berths for journey from Madras to Karur on 18th April, 1994, and also obtained confirmed reservation for the return journey on 24th April, 1994 from Karur to Madras Central by the Kochin Express. While the journey from Madras Central to Karur was as scheduled and uneventful, it was not so one their return journey and they were faced with problems. The first problem was that they found their names were missing from the reservation chart and on contacting the Railway Officials they were informed that they had no reservation. On their producing the confirmed reservation tickets issued by the Railways for that very day by that very train, they were asked to take seats in Cabin-A but not in Cabin-B, which was the coupe originally reserved for them. After the train had got into motion the TTE on being asked to provide accommodation to the old couple failed to do so which lead to some heated exchange of words between them. The wife who was the first Compliant became sick on coming to know of the non-availability of the berth and was emotionally upset. The TTE, as alleged, did not care for their predicament and left them with one berth in Cabin-A. This whole epiosed caused mental strain and inconvenience to the old couple, and it is further alleged that the wife (the first Complainant) became emotionally upset and sick as a consequence of this. On reaching Madras the Complaints gave notice to the Respondents, the Railways, and, in return, they only received a letter from the Additional General Manager of the Railways regretting for the inconvenience caused to them, but did not deal with their claim for refund and compensation for inconvenience. Having failed to get redressal of their grievances the Complainants filed a complaint before the District Forum under the Consumer Protection Act. The Respondents contested the claim of the Complainant and their plea before the District Forum was that there was an urgent message for provision of the coupe for a VVIP at the last minute and as such the coupe allotted to the Complaints had to be cancelled and given to the VVIP. No particulars of the VVIP are mentioned nor any chart to show or even the message whereby the coupe was requisitioned was produced or brought on record by the Railways. They denied that the health condition of the Complainant No.1 was the direct cause f sudden cancellation or the change of allotment of reservation. They also stated that as the accommodation to the couple had to be cancelled the TTE incharge, in an effort to alleviate their hardship, allotted to the couple one berth. The Railways did not plead any other defence nor did they refer to any rule in their reply which could justify their action.
2. The District Forum, after taking into all the documents and records including the confirmed reservation ticket returned a finding of deficiency of service and directed refund of fare and costs of Rs. 250/-, apart from Rs. 10,000/- towards compensation.
3. In their appeal before the State Commission, Southern Railways, for the first time relied upon the Rule 306 hereunder quoted and contended that the Railways do not guarantee reserved accommodation. The Railways have not pleaded any force-majure or any internal or external emergency which may compel the State to resort to the extreme action of cancelling all bookings in preference to the movement of the troops and/or essential supplies etc. The Railways have also not shown any rule which allows them to cancel the confirmed reservation of a citizen to accommodate any VVIP. It will be appropriate to note that Respondent neither before the District Forum nor in reply to the notice of the Complainants raised any plea on the basis of Rule 306. Rule 306 reads as under:
“306. Reserved accommodation not guaranteed:
Railway Administration do not guarantee reserved accommodation whether seats, berths, compartments, coaches or carriages by any particular train and will admit no claim for compensation for inconvenience, loss or extra expenses due to such accommodation not being provided or attached to trains by which asked for”.
4. The said Rule does not deal with cancellation of the reserved accommodation nor does it give Railways unbridled powers to cancel confirmed reservations. Moreover, the said Rule only protects Railways against any argument that the Railways are bound to guarantee reserved accommodation. It is very interesting to note that no endorsement or indication is printed on the face of or at the back of the tickets that even confirmed reserved seats can be denied to the passengers holding confirmed ticket issued by the Railways not is there any indication of or reference to Rule 306 on the face of or back of the ticket. Impliedly, it is contended that the said rule be read as a condition of the contract between the parties. Moreover, it is not the case of the Railways’ inability to guarantee reservation. It is a contract of carriage and in every contract parties have to be ad idem. There is not evidence that at any time the complainants were made aware of or put on notice of such a right of the carrier (i.e. Railways) as has been for the first time pleaded in appeal. Having given confirmed reservation on a particular train and the passenger reporting on that train at the given time and place, he could not have been deprived of accommodation except for special reasons beyond the control of the Railways, as have been noticed above. Not rule has been brought to our notice which enabled the Railways to cancel the confirmed reservation tickets of any passenger only to accommodate some other passenger in his place nor is any rule pointed out whereby any VVIP passenger can deprive another bona-fide passenger holding confirmed reservation of his right. Such deprivation of confirmed booking at the eleventh hour has been rightly held to be amounting to deficiency in service by the District Forum. Moreover, as already noticed, no plea based on Rule 306 was ever raised before the District Forum nor any such argument was advanced nor did the Railways in their reply to the complaint raised any such plea. This plea appears to be only an after thought and Railways are also estopped from raising this pleafor the first time in appeal. We, therefore are of the considered opinion that the State Commission has erred in setting aside the order of the District Forum. The order of the State Commission is, therefore, set aside and findings of the District Forum regarding deficiency of service are confirmed. However, we feel that both the Complainants having completed journey by the same train, cannot claim full refund of the entire fare. AT best, they could ask for return of the reservation money or charges for reservation. For the inconvenience and the harassment faced by them during the journey they have rightly been compensated by the District Forum. We, therefore, modify the order of the District Forum only to the extent of quashing refund of full fare. Rest of the order of the District Forum is confirmed. The railways will also pay costs of this Revision Petition which are assessed at Rs. 2,000/-. The Revision Petition is disposed of as above.