Subba Reddiar vs MANAGING DIRECTOR, THIRUVALLUVAR TRANSPORT CORPN. LTD.

THIS is an appeal by the Complain ant.

THE short case of the Complainant is that on 21.9.92 he booked four tickets for himself and his family members for a journey on 25.9.92 from Pondicherry to Bangalore with the option to board the bus at Tindivanam. THE bus was cancelled on account of some agitation, in parts of Tamilnadu. THE Complainant who was not given full information inspite of his steps regarding the bus service on the particular date, was put to a lot of inconvenience on account of the cancellation. He, accordingly, prayed the District Forum to direct the Opposite Party to pay him a compensation of Rs. 11,000/- for all the extra expenses he had to incur and also for mental agony, physical strain and disappointment. The Opposite Party''s case is that the Appellant did not come forward to surrender the tickets on 25.9.92 at Pondicherry for obtaining reimbursement of his tickets and that there was no deficiency in service.

After hearing the parties, the District Forum dismissed the complaint by order dated 17.8.93. Aggrieved by that decision the Complainant preferred this appeal.

IN order to find out whether there is any deficiency in service, we have to go through the details of the averments of each of the parties. The specific case of the Complainant is as follows:- Upon deciding to travel to Bangalore on the night of 25.9.92 he reserved four tickets on 21.9.92; on account of the agitation the Complainant went to the T.T.C office, Pondicherry on 24.9.92 and wanted to make sure whether the bus will be operated as scheduled; he was answered in affirmative. On the 25th he went to Tindivanam Depot where he had to board the bus to ascertain the latest position. At first he could not get any clear reply, but later he was told that it was doubtful. He then proceeded to the Pondicherry Depot and asked for the cancellation of the tickets and refund of the amount. He was told that the refund would be subject to 25% deduction, and he was assured that the bus would proceed as scheduled. Action upon that assurance the Complainant went to the Tindivanam bus depot at 8.15 p.m.; he was told that the bus was expected any time from Pondicherry. But at 8.30 p.m. he was informed by the Depot Manager that the trip was cancelled. Then he had to make costly alternative arrangements.

IN the counter, the Opposite Party admits the cancellation of the trip but denies that the Complainant enquired at the Thiruvalluvar Bus Stand on 24.9.92 at Pondicherry about the operation of the bus on 25.9.92. He has also denied that the Complainant went to Pondicherry bus depot on 25.9.92 and asked for cancellation of tickets. The Opposite Party even went to the extent of saying that the Complainant never approached any officer at Pondicherry or at Tindivanam about the operation of the bus. No evidence was let in by any of the parties. But the Complainant has come with a detailed, cogent and plausible recital of the sequence of events. It stands the test of the probability. The reply of the Opposite Party is cursory and has the complexion of a flat denial to escape liability. The last and crucial sentence "The Complainant never approached any officer in Pondicherry or in Tindivanam about the operation of the bus" is against all probabilities and, therefore, we are satisfied that we can safely accept the case as spelt out by the Complainant. Let us now state the law on the point. One has to make a clear distinction between a traveller with reservation and a traveller without reservation. In respect of the latter, the contract of transport starts when the passenger is allowed into the bus. In respect of the former, the contract is concluded at the time of reservation. If the bus operator cancels the trip, he is liable to pay compensation unless such a cancellation occurred on account of vis major, that is to say, circumstances beyond his control and which make the travel risky for the passengers. Public agitation with use of force is certainly one such circumstance. But it is to be proved that the situation at the time of cancellation was such that any reasonable operator would cancel the trip. Such a proof is difficult to be adduced after efflux of time. That is why any operator offering reserved seats, should record the fact of cancellation and its reasons at the time of decision itself, and send the same to the concerned Transport Officer. If that Officer does not express any objection to the course of action, such a record which could be summoned from the Transport Office would serve as evidence of bona fide reason for cancellation. The Opposite Party has not been able to give any proof of vis major. Therefore, the cancellation of reserved service remains non-justified and amounts to deficiency.

IN this case, there is also another form of deficiency. The Appellant came without minding the pain on the morning of 25.9.91 to Pondicherry to ascertain whether the bus would be operated or not and was prepared to surrender his tickets and to get refund, he was assured that the bus would be plying and he was offered refund of money subject to 25% deduction as per the normal conditions as if the cancellation was only for the convenience of the Complainant. It is admitted by both the parties that there has been dislocation of bus service from 22.9.92 onwards and that there was improvement of the situation from the night of 24th, that in the morning of 25th September. 1992, some buses were plying. The situation was one of uncertainty. The proper course for the bus operator in such a circumstance is to cancel all reservations, intimate the fact to the concerned persons and refund spontaneously the full money received, leaving the bus to run with the passengers who turn up at the time of departure. IN this case the operator refused to give full refund even when he was asked for. He opted for shifting the consequence of uncertainty on the passengers with a view to avoiding loss or gain. This is a clear case of deficiency of service.

THE next point which arises is what is the relief the Complainant is entitled to? In his complaint the Complainant has stated that he had to spend a lot of money for his travel from Pondicherry to Tindivanam, for taxi from Chendur to Tindivanam, that he came ultimately to Bangalore via., Madras, that his purpose of meeting his son could be achieved only on 27.9.92 and that too for a short while, that he had to spend one night in Bangalore with all the expenses involved thereby, that during the whole period he was subject to mental agony, physical strain and disappointment. He, therefore, asked for a compensation of Rs. 10,000/- for agony, physical strain and disappointment and Rs. 1,000/- for the extra expenditure he had to incur. It would have been in the interest of the operator to announce at the time of reservation itself the amount of liquidated damages in case of cancellation in the absence of vis major proved. In the absence of such a clause, we have to determine the amount of compensation. For that purpose we have to bear in mind that in a contract of this kind the operator does not know personally the passenger, his status, the purpose of his journey. So compensation is to be awarded taking as yardstick, the damage for a normal person travelling in normal circumstances. The actual damage sustained by an extraordinary person in an exceptional circumstance would be against justice and is not necessary for the protection of the consumer in general. We, therefore, come to a conclusion that a compensation to the tune of Rs. 1,500/- would meet the ends of justice.

In the result, the appeal is allowed and the order of the District Forum is set aside. The Opposite Party is directed to pay the Complainant an amount of Rs. 1,500/- as compensation and he is further directed to pay costs amounting to Rs. 500/-. Appeal allowed.