A K GUPTA vs UMMED MAL JAIN

-THIS revision is directed against the order dated 3. 4. 2007 of Consumer Disputes Redressal Commission Rajasthan, Jaipur allowing appeal against the order dated 22. 5. 2005 of a District Forum and ordering the petitioner-railways to pay a penalty of Rs. 2,000 to the respondent for not complying with the Commission''s order dated 11. 5. 2005.

FACTS giving rise to this revision lie in a narrow compass. Respondent filed a complaint before the District Forum inter alia alleging that he along with his wife got reservation in IInd class sleeper in train No. 9672a from Ratlam to Ajmer for 4. 5. 2004. Due to fair, there was heavy rush at the Railway Station, Ratlam. Persons not having reservation got into IInd class reserved coach and the respondent, thus, could not occupy the reserved berths. During journey, he had to face inconvenience. This complaint was dismissed by the District Forum by the order dated 26. 10. 2004. Appeal against the Forum''s order filed by the respondent was allowed by the State Commission by the order dated 11. 5. 2005 holding the railways to be deficient in service and directing it to pay Rs. 2,000 as compensation within a period of two months to the respondent. RP No. 2269 of 2005 filed by railways against the State Commission''s order was dismissed by this Commission by the order dated 16. 9. 2005. Petitioner filed petition bearing No. 43 of 2005 seeking compliance of the order dated 11. 5. 2005 and that petition was dismissed by the District Forum by the order dated 22. 5. 2005 on the ground of the order dated 11. 5. 2005 having been complied with by the railways on 12. 4. 2006. Order under challenge would show that the State Commission was of the view that as the payment pursuant to the order 11. 5. 2005 was to be made within two months, the payment made on 12. 4. 2006 was not in compliance of the said order and railways are thus, to be penalized under Section 27 of the Consumer Protection Act, 1986 (for short the ''act'' ). We have heard Mr. Rohit Jain for the petitioner and the respondent.

Respondent has pointed out that Petition No. 43 of 2005 under Section 27 was filed on 26. 8. 2005. Obviously, by that date R. P. No. 2269 of 2005 filed against the order dated 11. 5. 2005 had not been dismissed by this Commission. Reply to the said Petition No. 43 of 2005 (copy at pages 21 to 23) to which our attention has been drawn by Mr. Jain, Advocate would show that along with application dated 6. 3. 2006, the petitioner-railways had annexed a cheque No. 191500 dated 10. 2. 2006 for Rs. 3,000. Amount awarded pursuant to the order dated 11. 5. 2005 had, thus, been tendered on 6. 3. 2006 and on 12. 4. 2006 by the railways. In our view, action initiated either under Section 27 or 25 of the Act is in the nature of execution proceedings. Since the awarded amount of Rs. 3,000 had been tendered during the pendency of execution proceedings itself, the Fora below could have imposed only the cost of execution proceedings and not the penalty of Rs. 2,000 under said Section 27. Order of State Commission thus can''t be legally sustained and deserves to be set aside. Decision in V. P. Balasubramaniam v. Sri J Aianjaney A Associates and Anr. , I (2001) CPJ 328=2001 (2) CPR 248, relied upon by the respondent being distinguishable on facts has no applicability to the facts of present case. Since the respondent was compelled to seek execution of the order dated 11. 5. 2005 as the awarded amount was not paid within the time allowed, an amount of Rs. 1,500 deserves to be awarded by way of cost in execution against the railways.

RESULTANTLY, aforesaid order dated 3. 4. 2007 is set aside. Petitioner-railways are directed to pay cost of Rs. 1,500 to the respondent within eight weeks of the receipt of the copy of this order. R. P. disposed of.