Partha Kumar Basu, Member

This complainant petition is filed by the Complainant one Sri Prasanta Mondal of Village :Dagira, PO: Basuldanga, PS: Diamond Harbour, South 24 Parganas, West Bengal, PIN 743368 against the Chief Commercial Manager of Eastern Railway (OP1) at 3 Koilaghata Street, Kolkata 700001 and the Station Manager of Basuldanga (OP), Eastern Railway, PO: Basuldanga, PS: Diamond Harbour, South 24 Parganas, West Bengal, PIN 743368 (OP2) u/s 12 of the Consumer Protection Act 1986 in a matter of alleged deficiency in service for non-settlement of compensation claims consequent upon injury due to accident of his daughter aged around 2 ½ years

The gist of the case as averred by the complainant states that the minor female child of the complainant while moving being at the lap of her paternal grandfather on 10.10.2016 to cross the level crossing fell victim of the incident when the boom barrier level crossing no. 34T fell down upon the child. A case was registered by the GRP police and the complainant also spent Rs. 2,22,216/- at hospital for medical treatment of the child who is now unable to lead normal life and pursue education due to fallout of such accident. As adduced by complainant as evidence, the grandfather was a registered vendor of Eastern Railway for selling fruits and the vendors card was exhibited as Annexure 1. In the consumer complaint, the complainant sought directions on the OPs to reimburse the hospital expenses for Rs. 2,24,796/- alongwith a compensation of Rs. 10 lacs for future medical expenses of the victim alongwith cost of litigation.

The OPs resisted the complaint by filing a written statement before this Commission in which they stated that this Commission had no jurisdiction to entertain the complaint in view of fact that the victim was not supposed to travel through railway premises. The learned counsel for the OPs also argued orally that there are specific claim tribunals and acts to deal with such cases who has exclusive jurisdiction to entertain the complaint in question. The OP Railway also in their W/V, BNA and submissions claimed that the accident pertains to a road accident case. The Ld. counsel further stated that the instant case involved an accident due to a matador van hitting the boom of the level crossing and hence complainant should have tried for compensation under the Motor vehicle Act.

Furthermore, the OPs claimed that the exhibited vendor card and the relevant statements in complaint petition on affidavit depicts that the grandfather was a licensed fruit seller. Hence the complainant does not fall under the definition of consumer as per Section 2(d)(i) of the Consumer Protection Act, 1986 under any scope of imagination. As a result no case can be made out for awarding the compensation as stated in the consumer complaint and hence, the same should be dismissed. 

The State Commission meanwhile allowed the OPs to file W/V against payment of cost, as there was some delay in filing the same. The dispute was examined against the entire material on record and a thoughtful consideration was given as per arguments advanced before this bench.

It is observed that the Railway Acts do not have any exclusionary implication, because Section 3 of the Consumer  Protection Act, 1986 is an alternative remedy for the consumer to contest claims. There is no conflict between the Consumer legislation and the Railways Acts. But the main thrust of the arguments advanced on behalf of the OP emphasises that the consumer commission had no jurisdiction to entertain the consumer complaint in question. A plain reading of the provisions states whether the consumer commission shall also have the jurisdiction to deal with the matters, involving railway accidents. The issue has come up for consideration from time to time before the Hon'ble Apex Court and this Commission as well. It has been observed that the Consumer Protection Act  is a special legislation, enacted to provide better protection for the interests of consumers in diverse fields. It is true that for specific sectors such as banking, finance, insurance, supply of electricity, entertainment etc.,appropriate mechanism has been laid down in the respective statute, to provide suitable relief to the consumers as per requirements.  However, the Consumer Protection Act is a beneficial legislation, specially enacted for the protection of the consumers and provides an additional remedy in the shape of Section '3' of the Consumer Protection Act, which clearly lays down that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force. Based on the discussion above, it is held that the consumer commission do have the jurisdiction to deal with the present case and hence, the consumer complaint cannot be dismissed on the ground of lack of jurisdiction by the consumer commission

It is further observed that the complainant/beneficiary does not fall within the definition of consumer in want of any cogent proof that he was a consumer of the OP. The registered vendor of Eastern Railway holding valid licence of Rs 405/- as licence fees for selling fruits for the period 02.10.2016 to 30.10.2016 does not come under the purviewof a consumer under any scope of imagination. The Railways have nowhere denied that these are not the documents issued by them. The Railways have not alleged anywhere that the complainant had made any incorrect licence card.  But this licence to hawk materials in railway does not fall within the definition of consumer as per Sec 2(d)(i) and 2(d)(ii) of the Consumer Protection Act 1986 by any means since this document is neither regarding sales or buy of any movable goods nor regarding hiring or availing of any services for a consideration. It is held, therefore, that the complainant cannot be given privileges of a consumer, based on the pivotal document. Therefore, for the purpose of the present proceedings, the complainant does not fall within the definition of consumer, as per factum of the case.

                                                                                              Ordered

This Commission has not gone into the merit or demerits of the case. But after going through and considering the records and documents and the grounds stated therein it appears that the complainant is not falling under the definition of Consumer as per Consumer Protection Act 1986. Based on the foregoing discussions, it is held that there is adequate reason in the contention of the OP and the complaint petition is thus ordered to be dismissed being not maintainable.

However, liberty is given to the Complainant to take recourse of such other remedy as available under law. 

Copy of this order may be provided free of cost to the parties as per CPR.

The Final Order will be available in the following website www.confonet.nic.in.

    Dictated and corrected by me.

     (Partha Kumar Basu)

               Member