Per Shri Narendra Kawde, Hon’ble Member

          This complaint was taken on Board for hearing and disposal from the sine-die list.

2.       Complainant Nos.1&2 were the minor daughter and son of the deceased Smt.Sujata Sanjay Bhave, who died due to knocking down by a local train and filed this consumer complaint through their maternal uncle Mr.Sanjay Mohan Karandikar alleging deficiency of services against the opponents, namely, General Manager, Central Railway, CST, Mumbai, as opponents have allegedly failed to pronounce sudden and unscheduled arrival of local train and that too without blowing the horn or without any display on regular indicator.  The important question requires our consideration in this consumer complaint is that whether relationship of consumer and service provider subsists between passenger, authorisedly holding season pass and the Railway Authorities.

Case of the complainants in brief

3.       Mrs.Sujata Sanjay Bhave, mother of complainant Nos.1&2 was a bonafide pass-holder of the local train for regular commutation from Thane to CST, Mumbai.  On 14/02/1996 Mrs.Sujata S. Bhave (in short ‘deceased passenger’) was knocked down by the local train of the opponents at Thane Railway Station, who later on died on 20/02/1996 due to alleged negligence and defective service rendered by the opponents.  Mrs.Bhave was in regular employment of KEM Hospital, Mumbai as ‘Clerk-cum-Typist’ and she used to regularly travel on daily basis from Thane Railway Station upto Dadar Railway Station via CST Mumbai bound fast local train from Central Railway.  The regular train which was to be boarded by the deceased passenger usually used to arrive on Platform No.6 and sometimes on Platform No.4.  Deceased passenger was waiting for regular up train on Platform No.5 and was anxious to know whether fast train was arriving on Platform No.6 or Platform No.4 (Platform No.5 & Platform No.6 are connected).  All the passengers of this CST bound local train were as usual anxiously looking towards Kalyan side by standing on Platform No.5.  However, suddenly, Ambernath bound fast local train bearing No.DA-1 coming from CST Mumbai entered on Platform No.5 with high speed and that too without blowing horn and knocked down several commuters including deceased passenger.  Deceased passenger sustained serious head injuries and therefore, along with other injured passengers was first taken to Thane Civil Hospital and subsequently, shifted to Smt.Sunitadevi Singhania Hospital and later on to KEM Hospital, Mumbai.  Unfortunately, Smt.Sujata Bhave died on 20/02/1996 due to severe injuries.

4.       It is further alleged that on the date of incident Platform Indicators at Thane Railway Station were out of order and there was no announcement whatsoever about arrival of the down train from CST Mumbai by the Railway Authorities i.e. opponents.  Utter confusion was created and commotion arisen as train arriving on Platform No.5 is normally not visible to the passengers standing at Platform till train reaches the Platform as there is a cabin at the side of CST Mumbai which creates obstacle and block the view of arriving train.  Motorman of the local train of DA-1 was rash and negligent who also failed to blow horn to caution the stranded commuters and entered into the platform with abnormal speed knocking down the deceased passenger amongst other lady passengers causing head injuries resulting to her death.  Deceased passenger was a bonafide passenger at the crucial time who was holding a second class railway pass bearing No.14813 between Byculla and Thane with validity for period 05/02/1996 to 04/03/1996.  Deceased passenger was the only bread-earner of the family as father of the complainant Nos.1&2 pre-deceased her.  Deceased passenger was earning Rs.6,000/- per month and at the time of death she was around 40 years of age.  Cruel death of deceased passenger was a great shock to the complainants resulting into acute mental agony and suffering in their younger age depriving of their right to motherly love, affection and care.

5.       Initially, after the incident of death, complaint bearing No.OA 9700004 of 1997 was filed before the Railway Claims Tribunal, Mumbai claiming compensation, but said complaint was withdrawn on 29/06/1997 on the advice that Railway Claims Tribunal had no jurisdiction to entertain death claim.  Thereafter, present consumer complaint was filed under the provisions of Consumer Protection Act, 1986 praying for compensation of Rs.19,95,000/- as legal notice issued to the opponents failed to meet any response.

Defence of the opponents

6.       Opponents/Railway Authorities have generally denied the contentions and claim of the complainants by filing written version.  However, admitted to have happened the accident on 14/02/1996 on Platform No.5 at Thane Railway Station due to Down Train DA-1 while passing through Platform No.5 stating that Mrs.Sujata S. Bhave and other passengers who were leaning at the edge of Platform No.5 and therefore, they met with an accident.  Announcement of arrival of the train made at 08.40 a.m. and they relied on the statement of Mr.Kirtikumar Nargeram Panchal.  Deceased passenger met with an accident due to her own act of negligence and denied negligence on the part of Motorman and Guard as they were diligently discharging their duties.  Consumer complaint is beyond the jurisdiction of the Consumer Fora as it involves determination of complicated question of facts and law which cannot be satisfactorily determined in summary inquiry.  Detailed scrutiny and assessment of documentary evidence would be necessary which can be dealt with by a competent Civil Court.  Further, it is stated that this complaint is not maintainable at all as the said accident is not covered by Section 124 and/or Section 124A of Railways Act, 1989.  The claim was initially filed before the Railway Claims Tribunal, Mumbai for Rs.2 Lakhs by the complainants.  However, subsequently, complainants have withdrawn said claim on the ground of jurisdiction.  Another important point raised in the written version is about limitation.  Furthermore, complainants have not adduced any evidence in support of their allegations to prove negligence on the part of the Railway Administration or their servants by which liability can be fixed against the opponents.

7.       We have heard Learned Counsel Mr.Sanjay Gholve for the complainants and Learned Counsel Mr.P.H. More for the opponents a/w. Mr.Tushar Khande, Chief Law Assistant of opponents.

Arguments of Learned Counsel of the complainants

8.       Learned Counsel of the complainants brought to our notice the judgements of Hon’ble National Commission on the point of jurisdiction to try and settle this consumer dispute.  The complainants have relied on authorities of Hon’ble National Commission – (i) the order dated 05/05/2011 passed in Revision Petition No.1725/2009 (Union of India & Anr. V/s. Savitaben Sumabhai Patel & Ors.) (ii) Revision Petition No.864/2006 in the matter of Smt.Vinaya Vilas Sawant V/s. Union of India decided on 29/11/2007; (iii) Revision Petition No.72/2001 decided on 16/09/2013 in the matter of Smt.Nirmal Devi Chopra V/s. Union of India & Ors.; (iv) First Appeal No.602/1993 decided on 24/01/1997 in the matter of Union of India & Ors. V/s. Nathmal Hansaria & Anr.

9.       Hon’ble National Commission in Revision Petition No.864/2006 has held that Section 128 of the Railways Act, 1989 save the right of the person to claim compensation payable under Section 124 or Section 124A under the provisions of any other law for the time being in force.; but no person shall be entitled to claim compensation more than once in respect of the same accident.  Sub-Section 2 of Section 128 provides –

“Nothing in sub-Section (1) shall affect the right of any person to claim compensation payable under any contract or scheme providing for payment of compensation for death or personal injury or for damage to property or any sum payable under any policy of insurance.”

10.     It was also observed by Hon’ble National Commission that Section 3 of the Consumer Protection Act, 1986 specifically provides that these provisions are in addition to and not in derogation of any other law for the time being in force.  It was also mentioned in the body of the judgment that the Consumer Fora can exercise jurisdiction under the Consumer Protection Act, 1986 when there is no specific bar.  Citing the ruling of Hon’ble Apex Court in the case of Kishor Lal V/s. Chairman, Employees’ State Insurance Corporation (2007) IV SCC-529 if different Fora have jurisdiction to entertain the dispute with regard to same subject, jurisdiction of the Consumer Fora would not be barred and the power of Consumer Fora to settle the dispute cannot be negated. 

11.     Learned Counsel of the complainants invited our attention to the various documents filed by the complainants in support of their claim, namely, extract of Assistant Station Master Diary dated 14/02/1996 to substantiate the incidence of accident and serious injuries sustained by deceased passenger, which also indicates other injured fellow passengers, Police Panchanama and statements of fellow passengers and those volunteers who assisted in the crisis.  Photocopy of Railway Season pass bearing No. No.14813 valid for the period 05/02/1996 to 04/03/1996 issued by the opponents, photo identity card of Brihanmumbai Municipal Corporation issued by KEM Hospital which bears employee No.3083088 showing name of deceased passenger together with her designation as “Clerk-cum-Typist” is available on record.  Additional document showing membership of KEM Hospital and Sheth G.S.M. College Employees Credit Co-operative Society bearing account number of the deceased passenger are on record.  (All these documents have not been challenged by the opponents.) 

Arguments of Learned Counsel of the opponents

12.     Opponents relied and requested to read and take into account the statements of Mr.Kirtikumar N. Panchal, who at that point of time rendered voluntary assistance to the injured.  Going through carefully the deposition of Mr.Panchal, it is observed that the Motorman of the incoming train DA-1 did not blow the horn while entering the Platform No.5.  Train knocked down the ladies who were standing on Platform No.5.  Motorman took the train ahead and then was blowing the horn and halted the train on Platform.  Moreover, another statement of Mrs.Pushpa J. Nagori, injured co-passenger deposed before the Railway Claims Tribunal is available on record.  It is clearly stated in para 2 of the said statement that Ambernath bound fast train entered into Platform No.5 in a great speed even without blowing horn and knocked deceased passenger and other ladies causing serious injuries to her and other lady co-passengers.  It is also stated that on the date of accident, the Platform Indicators at the Thane Railway Station were not working and there was no announcement about arrival of DA-1 train which was coming to Platform No.5.  Sum and substance of the statements recorded while conducting Panchanama and thereafter, revealed that lady passengers along with deceased passenger were standing on the Platform No.5 to check about arrival of up train from Kalyan side.  Nobody could notice the sudden arrival of DA-1 Down Train from CST Mumbai to Ambernath through Platform No.5 as everybody’s attention was towards Kalyan side.  Nobody either heard the announcement or seen indicator to display arrival of this down train at Platform No.5.  This has led to the commotion/confusion amongst the passengers and the train DA-1 knocked down the lady passengers including deceased passenger.

13.     Learned Counsel of the opponents further argued that the complainants would not have succeeded to claim compensation more than Rs.2 Lakhs as normally it is admissible in the case of death when the claim is adjudicated and decided by the Railway Claims Tribunal and therefore, said complaint was withdrawn from the Railway Claims Tribunal and filed this consumer complaint.  The complainants are not entitled for compensation under Section 124 and 124-A of Railways Act, 1989 as due to own negligence the deceased passenger met with serious injuries resulting into death later on and no deficiency whatsoever as alleged by the complainants can be attributed for death and therefore, no compensation can be claimed.  Grievance before the Railway Claims Tribunal, Mumbai was at the evidence stage when it was withdrawn by the complainants as applicants/complainants realized at that stage that they are going to loose the case after examining the witnesses to the accident.

Findings

14.     On going through the record, documentary evidence and pleading of the parties, we are of the opinion that initial onus has been discharged unequivocally by the complainants since deceased passenger was a bonafide passenger, who unfortunately met with an accident and later on succumbed to the injuries.  There is no credible evidence led by the opponents/Railway Authorities to prove that the Motorman of DA-1 train blown required horn signal and any announcement was made to that effect with display of indicator installed on the Platform for the benefit of public.  There is no affidavit evidence of the concerned Motorman or the Guard to that effect.  We have already discussed provisions of Section 128 of the Railways Act, 1989 (supra) which provides saving of certain right of the person for claiming compensation.  Therefore, it is open for the complainants to knock the doors of the Consumer Fora under Section 3 of Consumer Protection Act, 1986 for proper settlement of the consumer dispute.  Withdrawal of the complaint from Railway Claims Tribunal, Mumbai, per se, could not amount to bar from filing consumer complaint under the provisions of Consumer Protection Act, 1986 mainly, Section 3 which provides remedy in addition and not in derogation of any other law for time being in force since this provision has been made by Parliament by adopting doctrine of incorporation.  In absence of credible evidence to the effect that the Motorman was diligent enough to take precaution by blowing horn and opponents display arrival of train on the indicator with prior announcement, we are inclined to hold deficiency of services against opponents/Railway Authorities in absence of such measures in place.

15.     In view of observations of Hon’ble National Commission in various judgments (mentioned supra) arguments of the Learned Counsel of the opponents opposing on the point of jurisdiction to entertain this consumer complaint is not sustainable and needs to be eschewed out of consideration.  Therefore, we hold that the State Commission has jurisdiction to try and settle the present consumer complaint.

16.     In the plethora of judgments and more particularly in Revision Petition No.864/2006 (mentioned supra), it was observed by the Hon’ble National Commission that purchasing of railway ticket, passenger would be a consumer as he/she availed of the services of the Railway Authorities.  If there is any deficiency in service, then such a person is entitled to file consumer complaint under the provisions of the Consumer Protection Act, 1986.  Deceased passenger admittedly had a valid season pass issued by the opponents/Railway Authorities.  Therefore, relationship of consumer and that of service provider under the provisions of Section 2(1)(d)(ii) and Section 2(1)(o) of Consumer Protection Act, 1986 subsists.

17.     Admittedly, accident took place on 14/02/1996, leading to death of mother of complainant Nos.1&2 on 20/02/1996.  Initially, the complaint was lodged before the Railway Claims Tribunal, Mumbai and later on same was withdrawn on the point of jurisdiction on 29/06/1997.  The complainants have candidly disclosed this fact in the complaint.  The present consumer complaint was filed on 12/02/1998 though it was signed and verified on 06/02/1998.  Viewed from any angle i.e. even from the date of accident or later on from the date of death, the present consumer complaint does not suffer from infirmity of limitation under Section 24-A of the Consumer Protection Act, 1986 as it falls well within time limit of two years.  This status has been verified from the record of Complaint Filing Register maintained by office of this Commission.  Therefore, argument of the Learned Counsel of the opponents opposing the consumer complaint on the point of limitation needs to be watered down.

18.     The Documents available on record narrated in Para 11 (supra) as submitted by Learned Counsel of the complainants, there is no reason to disbelieve the genuineness of these documents which have been filed by the complainants on oath duly attested by the Notary, particularly, in absence of any documentary evidence led by the opponents to the contrary.

19.     The alleged negligence of not blowing the horn and/or any announcement about sudden arrival of the down train on Platform No.5, there are statements of (i) Smt.Pushpa Jawahar Nagori, (ii) Catherene Sequrea (iii) Allin Misket, who were the co-passengers injured in the said accident.  On going through all these statements recorded by the Police while conducting Panchanama stated that attention of the standing passengers was towards Kalyan side and therefore, incoming train from backside on Platform No.5 was not noticed. Statement of Mr.Kirtikumar Panchal relied upon by opponents corroborates statements of these co-passengers. None of these deponents could remember whether there was any announcement to the effect about fast moving down train or whether there was horn blown by the Motorman.  However, only announcement which was repeatedly carried out was about ‘trains running late’.  There was as usual heavy rush on the Platform which resulted into commotion after accident because of sudden incoming down train on Platform No.5.  Later on the Motorman took the train ahead and then only was blowing the horn continuously after people started screaming.  There is unanimity in the statement of all the co-passengers standing on Platform No.5 at the crucial time.  Relevance of these statements gathers the factum leading to incidence of accident and chaos.

20.     Shifting of deceased passenger to Civil Hospital Thane and later on to Smt.Sunitadevi Singhania Hospital and then finally to KEM Hospital, Mumbai for treatment is not in dispute.  Certain reports are available on record, which too are not in dispute.

21.     Jurisdiction of Railway Claims Tribunal under Railway Claims Tribunal Act, 1987 is well defined under Section 13 of Railway Claims Tribunal Act, 1987.  Section 128 of the Railways Act, 1989 provides for remedy to claim compensation under any other law for the time being in force.  On this premise, the point of jurisdiction of death claim on account of deficiency of service is a matter to be tried and settled under the provisions Section 3 of Consumer Protection Act, 1986.  Therefore, argument of the Learned Counsel for the opponents to try this claim only in Railway Claims Tribunal cannot be taken as a gospel truth.

22.     The complainants have claimed total amount of Rs.19,95,000/- including therein Rs.6 Lakhs as compensation for the mental agony and sufferings and Rs.27,000/- being the expenses incurred for medical treatment and ambulance charges.  On going through the record available, the deceased passenger was very much working in the employment of KEM Hospital attached to Brihanmumabi Municipal Corporation and drawing salary of Rs.6,000/- per month.  At the time of death, age of deceased passenger was around 40 years.  Retirement age is 58 years in the case of employees of Brihanmumbai Municipal Corporation.  Narration of documents in Para 11 (supra) goes uncontraverted.   Her salary could have increased with annual increment and Revision of Pay-Scale.  Therefore, we are considering Rs.6,000/- per month at the very lowest level for the balance period of 18 years - Rs.12,96,000/- (Rs.6,000/- × 12 × 18). Therefore, no further deductions are warranted in view of the situation explained. 

23.     Complainant Nos.1&2 are the orphan children of deceased passenger.  The case was lying in the sine-die list though it was filed in the year 1998 and age of complainant Nos.1&2 was 13 years & 9 years respectively, which was taken on Board for hearing and disposal.   Irony of the nature is that the father of the complainant Nos.1&2 pre-deceased i.e. died earlier prior to the accidental death of their mother.  Children have lost on permanent basis love and affection of their mother which was rightful claim of the children due to sad demise of their mother.  Therefore, complainants deserve to be compensated for mental agony and sufferings adequately (Rs.5 Lakhs as compensation) together with expenses incurred for medical treatment (Rs.27,000/-).  Awarding the same will meet the ends of justice together with interest @ 9% p.a.  Therefore, we are of the considerate and confirmed view that amount of Rs.18,23,000/- together with interest @ 9% p.a. from the date of filing of the complaint i.e. 06/02/1998 till realization will be payable as claim to the complainants.  Complainants are also entitled for Rs.25,000/- towards cost of this litigation.

24.     In view of observations, complainants have substantiated the complaint on merit and therefore, it deserves to be allowed for the clear deficiency of service rendered by the opponents/Railway Authorities.  We hold accordingly and pass the following order :-

Pronounced

Dated 19^th September 2014.