Kerala

Ernakulam

CC/10/629

C.H.RAJENDRAN, - Complainant(s)

Versus

DIVISIONAL MANAGER SOUTHERN RAILWAY - Opp.Party(s)

K.JAGADEESH

25 May 2012

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM
ERNAKULAM
 
Complaint Case No. CC/10/629
 
1. C.H.RAJENDRAN,
S/O LATE K.MUKUNDAN MENON, CHULLIPARAMBIL HOUSE, PUTHENCHIRA.P.O, THRISSUR DISTRICT-680682.
...........Complainant(s)
Versus
1. DIVISIONAL MANAGER SOUTHERN RAILWAY
SOUTHERN RAILWAY,SOUTH RAILWAY STATION, ERNAKULAM.
............Opp.Party(s)
 
BEFORE: 
 HONORABLE MR. A.RAJESH PRESIDENT
 HONORABLE MR. PROF:PAUL GOMEZ Member
 HONORABLE MRS. C.K.LEKHAMMA Member
 
PRESENT:
 
ORDER

PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 25th day of May 2012

 

                                                                                                     Filed on :26/11/2010

Present :

          Shri. A  Rajesh,                                                     President.

Smt. C.K. Lekhamma,                                           Member

C.C. No.629/10

     Between

C.M. Rajendran,                               :        Complainant

S/o. Late K. Mukundan Menon,          (By Adv. K. Jagadesh,

Chulliprambil house,                            Narayaneeyam, Chittoor road,

Puthenchira P.O., Thrissur -680 682. Ernakulam, Kochi-11)

 

                                                And

The Divisional Manager,                 :         Opposite party

Southern Railwaly,                              (By Adv. Millu Dandapani

South Railway Station,                       Dandapani Associates,”Thrupthi”

Ernakulam.                                          T.D. Road North end,

                                                           Cochin 682 035)

                   

 

                                          O R D E R

A  Rajesh, President.

          The complainant discloses the following facts:

          He is a regular commuter of railway  between Ernakulam and Chalakudy for which he holds a season ticket.  On 07-08-2010 he boarded Ernakulam Kannur Executive Express from Ernakulam and was sitting near the window.  At alway, due to a sudden jerk, the window shutter fell down on his left hand and two of his fingers were badly hurt.  He lost lot of blood and the pain was severe.  He reported the matter to the Station Master at Chalakudy where he alighted and his complaint was recorded.  He was taken to a private hospital in that place and was examined and treated there.  The injury was so grave that he was out of his avocation one month.  The complainant was put to much suffering, pain and loss due to the negligence on the part of the opposite party in maintaining the compartments properly.  This complaint hence claiming various reliefs. 

          2. The opposite party has filed the version refuting all the allegations raised in the complaint.  The basic facts regarding the journey is not denied.  The injury also is not denied.  The crux of the opposite party’s  contentions is that the shutter of the window at the relevant time was under the control and management of the complainant only.  There is silence on the part of the complainant as to whether the shutter was properly locked or not. In that back ground, the doctorine of ‘Res ipsa loquitur” does arise.  Moreover if the pain was so severe, complainant should have reported the matter to the guard of the train or at the nearest station where the train  has a halt.  On an overall assessment, it is urged that the complaint deserves a dismissal.

          3.  The complainant was examined as PW1.  Exts. A1 to A7  marked on his side.   Witnesses for the complainant were examined as PW2 and PW3.  Neither oral nor documentary evidence was adduced by the opposite party.   Both the parties were heard.

          4. The following points arise for determination.

          i. Whether the alleged incident has occurred or not?

          ii. Whether the injury has been caused due to the negligence of 

             the opposite party?

          iii. If point No. (ii) is answered affirmatively, what  are the reliefs

              to be allowed

          5. Point No. i.   It is not a matter of dispute that the accident inside the compartment of the train has occurred.  The materials  produced such as Exts. A3 to 5 medical records go to show that the injury has occurred.  This has been corroborated by the depositions  of  PWs1 to 3.  The opposite party also is not making much issue out of that point.

          6. Point No. ii &iii.  The crux of the matter is as to whether negligence on the part of opposite party has been convincingly proved by the complainant.  Complainant takes refuge under the doctrine of “Res-ipsa-loquitur’ to plead that once the accident is established, it  itself is self is enough o indict the opposite party.  In support of the arrangement, the learned counsel appearing on behalf  of the complainant has cited the decision rendered by the Hon’ble  High Court of Kerala in New India Assurance Co. Ltd. V. Pazhaviemmal  2011 (3) KHC 595 (DB).  The learned counsel draws support from the decision of his Lordship justice Basant which reads as follows:.  The duty of the driver to the passenger must include the elementary duty of  ensuring that the doors are properly fastened/locked before the vehicle  is started.”

          7. The learned counsel appearing for the opposite party contended that it is a case of ‘volenti non fit injuria’ and the  trouble by and large, unfortunately, is self invited due to the negligence and laxity on the part of the complainant.

           8.It is pertinent to note that though the opposite party stated that the particular coach was checked on the date of accident nothing is on record to substantiate the same.  This general statement  does not appear to be a conclusive proof that the coach was checked on the date of accident. It was the boundan duty of the opposite party to check and rectify the defects if any to ensure  the safety of its passengers in which they failed.   In this case the bounden duty of the opposite party seems to have been unobserved and overseen which caused this unfortunate incident. The primary duty of the service provider in which they failed can’t be called  upon as an excuse for the dictum. ‘Volenti non fit injuria’ which necessarily goes to  show that the necessary precaution on the part of the  opposite party goes before that of the complainant.

 

                9. The opposite parties took a contention that the complainant

      did not report the accident forthwith to the opposite party.  We are not

     to accept the above contention since it is the natural human conduct     

    to go for medical attendance according to the choice and convenience

     of the injured especially because  the injured was in a helpless    

     condition.  In such circumstances psychologically one who is in fear of

     death or  irreparable injury  thinks only of his access to home. Hence

     his option  to go to Chalakudy. The complainant had to suffer the

    injuries mentioned in  Ext. A4 certificate uncontrovertedly  and incurred    

    a total sum of Rs.  1,059.46 towards treatment expenses  evidenced

    by Ext. A5 series   (23 in numbers).

          10. Admittedly the complainant is an advocate clerk  he had to take rest  to get his injuries healed for a considerable duration  to resume his work which has  caused him considerable loss in his profession which has got to be accounted for and compensated. Considering the entire evidence and the absence of anything to the contrary by the opposite party in this case we  go only to find that the contentions are substantiated without demur.  For the aforementioned grounded reasons we are only to go to the conclusions that the award for  compensation of Rs.25,000/- will suffice to meet the ends of justice. Ordered accordingly. 

          11.  In the result, we partly allow the complaint and   direct that the opposite party shall pay a compensation of Rs. 25,000/- to the complainant for the reasons stated above.       

          The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order failing which the amount shall carry interest @ 12% p.a. till realization.

Pronounced in the open Forum on this the 25th day of May 2012

 

                                                                                                        Sd/-

           A  Rajesh, President.

 

                   Sd/-

                                                                    C.K. Lekhamma, Member.

                                                                   Forwarded/By Order,

 

 

                                                                   Senior Superintendent.
                                      Appendix

 

Complainant’s Exhibits :

 

                   Ext.    A1              :         Copy of ID card

                             A2              :         Season ticket

                             A3              :         Registration card

                             A4              :         Medical certificate

                             A5              :         Copies of bills

                             A6              :         Notice dt. 27-09-2010

                             A7              :         A.D. Card

Opposite party’s Exhibits :    :         Nil

 

 

Depositions:

 

                   PW1                    :         C.M. Rajendran

                   PW2                    :         Dr. Sreejith P.P.

                   PW3                    :         Radhakrishnan K.K.

 

 
 
[HONORABLE MR. A.RAJESH]
PRESIDENT
 
[HONORABLE MR. PROF:PAUL GOMEZ]
Member
 
[HONORABLE MRS. C.K.LEKHAMMA]
Member

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