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.
