D.o.F:20/03/2013

D.o.O:31/08/2016

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                          CC.NO.90/13

                  Dated this, the 31st      day of  August 2016

PRESENT:

SMT.P.RAMADEVI           : PRESIDENT

SMT.SHIBA.M.SAMUEL    : MEMBER

Muhammed Irfan Ali.M.K,

S/o late A.K.Muhammed,

R/at Thabsheera Manzil                                      : Complainant

Po.Muttathody, Vidyanagar,Kasaragod

(Adv.Shajid Kammadam).

1. The General Manager,

Southern railways,Park town,

Chennai , Tamil Nadu 600003.                  : Opposite parties

2. The Divisional Manager,

Southern Railways, Palakkad Division,

Olavankkode,Kerala 678002.

(Adv.M.Abdul Khader)

ORDER

SMT.P.RAMADEVI           : PRESIDENT

The brief facts of the  complaint  are as  follows:

   That the complainant was  scheduled to attend a meeting with one   Mr. Muhammed Kunhi on 14/8/2012 at 8.45 at Cheruvathur and purchased a  train ticket  from Nileshwar  railway station   and was waiting for   Mangalore Channai  Egmore Express  /1607.  The  complainant  arrived the   2^nd platform   for boarding  the train and  the complainant  was seen freight wagon   on the railway line parallel  to 2^nd platform , situated on the east of the 2^nd platform and the freight  line is  structured in a way without  leaving any space from the  2^nd plat form and the complainant has witnessed that the  cement bags are being unloading from the freight wagon to the lorries parked on the road, situated on the adjacent east of the freight line  and the  doors of the freight  on both sides are  opened and cement dust  seen to have  pouring  to 2^nd platform and the complainant and  another passenger, whose  9 months aged child  suffered  suffocation due to  cement dust , have requested  the loading workers to  close the doors of the freight  wagon  towards the 2^nd platform  in order to limit  the cement dust pouring , and however  they have abused and humiliated the complainant and other  in unparlimentary words in the presence of  other passengers and the  complainant lodged  oral complaint before the station master  of Nileshwar  railway station, but  in vein he has not responded properly  and effectively.  In ensuing  time the complainant  was constrained to wait in 2^nd platform and  has resulted in personal exposure to  inhale the hazardous  cement dust and the complainant  covered  in cement dust  and felt uneasiness  and eye imitation and in the  eventually the complainant has given up the  journey and at that time the complainant has deprived of peace of mind and  has to spent time in worry and it is further submits that it is the duty  of the opposite party to facilitate unpolluted  and clean environment in railway platforms to the bonafide passengers from the point of issuing of valid ticket to  till the arrival  of the  concerned train.  The service of the  opposite party  suffers deficiency  and opposite party having to indulge in these unfair trade practice in violation of legal  maximum salus  populi suprema lex( the safety of the  people  is the  supreme law)  and the same is embodied in Indian Constitution .  Hence this complaint

2.   Opposite party entered in appearance through counsel  and filed their version .In  the version opposite parties   denied all the allegations made against them by the complainant.  It is submitted that the complaint is  filed against violation of constitutional provisions and infringement of fundamental  right of the  complainant and  this forum has no jurisdiction to try the complaint.  It is further submitted that the complainant  has stated his address in the complaint  at Vidyanagar Kasaragod and he had purchased a railway ticket from Nileshwar to Cheruvathur and the opposite party  further denies the oral complaint lodged by the complainant before the station master Nileshwar. The opposite party further submits that the incident was on  14/8/2012  but the complaint is seen filed  19/3/2013 after the delay of 7 months of the alleged incident.  So the intention is  ill motivated and also submitted that the  complaint is  barred by resjudicata since tin the  same complaint the LOk Adalath Kasaragod is  closed as not entertainable.    It is further submitted that the process of unloading and loading cement is not newly introduced activity and it exists through out the Indian Railway system for morethan a century and on perusal of complaint  book dated back to 10/11/2000 to 15/4/2013  twenty numbers of complaint were registered  at Nileshwar station and on perusal of   nature of complaints shows that during a span of 13 years there was not even a single bonafide passenger made any complaint  regarding the working of goods line or  pollution problem as alleged by the complaint except the complaint filed by the  Advocate before the Lok adalath who is appearing for the  complainant and the same was  closed by the Lok adalath  as not entertainable.  Hence this complaint is  barred by resjudicata.  It is further stated that complainant has not stated under the law regarding the duty  cast upon the  opposite party and what are all provisions have been violated by the  opposite party. Hence the complaint is dismissed with exemplary cost.

   The complainant is examined as PW1 and Exts.A1 & A2  and opposite parties have not adduced any oral evidence and Ext.B1 to B3  marked.

   On going through the entire facts  on records the following issues raised for consideration.

1.Whether the complaint is barred by resjudicata

2. Is there any deficiency in service on the side of opposite party.  If so what is the relief as cost and compensation?

  1. Issue No.1;      Here the opposite party contended that the counsel  appearing for the complainant Mr.Shajid Kammadam filed the same complaint before the Hon’ble Lok Adalath Kasaragod and that complaint was closed as not entertainable.  According to the opposite party the complaint filed by the counsel  appearing for the complainant herein and the  present complaint is one and the same  and the hon’ble  Lok Adalath  decided the  matter as not entertainable hence the same  complaint is filed before this Forum is barred by principles of resjudicata and the  present complaint is to be dismissed.  In order to substantiate their contention the opposite party filed Ext.B2 and B3 documents.  Ext.B2 is the proceedings  before the Lok Adalat and Ext.B3 is the copy of the complaint filed by Adv.Shajid Commadam before the Lok Adalat.  Here  we perused  the documents.  The facts in the complaint filed before the Lok Adalat and the facts of the  complaint in hand are one and the same.  But the parties are different eventhough the complainant in Ext.B3 is the  counsel appearing for complainant.  Therefore the principles of resjudicata is not applicable in this case.  Hence the first issue is found in favour of the  complainant.

 Issue No.2.  The specific case of the complainant  is that while he was waiting for the train on  the side of 2^nd  platform  he had seen the  freight wagon is opened and the cement is unloaded from the freight wagon and the cement poured as the platform and also to the  body of complainant and  as  an allergic person he felt  uneasiness and eye irritation  and when he questioned the same the  workers misbehaved  on him and he lodged  an oral complaint before  the station master but in vein, only because  of the  eye irritation and uneasiness he give up his journey  it  amounts to deficiency  in service on the part of opposite parties.

  Here the opposite party eventhough  denied all the allegations made against them categorically stated that they can not stop the process  of  loading  and unloading of cements since it exists through out Indian Railway more than a century.  It is true that Indian Railway is not only   giving service of carrying  of  passengers but for giving service of  transportation of goods  also.  It is specifically stated that so far no complaint filed before the railway against the working of goods  and pollution problem except one complaint filed by the counsel appearing for the  complainant.  There is no evidence before the Forum that  any passenger lodged  complaint like that of this complaint.  Ext.B1 shows that the complainant has not lodged any complaint before the  railway.

    Here there is no evidence before the Forum that the complainant suffered due to pouring of cement on his body.  while  cross examining the complainant  by the counsel for opposite party the complainant deposed that he consulted with one Dr.Sameer and he provided tablets to the complainant  and the doctor had not given any certificate.  If the complainant  consulted with a doctor  definitely the doctor will give the prescription.  That means the words of the complaint is not believable.

   It is pertinent to note that the complainant is not seeking any direction to opposite party to stop or to minimize or control the pollution problems.  Complainant  is seeking damages caused to the  pouring of cements.  There is no merit in the complaint.   His aim is only to enrich himself by making false  allegation.

    Therefore the complaint is dismissed with cost of Rs.5000/- to the  opposite parties

Exts:

A1-train ticket

A2-Copy of Citizen charter

B1-statement of  OP

B2 –copy of  proceedingpaper

B3 is the copy of the complaint filed by Adv.Shajid Commadam before the Lok Adalat

PW1- Muhammed Irfan Ali.M.K,-complainant

Sd/                                                                                                                                                       Sd/

MEMBER                                                                                     PRESIDENT

                                                                                                 /Forwarded by Order/

                                                                                      SENIOR SUPERINTENDENT