BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 444/2002

Dated : 31.05.2010

Complainant:

Dr. M.H. Rahimkutty, S/o A. Mohammed Haneefa, Lecturer Selection Grade, MSM College, Kayamkulam residing at 'Reesni', New Kavalloor, Pulimoodu Lane, Vattiyoorkavu, Thiruvananthapuram.

(By adv. B. Ashok Kumar)

Opposite party:

Southern Railway, represented by General Manager, Chennai.

This O.P having been taken as heard on 30.04.2010, the Forum on 31.05.2010 delivered the following :

ORDER

SMT. S.K. SREELA, MEMBER

The grievance of the complainant is as follows: Complainant is a regular passenger from Thiruvananthapuram Central Station to Kayamkulam using season ticket No. 54938612 vide train No. 1082 Jayanthi Janatha (Kanyakumari-Mumbai). On 31.07.2001, complainant was travelling from Thiruvananthapuram to Kayamkulam as usual. He was sitting on the side seat near the window of the train and when the train reached near Kaniyapuram at about 7.45 a.m, the shutter of the window which was raised and locked, suddenly slipped down and fell on the right hand of the complainant causing serious injury to his right hand fingers and blood rushed through the wound. His colleagues asked him to pull down the chain then and there, but as the train was running in a high speed and also to avoid inconvenience to other passenger, chain was not pulled and when the train reached Chirayinkeezhu the nearest station, the complainant who was unconscious by the time was rushed to the Taluk Head Quarters hospital, Chirayinkeezhu by his colleagues after informing the matter to the Station Master concerned and TTE. At the Chirayinkeezhu hospital complainant was treated for wound debeidement and contusion. Later complainant was directed to Medical College Hospital, Thiruvananthapuram for further treatment. Due to this accident, complainant's ¾ tip of crushed small finger is removed by the doctors of Medical College Hospital, Thiruvananthapuram as this was the only alternative. Complainant had to avail one month leave for treatment and had to spend lot of money and time and also suffered mental agony and pain due to this mishap. Complainant suffered all these hardships only because of the negligence and indifference of the concerned railway personnels, by not keeping the lock of the window properly. The negligence of railway authorities in not maintaining the bougies properly has caused the complainant to loose his ¾ tip of small finger in his right hand. Opposite party had made enquiries about the complainant's accident due to the negligence in their part, but had not made any steps to compensate him. Hence this complaint for compensation and costs.

The opposite party has filed their version contending as follows: The complaint is not maintainable either in law or on facts. Opposite parties deny that the complainant was a passenger by 1082 Express of 31.07.2001. The complainant has nothing to prove that he has travelled by 1082 Express on 31.07.2001 and the alleged injury, if at all happened has nothing to do with Railway journey at all. Complainant do not specify whether he has unlocked the tower bolts of the window beside which he has allegedly travelled. Since season ticket was not a valid travel authority to travel in sleeper class coach, the complainant could not have been a passenger in sleeper class coach. Being a lecturer and a respectable citizen, opposite party believe that he would not have circumvented this rule. If he had tried to travel in a sleeper class coach, his travel authority, in season ticket becomes invalid and thus the complainant could not be treated as a consumer as envisaged in Consumer Protection Act, 1987 in that case. It is most humbly submitted that the window shutters in railway coaches by sleeper class coaches are having iron latches and inter mittent holes on the windowpane, on both sides of the window. Even if one latch was secured, it will not fall down, as the system of locking is so secure. In addition to this window shutters are loaded with good quality springs, which also keep the window shutters in raised position, even if unlocked. It may also be noted that no passenger has complained about such matter, in the whole train at all. Since the train commenced its journey from Kanya Kumari, around 87 KM away from Thiruvananthapuram Central, had there been such a defect, it would have been reported earlier or noticed by any other passengers. The reason for not pulling the alarm chain as submitted by the complainant defies simple logic. A passenger with a bleeding finger did not pull the chain for the sake of the convenience of other passengers is a fact hard to believe. The alleged information provided to the TTE and station master is denied. No TTE by 1082 Express had been intimated of such a matter. The complainant is very vague in this part as he mentions them as “Station Master concerned and TTE.” There were more than one TTE working in the train in different coaches. The treatment alleged to have taken by the complainant in the Taluk Head Quarters Hospital at Chirayinkil and Medical College Hospital at Trivandrum is denied. If at all he had been treated there as submitted in the complaint, opposite party deny any connection of the same with its services or employees or in the premises of any of its trains or stations. The alleged loss of the tip of the finger of the complainant has nothing to do with this opposite party, its employee's equipments or services. This opposite party denies that any such incident has happened, or any damage, inconvenience or mental agony has been caused to the complainant due to any act of the opposite party. The complainant himself admits that he has been intimated by the competent official of this opposite party that there was no deficiency on the part of this opposite party and the window shutters of the train 1082 Express were of high quality and maintained at high standard. Thus his claim before Railway Claims Tribunal was also returned according to him. As such this opposite party was unnecessarily dragged into a legal battle spoiling public funds, which had other, better, alternate uses. Only Railway Claims Tribunals has jurisdiction over such untoward, though alleged, incidents, as per the relevant sections of Railways Act 1989. The complainant was not permitted by any TTE of 1082 Express of 30.07.2001 to travel in any coach at all leaves alone sleeper class coach. Had it been so, complainant has to submit the permission as evidence before this Hon'ble Forum. It is submitted that the complainant did not approach any of the employees of this opposite party at all. Hence prays for dismissal of the complaint.

On the part of the complainant, PW1 & PW2 were examined and Exts. P1 to P9 were marked. DW1 has been examined on behalf of opposite party.

The issues that would arise for consideration are:-

1. Whether there is any deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled for any of the reliefs claimed?

Points (i) & (ii):- The allegation of the complainant is that, while travelling from Thiruvananthapuram to Kayamkulam on 31.07.2001 in Jayanthi Janatha, using his season ticket, the shutter of the window in which he was seated slipped down and fell on the right hand of the complainant thereby causing the complainant to remove ¾ tip of crushed small finger by the doctors of Medical College Hospital, Thiruvananthapuram. That the complainant is a lecturer and his loss of ¾ tip of small finger has affected his career and has affected his day to day life. This, according to the complainant has happed due to the negligence of the railway authorities in not maintaining the compartments properly.

The opposite party has filed their version strongly contending that the complainant was not a passenger by 1082 Express on 31.07.2001 and the alleged injury if at all happened had nothing to do with railway journey at all. Furthermore they have contended that no passenger has complained about such matter.

We have perused the documents produced by the complainant. Ext. P7 is the season ticket belonging to the complainant. According to the opposite party season ticket was not a valid travel authority to travel in sleeper class coach. But the complainant has pleaded that in train No. 1082 Jayanthi Janatha, season ticket holders are allowed to occupy sleeper class of certain compartments upto certain station and there was no prohibition put forward by the TTE, moreover the complainant has been a regular railway season ticket passenger travelling in this bougies for the past 20 years. Despite the said contention of the opposite party in the version no documents have been produced by the opposite party to substantiate their contention regarding the travel authority of season ticket holders travelling in sleeper class coach.

The aspect to be looked into in this case is, whether the complainant had suffered the hardships as pleaded in the complaint. The opposite party has specifically contended that the complainant was not a passenger by 1082 Express train as the coach No. and seat No. have not been mentioned in the complaint. It is true that the complainant has not mentioned specifically in which coach and in which seat number he was seated. When the complainant's specific case is that, the shutter of the window in which he was seated had slipped down, it is for the complainant to prove first that he had travelled in that train by specifying the coach No. and seat No. Furthermore, it is the case of the complainant that when the shutter slipped on his right hand fingers blood rushed through the wound and the chain was not pulled to avoid inconvenience to other passenger. Here the pertinent point to be noted is that, whether such an incident has been informed to the TTE concerned in the specific coach. Though the complainant has pleaded that his colleagues had informed the matter to the Station Master & TTE, there is no corroborative evidence to substantiate the same. In the absence of any evidence to prove that the complainant had travelled in the said train as no coach number or seat number have been mentioned, we are of the view that the complainant has failed to establish his case with cogent evidence. Complainant has no case that he had informed the matter to the police or had given any complaint in writing to the opposite party even at a later stage. Ext. P1 is dated 20.09.2001, which is seen sent to the General Manager, Southern Railway after about one and a half months from the date of incident. It is very surprising to find that, even after occurrence of such alleged serious injury as pleaded in the complaint, the complainant did not file any written complaint to the Station Master or the TTE for about one and half months. As a prudent citizen, if at all such an incident had happened, the complainant ought have filed a complaint at least through his colleagues complaining about the incident, the coach and the specific window. But no such action is seen taken on the part of the complainant.

From the foregoing discussions, we find that the complainant has miserably failed to establish his complaint with cogent evidence and hence the complaint is liable to be dismissed.

In the result, complaint is dismissed. No order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of April 2010.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

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O.P. No. 444/2002

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - M.H. Rahimkutty

PW2 - Arshad

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of letter dated 20.09.2001

P2 - Copy of letter dated 08.10.2001 addressed to complainant.

P3 - Copy of letter dated 13.02.2002.

P4 - Copy of out-patient ticket

P5 - Copy of out-patient ticket

P6 - Copy of O.P Card.

P7 - Copy of season ticket

P8 - Copy of letter addressed to the complainant dated 09.08.2002

P9 - Paper cutting

P10 - X-ray

III OPPOSITE PARTY'S WITNESS :

DW1 - Purendran

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT