O R D E R
ADV. RAVISUSHA, MEMBER.
The complainant filed this complaint for getting compensation for the injury sustained to her and also for pecuniary loss that she could not attend for the exam conducted by Ministry of Kuwait and thereby missed the opportunity of getting an employment at Kuwait.
The complainant with her brother Jaison were returning to Kollamfrom Nizamudeen Railway Station, Delhi in the Suvarna Jayanthi Express Daka coach on 27.3.2007. When they were about to reach the Vijayawada Railway Station, Andrapradesh the window shutter fell on the complainant’s hand and her small finger became heavily wounded and injured seriously resulting in the uncontrolled flow of blood cutting the vein. Actually the lock at the window was worn out and dilapidated . But the authorities had not cared to repair it. The complainant became unconscious and the matter was immediately reported to the Superintendent of the Railway who expressed his inability and advised them to do the needful in the destination point. As the complainant and her brother to each home without further delay the journey was continued in torture. And when they reached at Kollam complaint about the matter to the station master and to the Railway Police there. After recording the complaint she was send to the District Hospital, Kollam.. Subsequently pain increased and the wound injury became complicated resulting 1½ months treatment to the injured finger. Hence the Railway was negligent and deficient in service and indifferent in giving protection to the passenger. Their incident caused unbelievable harass to the complainant’s career.
The complainant had served a visiting visa to the State of Kuwait in the hope of servicing as nursing job there. Being a BSC Nursing graduate, the complainant could have written the MOH examination to be conducted by the Ministry of Kuwait to get a prospectful nursing job there. Within three months stay the complainant could have completed and succeed in getting the job which was wiped in the bud by the negligence of the Railway. Hence the loss of the carrier of the complainant was suspense. For the carrier loss the complainant has lost at least 1,75,000/- coupled with other expenses totaling Rs. 3,00,000/-. It is to be recouped by the Railway. Being a member of the lower middle class family, a nursing job at Kuwait was a dream which would have been materialized if the complainant was not cheated by the negligence of the Railway. Hence the complaint.
Opp.party filed version contenting that the complaint is not maintainable either in law or on facts, that this Forum has no jurisdiction to try the matters falling under Section 13 of Railway Claims Tribunals Act 1987 and also as per Section 15 of the said Act. The Railway Claims Tribunal Act, 1987 has seized all the claims matters against Railway Administration from the jurisdiction of other courts for the claims falling under Section 13 [a] [ii] and Section 13 [1-A]RCT Act, 1987, that even though the alleged incident of a window shutter falling on her hand and injured her had occurred at Vijayawada as per the complaint, she had chosen not to give a written complaint to the on-duty Traveling Ticket Examiner of the train nor the Station Superintendent. Instead, the complainant continued her journey up to her destination and latter given a complaint. The train traverses a long distance between the place of alleged incident up to Kollam and she could have made a written complaint to any of the Railway staff. The 1st opp.party is in no way connected with the maintenance of the said train and as such the opp.party 1 cannot be made liable for any injury caused to the complainants herein. The complaint suffers from mis-joinder of party. The complainant had obtained Visa to proceed to Kuwait for a job and ticket was taken for her journey and due to the alleged incident she could not appear for her exam is not admitted by the opp.party 1. The opp.party is not a part to such proceedings and she is put to strict proof of the averments. There is no negligence of service by the opp.party 1 as alleged by the complainant. The complainant should have been careful in latching the window shutter and make a complaint, if there was any malfunction. There is no irresponsible behavior of the opp.party 1 resulting in the alleged incident. The compensation as claimed is highly exaggerated and the opp.party 1 is not liable to pay any compensation as claimed.
Points: that would arise for consideration are:
1. Whether the complainant is maintainable before this Forum?
2. Whether there is any negligence or deficiency in service on the side of opp.party
3. Reliefs and costs.
For the complainant PW.1 was examined and marked Exts. P1 to P9
For the opp.party DW.1 was examined and marked Ext. D1
Complainant’s case is that the complainant with her brother were returning to Kollam from Nizamudeen Railway station, Delhi in the Suvarna Jayanthi Express. Near the Vijayawada Railway Station the lock of the window was worn out and fell on the complainant’s hand and her small finger became injured. This was happened due to the negligence on the part of the Railway Authorities. Hence filed this complaint for getting compensation.
Opp.party’s case is that injury sustained to the complainant is due to her own fault in the failure of the complainant to ensure proper locking of shutter after lifting the shutter. So the Railway is not liable to compensate the complaint.
Point No.1
With regard to the first point the Forum already passed an order in I.A.No.361/09 that this complaint is maintainable before this Forum.
Point NO.2
Next point to be decided is whether there is any negligence on the part of opp.party
The complainant alleged that the injury sustained to her is due to the defect of the lock of the window shutters which was broken and fell on the right hand of the complainant resulting injuries to her. Opp.party contented the complainant unauthorizely occupied the side seat instead of occupying the middle seat allotted to her as per her reservation ticket and failed to look the tower bolt of the shutters properly which resulted the shutters falling down. Complainant also admitted that the incident occurred almost at Vijayawada station when the train is about to stop at Vijayawada Junction and when the break is applied for stopping the train there will be a jerking to the coaches and the shutters fell down. According to the complainant the latches attached to the shutters were worn of from the shutters and fell on her hand. From the side of opp.party DW.1 . The Mechanical Service Section Engineer attached to Southern Railway, Thiruvananthapuram division was examined and the certificate showing maintenance work done to coach No.SR.93321 in which the complainant traveled was marked as Ext.D1. DW.1 has given statement that three technical staffs were appointed for inspecting all the coaches including the coach shutters and other amenities and only defects noted to the particular coach are relating to break and water pipe. On perusal of Ext. D1 there was no such special mention about the maintenance of the window shutters in the particular coach. Hence from Ext. D1 we cannot come to a conclusion that the opp.party has properly done all the maintenance work in that particular coach and all the shutters in that particular coach were found in fact free from any kind of defect. According to the opp.party the latches attached to the shutters are inbuilt and it w immmmmmmmmill not worn of from the shutters even if there is any jerk. But during evidence DW.1 deposed that the parts of the train will be ruined at rainy seasons. Since that statement exists, there is every chance of ruination of latches which may occur such an incident. Opp.party submitted that the complainant failed to lodge any complaint with the station master at Kollam or to the Railway Police at Kollam when she reached at Kollam Station. Ext.P4 and P5 shows that the complainant lodged complaint with the Station Master at Kollam when she reached at Kollam station and as per his instruction she had gone to Kollam District Hospital, and after that filed complaint to Railway Police at Kollam. Here there is no dispute that injury sustained to the right little finger of the complainant was due to fall of window shutters. On considering the entire evidence we are of the opinion that there is negligence on the part of Railway Authorities in keeping the latches of window shutter of the particular coach in defect free condition.. Due to that reason, the complainant sustained injury. Hence the complainant is entitled to get compensation.
The next point to be decided is what the quantum of compensation entitled to the complainant. The complainant alleged that the complainant was admitted at District Hospital, Kollam from 29..3..2009 to 2..4..2009 and after that 1½ months treatment was continued. For proving the said points complainant produced Ext.P2 and P3 documents. Ext.P2 shows that there is fracture to 3rd phalanx of right little finger of the complainant. ext.P2 and P3 shows that the complainant had taken treatment only as outpatient. From Ext.P2 it is evident that the injury sustained to the complainant is simple in nature. Another allegation of the complainant is that she had already booked air ticket for her journey to Kuwait as per the free visa arranged by her brother. Complainant also produce Ext.P7 the photocopy of air ticket for her journey to Kuwait on 4.4.2009. During cross-examination the opp.,party’s counsel put a suggestion that the original of Ext.P7 should be produced for showing that she had not cancelled the ticket. PW.1 agreed to produce the original of Ext.P7 air ticket But she did not produce the original of Ext.P7 before the Forum. That means the complainant had cancelled the ticket and availed the refund money. Another allegation of the complainant is that due to the injury sustained to her she had lost her employment opportunity as a nurse at Kuwait. The learned counsel for the opp.party argued that the complainant is presently working at abroad as a nurse and she has not suffered any loss in getting an employment at abroad. That argument is not challenged by the counsel appeared for the complainant. That shows that the complainant is presently working at abroad. That means the complainant has not suffered any loss in getting an employment at abroad.
On considering the entire evidence and circumstances, we are of the opinion that the complainant is entitled to get compensation only for the injury sustained to her Right Little finger. There is no pecuniary loss sustained to the complainant.
In the result, the complaint is allowed in part. Considering the seriousness of injury sustained to the complainant, she is entitled to get Rs.25,000/- from the opp.party as compensation. Hence opp.party is directed to give Rs.25,000/- to the complainant and Rs.1500/- as cost to the proceedings. The order is to be complied with within one month from the date of receipt of this order. Failing which the complaint is entitled to get compensation amount with 9% interest from the date of order until payment.
Dated this the 13th day of August, 2012.
I N D E X:
List of witnesses for the complainant
PW.1. – Jayamol
List of documents for the complainant
P1. – Train Ticket
P2. – OP ticket
P3. – OP ticket
P4. – Petition to station Master dated 29..3..2009
P5. – GD extract
P6. – Visa to Kuwait
P7. – Ticket to Air India Express
P8. – Ministry of Health exam application
P9. – Nursing degree certificate.
List of witnesses for the opp.party
DW.1. – M.A. Rajasekharan Pillai
List of documents for the opp.parties
D1. - Maintenance certificate
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