BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD : THIRUVANANTHAPURAM<br /> PRESENT:<br /> <br /> SHRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENA KUMARI .A : MEMBER<br /> SMT. S.K. SREELA : MEMBER<br /> <br /> O.P.No. 82/2001 Filed on 16..02..2001 <br /> Dated: 30..06..2008<br /> Complainant:<br /> <br /> Sukumari, Varuvila Veedu, Kattachalkuzhi, Balaramapuram, Thiruvananthapuram. <br /> <br /> (By Adv. Sri. B. Vasudevan Nair)<br /> <br /> Opposite parties:<br /> <br /> 1. Khader, Proprietor, Sameena Travels, Beemapally – P.O., Thiruvananthapuram.<br /> <br /> (By Adv. Sri. P.A. Ahamed)<br /> <br /> 2. Nazeem, Conductor, Sameena Travels, Beemapally P.O., Thiruvananthapuram.<br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 20..02..2004 the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 19..05..2008, the Forum on 30..06..2008 delivered the following:<br /> <br /> <br /> ORDER<br /> <br /> SHRI. G. SIVAPRASAD, PRESIDENT : <br /> <br /> The fact leading to the filing of the complaint is that on 05..04..2000 the complainant had taken ticket for her journey from East Fort to Statue in a private transport bus owned by the 1st opposite party. She occupied a seat reserved for women and the top of the seat was covered with metal. Due to lack of proper maintenance the metallic portion so covered was projecting outward causing danger to the passengers. The complainant in order to avoid danger was holding the front seat. While the bus was running the driver of the bus applied sudden break and as a result the metallic portion which was projecting outwards pierced into the fourth finger of the left hand of the complainant and she sustained very serious injury. There was profuse bleeding from the injury, complainant began to bleed and the 2nd opposite party was constrained to give signal to stop the bus immediately. The complainant was immediately taken to General Hospital by the 2nd opposite party. As the injury was very serious, the General Hospital authorities referred the complainant to the Medical College Hospital, Thiruvananthapuram after giving first aid. In Medical College Hospital, the wound was stitched and after applying medicines, the complainant was directed to continue the treatment as in-patient. The complainant disclosed her inability to treat there as in-patient as there was nobody to look after her minor children and hence she was directed to take rest for sometime and returned to home. After 3 days, the complainant felt severe pain in her left hand and she was taken to a private hospital namely Jacob Hospital, Parassala, she was admitted in that hospital on 11..04..2000 and she was treated as in-patient there till 21..05..2000. The complainant, who is a widow with two minor children was put to untold hardships as there was no other person to look after the children. She was constrained to appoint a bystander on daily wages and the treatment undergone by the complainant made her to spend an amount of Rs.1,00,000/-. Even now the complainant is continuing treatment and the injury sustained by her has not healed completely. The injury was solely due to the negligence of the opposite parties. The failure of opposite parties in maintaining the vehicle amounts to deficiency of service and for the same, both the opposite parties are jointly liable to compensate the complainant. Complainant limits her claim to Rs.1,00,000/- only. Complainant approached the opposite parties personally on many occasions demanding damages but opposite parties turned deaf ears to her request. Thereafter complainant issued legal notice demanding compensation to the opposite parties on 01..01..2001 and the opposite parties failed to receive the same and the notices was returned unclaimed. Hence this complaint claiming compensation from opposite parties.<br /> <br /> 2. 1st opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. There is no consumer relationship between the complainant and the 1st opposite party. The complainant has not travelled in the bus belonging to the 1st opposite party on the date mentioned. The 2nd opposite party never worked as a conductor at any point of time. The employee in the bus in April 2000 were E.M. Basheer and Abdul Rasheed as drivers, 1st opposite party and Haleel Rahman as conductors. On 05..04..2000 the 1st opposite party was the conductor of the bus, the complainant did not board the bus as stated in the complaint. The vehicle is in perfect condition and no metallic portion is projecting out in any seat as alleged in the complaint. The 2nd opposite party is a native of Beemapally and as such is known to the 1st opposite party. But 2nd opposite party has never worked in the said bus. He wanted a job as a conductor in the bus which could not be provided due to non-availability of vacancy. Because of this 2nd opposite party in loggerheads with 1st opposite party and this complaint is initiated at his instigation. 1st opposite party is not aware of any treatment alleged to have been taken by the complainant in the General Hospital or in the Medical College Hospital or in the private hospital. If at all the complainant underwent any treatment, the 1st opposite party is not at all responsible for the same. The statement that complainant had to spend a sum of Rs.1,00,000/- for treatment is false, highly imaginery and concoted. The complainant does not sustain any injury from the bus of the 1st opposite party. Hence complainant is not entitled to claim any amount from the 1st opposite party. The 1st opposite party prayed for dismissal of the complaint with cost.<br /> <br /> 3. The points that would arise for consideration are:<br /> <br /> (i)Whether the complainant is a consumer within the meaning of Consumer Protection Act?<br /> (ii)Whether there has been deficiency in service on the part of opposite parties?<br /> (iii)Reliefs and Costs?<br /> <br /> 4. To support the contention in the complaint, complainant has filed an affidavit of herself as PW1 and Exts. P1 to P6 were marked. No affidavit by way of evidence filed by opposite parties?<br /> <br /> 5. Points (i) to (iii) : The first point requiring consideration is whether the complainant is a consumer within the meaning of Consumer Protection Act. The grievance of the complainant is that complainant had taken ticket for her journey from East Fort to Statue in a private transport bus owned by 1st opposite party. She occupied a seat reserved for woman and the top of the seat was covered with metal. Due to lack of proper maintenance, the metallic portion so covered was projecting outward causing damages to the passengers. While the bus was running, the driver of the said bus applied sudden break and as a result, the metallic portion which was projecting outwards pierced into the fourth finger of the left hand of the complainant and she sustained serious injury. Complainant began to bleed and the 2nd opposite party gave signal to stop the bus immediately. The complainant was immediately taken to the General Hospital by the 2nd opposite party. The General Hospital authorities referred the complainant to the Medical College Hospital after giving first aid. In Medical College Hospital, the wound was stitched and complainant was directed to continue the treatment as in-patient. Since nobody was there to look after her minor children she could no treat as in-patient. Thereafter on 11..04..2000 complainant was taken to a private hospital at Parassala where complainant was treated as in-patient till 21..05..2000. Submission by the counsel appearing for the complainant is that the injury sustained to the complainant was solely due to the negligence of the opposite parties in maintaining the said vehicle properly and the failure of the opposite parties would amounts to deficiency in service for which opposite parties are jointly liable to compensate the complaint. In the version, the contention of the 1st opposite party is that the complainant has not travelled in the bus belonging to 1st opposite party and the 2nd opposite party never worked as a conductor at any point of time. The employee in the bus in April 2000 were E.M. Basheer and Abdul Rasheed. 1st opposite party and Haleel Rahman as conductors. 1st opposite party went on to submit that on 05..04..2000 1st opposite party was the conductor of the bus and the complainant did not board the bus as stated in the complaint. In cross examination, when complainant was asked to produce any record showing complainant's travel in opposite parties' bus, complainant replied that she was having bus ticket, which could produce before this Forum. After examination complainant produced bus ticket which is seen marked as Ext. P6. In the top of Ext.P6 ticket, the name Sabeena (KTN) is printed. The main thrust of the argument advanced by the counsel appearing the 1st opposite party was to the effect that complainant is not a consumer within the meaning of the CP Act. The learned counsel made reliance on the decision of the Kerala State Consumer Disputes Redressal Commission reported in 2002 (1)CPJ 331. The said decision was based on the decision of the Division Bench of the Kerala High Court reported in 1999 (2)KLT 898, wherein the Division of the High Court held that the passenger in a bus is not a consumer for the purpose of Consumer Protection Act. Counsel for the complainant made reliance on the decision of the National Commission reported in CPR 1993(3) 379. While the learned counsel appearing for the 1st opposite party submitted that the said National Commission decision was reversed by the Hon'ble Supreme Court in its decision reported in 1995(2) SCC 479. In the said decision Hon'ble Supreme Court held that National Commission has no jurisdiction to adjudicate upon claims for compensation arising out of motor vehicles accident. Motor Accidents Claims Tribunal has exclusive jurisdiction under Motor Vehicles Act to ascertain such claims. Motor Vehicle Act in relation to such claims is a special Act while Consumer Protection Act to that extent is a General Law and therefore, the special law should prevail over the general law. Motor Vehicles Act 1988 can be said to be a Special Act in relation to claims of compensation arising out of the use of a motor vehicle. While the Consumer Protection Act 1986 being a law dealing with the question extending protection to consumers in general, could therefore be said to be a general law in relation to the specific provisions concerning accidents arising out of the use of motor vehicles. Ordinarily the general law must yield to the special law. Besides the complaint in question cannot be said to be in relation to any service hired or availed by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed by her but the injury was the direct result of the application of sudden break by the driver of the bus. We have therefore no doubt that this case squarely falls within the ambit of Section 165 of 1988 Act. Applying the said declaration of law as is obtained and found in the above said decisions, the complainant cannot be said to be consumer within the meaning of Section 2(1)d(ii) of the Consumer Protection Act. Then the complaint is not maintainable and the same is liable to be dismissed. In the light of the decision on the first point, we need not consider other points complainant is at liberty to seek redressal from appropriate courts.<br /> In the result complaint is dismissed.<br /> <br /> 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.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of June, 2008.<br /> <br /> G. SIVAPRASAD PRESIDENT.<br /> <br /> BEENA KUMARI.A : MEMBER<br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> ad. <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O.P.No.82/2001<br /> <br /> APPENDIX<br /> I.Complainant's witness:<br /> <br /> PW1 : Sukumari<br /> II. Complainant's documents:<br /> <br /> P1 : Photocopy of O.P ticket No.97820 dated 05..04..2000 from General Hospital (HDC), Tvpm.<br /> P1(a) : “ No. 101595 dated 10..04..2000 from “<br /> P2 : Photocopy of out patient ticket No. 38662 dated 05..04..2000 from Medical College Hospita, Tvpm.<br /> P3 bills<br /> 20 Nos. Photocopy of cash bill No.714 dated 02..05..2000 for (1) Rs. 366.20<br /> <br /> (2) : Photocopy of cash bill No. 712 dated 01..05..2000 for Rs.1113/-.<br /> (3) : “ No. 711 dated 01..05..2000 for Rs. 55/-.<br /> (4) : “ No. 729 dated 13..05..2000 for Rs. 161.50<br /> (5) : “ No. 726 dated 10..05..2000 for Rs. 150/-<br /> (6) : “ No. 721 dated 05..05..2000 for Rs. 66/-<br /> (7) : “ No. 713 dated 02..05..2000 for Rs. 66/-<br /> (8) : “ No. 740 dated 20..05..2000 for Rs. 190/-<br /> (9) : “ No. 741 dated 25..05..2000 for RS. 71.50/-<br /> (10) : “ No. 734 dated 16..05..2000 for Rs. 150/-<br /> (11) : “ No. 737 dated 18..05..2000 for Rs.323/-<br /> (12) : “ No. 3356 dated 05..08..2000 for Rs. 55/-<br /> (13) : “ No. 701 for Rs. 150/-<br /> (14) : “ No. 753 dated 17..06..2000 for Rs. 120/-<br /> (15) : “ No. 707 dated 27..04..2000 for Rs. 77.50<br /> (16) : “ No. 727 for Rs. 161.50<br /> (17) : “ No. 725 for Rs. 150/-<br /> (18) : “ No. 3355 dated 10..07..2000 for Rs.210/-<br /> (19) : “ No.3354 dated 05..07..2000 for Rs. 300/-<br /> P4 : Photocopy of advocate notice and postal receipts dated 02..02..2001<br /> <br /> P5 : Photocopy of treatment certificate dated 21..05..2000<br /> <br /> P5(a): “ dated 11..04..2000<br /> <br /> P5(b): “ dated 21..05..2000<br /> <br /> P6 : Original bus ticket No. 929<br /> <br /> III. Opposite parties' witness: NIL<br /> <br /> IV. Opposite parties' documents: NIL<br /> <br /> <br /> <br /> <br /> PRESIDENT<br /> <br /> <br />