STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 170 of 2019

The General Manager, East Central Railway, Hajipur, At/P.O., P.S. & District- Hajipur (Bihar) through the Senior D.C.M. East Central Railway, Sonepur

                                                                                                                                                                                … Appellant

Versus

1. Kishore Choudhary, Son of Late Yogendra Choudhary.

2. Sangita Devi, Wife of Late Yogendra Choudhary, Resident of Village/P.O.-Olapur Gangaur, PS- Gangaur, District- Khagaria (Bihar)

                                                                                                                                                                            …. Respondents

Counsel for the Appellant: Adv. Bipin Kumar Rao

Counsel for the Respondents: Adv. Shive Kumar

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Dated 03.08.2023

As per Sanjay Kumar, President.

O r d e r

1. Present appeal has been filed by on behalf of East Central Railway, Hajipur through its General Manager for setting aside the judgment and order dated 27.11.2018 passed by the Ld. District Consumer Forum, Khagaria in Complaint case no. 09 of 2018 whereby and whereunder appellants have been directed to make payment of Rs. 8,00,000/- and further directed to pay Rs. 10,000/- towards mental and physical harassment and Rs. 2,000/- as cost of litigation within 2 months from the date of passing of the order failing which interest @6% shall become payable from date of filing of complaint petition till date of payment.
2. Briefly stated the facts of the case is that claimants are parents of deceased Sintu Kumar Choudhary age about 15 years of village and PO- Olapur Gangaur, PS- Gangaur, District- Khagaria who purchased a railway ticket from Pasarata Railway Station from Imali Railway station on 09.11.2017 and boarded Katihar, Barauni passenger train but deboarded the train in Khagaria and boarded Train no. 55567 coming from Saharsa for Samastipur, however due to heavy rush and jerk he fell down on the track and crushed by running train and died at about 1:00 P.M.
3. U.D. case no. 10 of 2017 was registered in Gangaur police station (Khagaria) on the written complaint of mother of deceased. Police took the dead body for postmortem which was performed in Sadar Hospital, Khagaria and post mortem report was prepared.
4. Claim form dated 16.12.2017 was send by registered post to opposite party for payment of compensation of Rs. 8,00,000/- however, no response was received then a legal notice was send to opposite parties by registered post dated 24.01.2014 but no reply was received as such complainant filed a complaint case before the District Consumer Forum, Khagaria for payment of compensation of Rs. 8,00,000/- with interest as well as compensation for physical and mental harassment and cost of litigation.
5. Notices were issued to opposite parties but inspite of valid service of notice they did not appear as such case proceeded ex-parte against them.
6. Complainant in support of their complainant case has submitted following evidences which have been marked as exhibits-(I), Railway ticket ordinary dated 09.11.2017-(II), FIR of UD case no. 10 of 2017 Gangaur PS-(III), Postmortem report-(IV), letter send to opposite parties& Legal notice.
7. The District Consumer Forum held that although Railway claims Tribunal Act, 1987 oust jurisdiction of civil courts and any other authority but since consumer Forum is in addition to other remedies available to aggrieved person as such District Consumer Forum has jurisdiction to entertanin complaint case arising out of any untoward incident suffered by a bonafide passenger while traveling in a train.
8. The District Consumer forum further held that complainants are consumers and opposite parties are service provider within the meaning of Consumer Protection Act, 1986.
9. The District Consumer Forum on the basis of evidence available on record held that deceased was a bonafide railway passenger who was travelling from train and due to heavy rush and jerk fell down from the train on the railway track and was run over by train and died and same being an untoward incident within the meaning of section 123 and 124A of the Railway Act, 1989 as such complainants are entitled for compensation of Rs. 8, 00,000/- and non-payment of which is deficiency in service of Railway and accordingly allowed the complaint case.
10. Aggrieved by judgment and order dated 27.11.2018 passed in Complaint case no. 09 of 2018  passed by District Consumer Forum, Khagaria. Appellants/Railways have preferred this appeal.
11. The only ground raised by counsel for the appellant is that complaint case was not maintainable before the District Consumer Forum and District Consumer Forum has wrongly assumed its jurisdiction and such claim are only maintainable before Railway claims tribunal constituted under the Railway claims Tribunal Act, 1987.
12. The issue with respect to jurisdiction of Consumer Forum to entertain claim cases arising out of any untoward incident as defined U/s 123 and 124A of Railway Act, in which railway passenger traveling on a train suffers grave injuries or dies is maintainable or not has recently been decided in case of Western Railway vs Vinod Sharma on 18 January, 2017 by National Consumer Disputes Redressal Commission which reads as follows:-

                  17.    A plain reading of the provisions quoted above from the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 indicates that an elaborate mechanism has been laid down for providing compensation in the event of accidents, untoward incidents and allied matters, during the course of the operations, carried out by the Railways and for that purpose, the jurisdiction, powers and authority of the Claims Tribunal have been laid down.  It is to be determined, however, whether keeping in view the above provisions, the consumer fora shall also have the jurisdiction to deal with the matters, involving railway accidents.  The issue has come up for consideration from time to time before the Hon'ble Apex Court and this Commission as well.  It has been observed that the Consumer Protection Act is a special legislation, enacted to provide better protection for the interests of consumers in diverse fields.  It is true that for specific sectors such as banking, finance, insurance, supply of electricity, entertainment etc., appropriate mechanism has been laid down in the respective statute, to provide suitable relief to the consumers as per requirements.  However, the Consumer Protection Act is a beneficial legislation, specially enacted for the protection of the consumers and provides an additional remedy in the shape of Section '3' of the Consumer Protection Act, which clearly lays down that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force.  A harmonious construction of the provisions contained in the Consumer Protection Act and the Railways Act etc. shall indicate that the jurisdiction of the consumer fora cannot be barred, even if the provisions to provide compensation are laid down in the Railway legislation.  The Hon'ble Supreme Court in their order in Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha (dead) through LRs, I (2004) CLT 20 (SC) and in Trans Mediterranean Airways vs. Universal Exports, IV 2011 CPJ 13(SC) observed that, " having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section '3' seeks to provide remedy under the Act in addition to other remedies provided under other Acts, unless there is clear bar.

                      18.  In State of Karnataka vs. Vishwabarathi House Building Co-op. Society, I (2003) CPJ 1 (SC), the Hon'ble Supreme Court observed, that by reasons of the provisions of Section '3' of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws.  The said Act supplements and not supplants the jurisdiction of the Civil Courts or other statutory authorities.

                 19.    Based on the discussion above, it is held that the consumer fora do have the jurisdiction to deal with the present case and hence, the consumer complaint cannot be dismissed on the ground of lack of jurisdiction by the consumer fora.

13. For the reasons as stated above the appeal filed is devoid of any merit and is accordingly dismissed.

(Ram Prawesh Das)                                                                                                                (Sanjay Kumar,J)

       Member                                                                                                                                 President

Md. Fariduzzama