Sri. Ashok Kumar J.Dhole<br /> President,<br /> <br /> 1. This complaint is arising out of Complaint no.165/94, as per the order passed by the Hon’ble High Court in M.F.A. No.4202/2004 (R.C.T.) dated 5th December Complaint no.165/94 was originally filed by one Dr.S.D.Shivanna for and on behalf of 34 persons, and after his death, the Complaint was continued by one G.Lingaiah with permission of the Forum. First order was passed by this Forum on 25-8-97 against which an appeal was filed before the Hon’ble State Commission in appeal no.1024/97, the matter was remanded for re-consideration. Thereafter, opportunity was given to both parties and an order was passed by this Forum on 12-7-02. As per said order, the complaint was partly allowed. Opposite Party. Was directed to pay damages of Rs.700 to all 34 passengers (complainants), with interest at the rate of 18% p.a. and cost of Rs.2,000/-. Any how, one complainant named Smt.Kempamma (who is the present complainant) was given liberty to approach Railway Claims Tribunal, claiming damages for having suffered fracture during her journey. It is sufficient to mention here that present Complainant Smt.Kempamma filed M.A. No.2/03 before the Railway Claims Tribunal and her claim was dismissed by order dated 11-03-03, on the ground that the tribunal has not jurisdiction. The complainant Smt.Kempamma approached the Hon’ble High Court of Karnataka in M.F.A. No.4202/04. The Hon’ble High Court was pleased to allow the appeal by it’s order dated 5-12-05, and the complainant was permitted to approach this Forum by filing an application, seeking to re-open her claim in Complaint no.165/94, without regard to the question of limitation. Accordingly, the complainant filed a memo of facts on 2-3-06. On the basis of which, the case was reopened. For the purpose of convenience, it is given as CC 49/06, as the old complaint was for and on behalf of 34 passengers. <br /> 2. Notice was duly served on the Opposite Parties, who appeared and filed additional version and contested the matter. Both parties were given full opportunity to adduce oral and documentary evidence. Complainant has examined CW-1 Dr.Yoganarasimhachar and herself as CW-2. On behalf of Opposite Party no witness was examined. Heard the learned counsels for both sides. <br /> 3. Undisputed facts can be briefly summarised as under:-<br /> Complainant along with 33 other passengers undertook journey from Mysore to Varanasi. There was advanced booking and reservation for their return journey from Varanasi to Mysore by Train No.6040 dated 28.02.1994. As per the Train Ticket and Reservation Slip, the Complainant was allotted a birth in Coach number “S-5”. There is also no dispute that on the date of journey all passengers assembled at Varanasi Railway Station and they found that Sleeper Coach No.5 was not provided in the said Train. As a consequence 33 passengers including the Complainant who got into the Train were required to get down.<br /> 4. It is the simple case of the Complainant, that there was panic among the passengers as they were forced to get down for non-availability of Sleeper Coach. The Complainant was the last lady to get down. The Train started moving and she accidentally fell down between compartment and the platform and suffered fractures and injuries. Thereafter, she was given treatment at Railway Hospital Alahabad.<br /> 5. It is the case of the Complainant that she has suffered injury due to deficiency in service on the part of the Opposite Party and she is entitled for damages of Rs.75,000/-.<br /> 6. The case of the Opposite Party is that the Complainant is not a “Consumer”. Son of the Complainant named D.B.Shivalingu is a Railway Employee and the Complainant had traveled on the pass provided to her son. As it was a free journey, there is no consideration and Complainant is not entitled to claim benefit under the provisions of Consumer Protection Act, 1986. The second contention of the Opposite Party is that there is no deficiency in service. The Complainant allegedly fell down on the platform due to her own negligence. The third contention of the Opposite Party is that proper required treatment was given to the Complainant at Railway Hospital Allahabad. Hence, the claim is exorbitant and unreasonable. Similarly, this Forum has awarded Rs.700/- by it’s Order dated 12.07.2002, hence this claim of the Complainant cannot be adjudicated. For the above reasons, the Opposite Parties prayed for dismissing the Complaint (Claim) of Smt.Kempamma with cost. <br /> 7. Points for our consideration are as under:-<br /> 1. Whether the Complainant is a “Consumer” as defined under 2(1)(d) of Consumer Protection Act, 1986?<br /> 2. Whether the Complainant has proved deficiency in service on the part of the Opposite Party?<br /> 3. If so to what relief she is entitled?<br /> 8. Our findings are as under:-<br /> Points No.1 & 2 : Affirmative.<br /> Point No.3 : As per final Order.<br /> <br /> REASONS<br /> <br /> 9. POINT NO.1:- It is an admitted fact that son of the Complainant named D.B.Shivalingu is a Railway Employee. It is also an admitted fact that Railway has issued passes to her son and his family members to undertake journey and the Complainant has availed such benefit and had undertaken journey to Allahabad in 1994. It is also an admitted fact that return journey was confirmed by Train No.6040 commencing 28.02.1994 and the Complainant was provided a Sleeper Birth in Coach No.“S-5”. There is also no dispute that on the date of alleged accident such compartment was not provided by the Railway Administration.<br /> 10. The Learned Counsel for the Opposite Party Sri.H.P.Srikanth vehemently argued and submitted that the word “Consumer” as defined under section 2(1)(d) pre-supposes hiring of any services for a consideration. He further submitted that the Complainant or her son have not paid any consideration, hence they cannot claim themselves as “Consumers”. Such proposition put forth by Learned Counsel for the Opposite Party cannot be accepted in view of the principle laid down by the Hon’ble Supreme Court. In the case of Regional Provident Fund, Commissioner –Vs- Shivakumar Joshi reported in 2000 CTJ page-1 (SC) (Consumer Protection Act, 1986), it was held that the facilities provided by the scheme under Provident Fund Act were services. It was further held that even if the Administration charges for running the scheme are paid by the Central Government and no part of the same is paid by the employee, the services of Provident Fund Commissioner in running the scheme shall be deemed to have been availed for consideration by Central Government for the benefit of employees, who would be treated as “Beneficiaries”, within the meaning of that word used in the definition of Consumer. <br /> 11. The above decision was followed by the Hon’ble High Court of Kerala. In the case of Kerala State Co-operative Employees Pension Board –Vs- Consumer Disputes Redressal Forum, Iddukki report in 2004 CTJ page-317 (Kerala HC).<br /> 12. The ratio laid down by the Hon’ble Supreme Court in the above decision is clear. In that instant case, the Complainant Smt.Kempamma was provided a journey pass by the Railway administration as her son D.B.Shivanna was working as Railway Employee. Even if no charges are paid by the Complainant, it is necessary to be deemed that such charges were paid by her son D.B.Shivanna in the form of service render to the Railway. In other words, the Complainant is beneficiary and a “Consumer” as defined under section 2(1)(d) Clause (ii) of the Consumer Protection Act, 1986. Hence, we answer point no.1 in the affirmative.<br /> 13. POINT NO.2:- The second contention of the learned counsel for the Opposite Party is that there is no deficiency in service. He brought to the notice of Forum that there were no allegations of moving train and sudden fall of the Complainant from such train, when the original Complaint was filed. He further submitted that this was recent development in the affidavit of the Complainant. The Learned Counsel further relied on the Maxime “Volunti-non-fit injuria” (voluntary injury gives no damages since there is no cause of action). Even assuming for arguments sake that without indulgence of any Railway Staff or movement of the Railway and the Complainant had fall when she was alighting from the Railway the answer is quite simple. If the Opposite Party would have provided Sleeper Compartment No.5 (S-5), no question would been arisen, for getting down from the train just prior to it’s departure. In other words, the Complainant and other 33 passengers were compelled and forced to get down from the Train No.6040 on 28.02.1994 due to gross negligence of the Opposite Party in not providing such Sleeper Coach. The Complainant was aged about 60 years even assuming that there was no direct contribution on the part of the Railway, we have to assume such nexus when a passengers aged about 60 years was suddenly asked and made to get down from the train, just prior to it’s departure for non-availability of Sleeper Coach. So, the case of accident cannot be called as “Voluntary Injury”. Hence, the injury suffered by the Complainant has got directed nexus with act of the Opposite Party. <br /> 14. It is further contended by the Learned Counsel for the Opposite Party that the Complainant was awarded an amount of Rs.700/- in Complaint No.165/94 and she is not entitled for another Order, such argument is also not acceptable, in view of the direction given by the Hon’ble High Court in MFA No.4202/04. The Hon’ble High Court found that Complainant was not able to avail justice as Section 124(A) of the Railway Act was amended with effect from 1-8-94, alleged accident took place prior to such amendment that is on 28.02.1994. The Hon’ble High Court has observed about the powers of this Forum to adjudicate the claim of the Complainant without questioning the limitation. It has also observed in para-3 of it’s Order that this Forum is not precluded from considering the claim of the Complainant. In view of the above observations, we come to conclusion that there is deficiency in service on the part of the Opposite Party and Complainant is entitled to seek proper relief. <br /> 15. Now, coming to question of compensation/damages, we have to take number of facts into consideration. The Learned Counsel for the Opposite Party strongly challenged the evidence of Dr.Yoganarasimhachar, who has treated the Complainant at Mysore from 07.03.1994 up to 07.04.1994 in Government K.R.Hospital Mysore. The Learned Counsel for the Opposite Party submitted that the treatment given by CW-1 to the Complainant was for some fracture which occurred subsequently and not on 28.02.1994. We do not find any substance in such argument. Complainant has produced the discharge summary report given by the Railway Hospital Alahabad, this document is not disputed by other side. It is clearly mentioned in this document that the Complainant who was aged about 60 years was treated as inpatient from 01.03.1994 (after midnight between 28.02.1994 and 01.03.1994) upto 04.03.1994. It is stated by the Complainant that with the support of her relative, she returned to Mysore. Journey requires more than 48 hours. The Complainant might have reached Mysore either on 06.03.1994 or 07.03.1994. Cw-1 Dr.Yoganarasimhachar was working as H.O.D. of the Orthopedic Department in the Government K.R.Hospital, Mysore. He has given clear evidence that the Complainant had the following injuries:-<br /> a) The Complainant had swelling and haemetoma over the pelvic region. She was not able to move the limb at that time.<br /> b) There was crepitus (grating sensation) over the pelvic region.<br /> c) On taking X-ray <br /> Found there were a fractures of superior and inferior pubic ramus. It was displaced. There was disruption of left sacroiliac joint.<br /> d) There was also fracture of Ischio pubic ramus on right side of pelvis. <br /> She was treated in our hospital from 07.03.1994 up to 07.04.1994 as Inpatient. She was treated conservatively with fracture. The Complainant was advised to come for further checkup after 6 weeks. During checkup I examined the Complainant and found that fractures were uniting. I advised her to use crutches. <br /> <br /> 16. The evidence of C.W.1 is not shakened in Cross-examination. He further states that Complainant is having nearly 60% disability because it was a partial permanent disability. Opposite Party has not examined it’s Medical Officer who admitted Complainant and gave treatment at Alahabad between 01.03.1994 to 04.03.1994 to show that the injury which were recorded in the discharge certificate were different from the injuries for which she was treated at Mysore. On the contrary, the discharge certificate clearly mentions fractures of pelvis in both sides. <br /> 17. For the above reasons, we come to conclusion that there is no justification in the argument advanced by the Learned Counsel for the Opposite Party. Now, coming to the quantum of damages, we find differences from stage to stage. The first complaint which was filed by Dr.S.D.Shivanna on 18.05.1994 there was gross claim of Rs.74,907/- including the refund of excess fare etc. There was no specific amount mentioned in that Complaint regarding injury suffered by Complainant Kempamma. Anyhow, from the objection and additional objection it is clear that an amount of Rs.50,000/- was claimed before the Railway Authorities. In the subsequent affidavit filed by G.Lingaiah (who was permitted to prosecute the Complaint), the claim for injury was shown as Rs.25,000/- and it is further mentioned in the affidavit the total claim including pain, suffering treatment etc. was Rs.50,000/-. After the matter is reopened, the Complainant has filed affidavit, claiming an amount of Rs.75,000/-. It is a case of unfortunate lady who suffered accident at the age of 60 years could not get proper compensation due to various technicalities for a period of 12 years. Having regard to the age, sufferings, and other relevant aspects, we come to conclusion that Complainant Smt.Kempamma is entitled for damages of Rs.50,000/-. <br /> 18. She has also mentioned in her affidavit that though she is having two sons and two daughters, she is residing alone and her daughters are married. Hence, the Complainant requires life long financial support during her old age due to of such disability. We do not intend to award any past interest as the amount has been adjudicated only by this Order. Anyhow, we feel it just and proper to award future interest and cost of Rs.2000/-. So point no.2 is answered accordingly. For the forgoing reasons, we proceed to pass the following Order.<br /> <br /> ORDER<br /> <br /> Complaint is allowed as under:<br /> 1. The Opposite Parties are directed to pay an amount of Rs.50,000/- to the Complainant within a period of 2 months from the date of receipt of this Order with cost of Rs.2000/-.<br /> 2. If Opposite Parties fails to pay such amount within the period mentioned above, Complainant is entitled for future interest at the rate of 9% p.a. from such date, till the date of payment. <br /> 3. Give a copy of this Order to Complainant and send a copy of this Order to both Opposite Parties by R.P.A.D.<br />