DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.73/2011

Smt. Raj Kumari

W/o Late Sh. Arun Kumar Singh,

R/o WZ-430-E, Naraina Village,

New Delhi                                                                                                                                                                                                                                                                                                         ….Complainant

Versus

Northern Railway,

Baroda House,

New Delhi - 110001                                                             ….Opposite Party

       Date of Institution    :         21.02.2011

       Date of Order            :         28.01.2022

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Sh. U.K. Tyagi

The case of the Complainant is that on 23.04.2008 husband of Complainant No.1 and father of Complainant No.2 to 4, namely
Sh. Arun Kumar Singh was travelling in Lichchavi Express. While going from Delhi to Chhapra on a valid ticket, the said train was stopped at Jalesa Railway Station(under the jurisdiction of Aligarh P.S.) for giving pass to Rajdhani Express. It was hot season. No adequate drinking facility was provided by the Railway Authorities (hereinafter referred as OP) on the platform No.1 as alleged by the Complainants. Driven by the thirst, Sh. Arun Kumar Singh went to platform No.2 for taking water. On return from platform No.2, he was hit by Rajdhani Express train and died at spot.

            Complainants further added that the Railway Authorities were duty bound to provide adequate drinking water at the each platform and in train itself. As such, non-availability of adequate potable water amounts to deficiency in service and gross negligence on the part of OP. It was also averred that had the water been available in the train or on the platform, there was no occasion for the deceased to venture on to the other platform in search of water.  The Complainants also filed claim before Railway Claims Tribunal and same was rejected on the ground that the deceased was not a bonafide passenger of Rajdhani Express Train with whom he met an accident.

            OP, on the other hand has stated that once the matter is decided by Railway Claims Tribunal under Section 13 of the Railway Claims Tribunal Act, 1987, the claimant/complainants should have preferred an appeal as provided in the Act. It is further stated that this forum does not have jurisdiction to entertain and adjudicate upon the dispute involved in the complaint. It is not a consumer dispute. OP also referred the Section 13 of the said Act, where it is provided that no other authority or court can entertain, once the matter is referred under the said section. It is also averred that the deceased was not travelling on specific ticket by which it can be inferred that only the deceased was travelling on the said ticket as the said ticket was general in nature having no name of the deceased whereas the name, age etc. are mentioned in the specific ticket by which, the identity of person can be ascertained. It was also argued by the Ld. Counsel of the OP that there were also two water hydrant on the platform where the aforesaid Lichchavi Express was made to park but no proof was advanced whether these hydrants were in working condition or not.

            The rejoinder on the part of Complainants, is also filed. Both the parties have filed evidence by way of affidavits and written arguments. Oral arguments heard and concluded.

            The Complainants have adduced the copy of judgment of the National Consumer Disputes Redressal Commission in the case of Union of India & others v/s Shiv Devi Agarwal and another (2010) CPJ 170(NC) in support of their claim. This Commission has examined the ratio of this judgment as well as other documents placed before us and found the some relevant paras are more attuned to the facts of this case. Some relevant paras are produced here as under:

“The foremost objection is in regard to the lack of jurisdiction of the State Commission or, for that matter, any consumer Forum established under the Act, to entertain and decide a complaint of the nature which was filed before the State Commission. The basis of the said objection is two-fold: first, that after the enactment of the Railway Claims Tribunal Act, 1987 (54 of 1987), the jurisdiction to entertain and decide any claim like the one made in the present complaint could not be exercised by a Consumer Forum established under the Act and secondly, that there existed no relationship of ‘consumer’ and ‘service provider’ between the deceased and the Railway Administration. In the impugned order, the State Commission considered both these objections in considerable detail and going by the definition of the term ‘consumer’ as appearing in Section 2(1)(d) and the ‘provider of service’ within the meaning of the Act and the facts and circumstances of the case, viz., that the deceased had two railway tickets- one from Kherli to Bandikui Railway Station and other from Bandikui to Jaipur, both dated 02.08.2009 which were recovered from the trouser pocket of the deceased and seized by the police and that the deceased was to undertake the railway journeys on that route for which he was present at Bandikui Railway Station awaiting the arrival of the train, came to the conclusion that the deceased was a ‘consumer’ within the meaning of the Act and the Railway Administration was a “service provider”, not only for providing but also in regard to the provision of other facilities at the platform like free drinking water and maintenance of the said service in a proper state. In doing so, the State Commission discarded the defence version that some unknown persons had put the two railway tickets in the pocket of the deceased so that a claim could be made later on. Going by the averments, allegations and the established facts the State Commission came to the finding that the deceased had availed of the services of the Railway Administration and the hydrant installed on the platform of Bandikui Railway Station was not build and maintained properly and no proper safeguards were observed to ensure avoidance of any untoward incident like the present one in which the deceased had died due to a part of the hydrant structure collapsing and falling on him when he went to drink water. Accordingly, the State Commission held the Railway Administration guilty of deficiency in service. As regards the challenge to the jurisdiction of the State Commission on the ground that it was barred by the provisions of the Railway Claims Tribunal Act, 1987, Sections 123, 124, 124A, and 125 of the Railways Act, 1989 as also Section 3 of the Consumer Protection Act, 1986, came to the conclusion that it had the requisite jurisdiction to entertain the complaint. In doing so, the State Commission placed reliance on some decisions of this Commission”. Further added “Going by the facts and circumstances of this case and the marked correspondence thereof with the facts, circumstances of the case cited above, the death of Raj Agarwal cannot be said to amount to an “accident” or an “untoward incident” as the said death is not covered under the definitions of “accident” as appearing in Section 124 and of “untoward incident” under Section 123(c) of the Indian Railways Act, 1989. Therefore, it is quite reasonable to conclude that jurisdiction of the Consumer for a established under the provisions of Consumer Protection Act, 1986 to entertain and decide the complaint in the present case for awarding compensation for accidental death is not barred. We, therefore, see no merit in the objection of the appellants in this regard”.

                Applying the ratio of above judgment, there is no doubt-about the application of definition of consumer and case falls under the four corner of definition as appearing in Section 2 of the Consumer Protection Act. The deceased was travelling with valid ticket, as such, deceased was a ‘Consumer’. We feel that the Railway Authority i.e. OP is guilty of deficiency in service for their failure in not providing adequate safeguard in the form of fencing between two tracks to avoid such a mishap. As is noticed in the instant case, OP has not shown whether adequate safeguard in the form of fencing etc. was provided or not. OP has tried to deflect the issue that there was movement of pantry staff carrying the drinking water during summer season but no substantive evidence is advanced. As far as the stand of OP is concerned that the deceased has violated the rules and norms of the Railway while crossing the railway track. We feel that had the adequate fencing between two tracks been provided, and adequate water facility has been provided in each platform this mishap could have been avoided.

                In view of above facts and circumstances of the case, this Commission finds the OP guilty of deficiency in service and gross negligence on its part. Accordingly, OP is directed to pay the compensation to the tune of Rs.5,00,000/- to the Complainant within two months from the date of receipt of this order and alongwith interest @6% p.a. from the date of institution of case in this Commission failing which interest shall be levied @9% p.a. till realization.

File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.