Tamil Nadu

StateCommission

FA/312/2014

UNION OF INDIA, GENERAL MANAGER - Complainant(s)

Versus

S.C. MARIAPPAN - Opp.Party(s)

K. KUMARAN

28 Apr 2022

ORDER

 

 

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

             Thiru.R.VENKATESAPERUMAL … MEMBER

 

F.A. No.312 of 2014

 

(Against the Order, dated 07.04.2014, in C.C. No.141 of 2013, on the file of  the DCDRF, Chennai-North)

 

                              Orders pronounced on: 28.04.2022

 

The Union of India,

rep. by the General Manager,

Southern Railway,

Chennai 600 003.                                                                                                                        … Appellant/Opp. Party

 

vs.

 

S.C.Mariappan,

S/o.Chellam,

No.7/1, Thatchi Arunachalam Street,

Mylapore,

Chennai 600 004.                                                                                                                 … Respondent / Complainant

 

             For Appellant                   :  M/s.K.Kumaran

             For Respondent               :  M/s.N.Raj Kumar

 

This First Appeal came up for final hearing on 19.04.2022 and, after hearing the arguments of the counsels appearing for the parties  and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

             This Appeal has been filed as against the Order, dated 07.04.2014, passed by the DCDRF, Chennai-North, in C.C. No.141 of 2013, whereby, the complaint filed by the respondent herein came to be allowed by directing the OP/appellant herein to pay him a total compensation of Rs.10.60 Lakh with interest @ 9% p.a. from 31.01.2001 till the date of payment, besides costs of Rs.10,000/-.

 

             2. For the sake of convenience, the parties shall be referred to in the course of this order, as per their respective rankings before the District Forum.

             In brief, the case of the complainant, as given in the complaint filed before the District Forum, is as follows:-

              The complainant, a Diploma Holder in EEE (Electrical and Electronics Engineering), was employed with M/s.Consul Consolidated (P) Ltd. at Secundarabad, Andhra Pradesh (A.P.), drawing a carry-home salary as nearly as Rs.10,000/- per month.   In January, 1998, after spending the Pongal Holidays at his native place/Rajapalayam, for returning to the work place at A.P., he embarked upon a two-staged journey viz., first stage – from Rajapalayam to Madras and the second stage – from Madras to Secundarabad.  On the date of journey/19.01.1998, due to non-availability of reserved tickets as it was a festival season then, he purchased a 2^nd class unreserved ticket bearing No.00295 by paying Rs.200/-.  One of his relatives by name Mr.Muthukrishnan also accompanied him in the travel by holding ticket No.26265.  Both of them boarded Train No.6120/Nellai Express at Rajapalayam, by also carrying a brand new Suzuki Samurai Bike  in the same train for his personal use at Secunderabad.   As there was a heavy crowd in the unreserved compartment, the complainant and his relative detrained at Sivakasi and enquired the Travelling Ticket Examiner (TTE) Mr.Haridoss about availability of any berth in the reserved coach, for which, the TTE, at the outset, consented to verify without denying existence of such a chance.  At that time, since the train was signalled to proceed ahead, the TTE rushed to Coach No.S-10 and the complainant & his relative followed him to know the availability and, even at that stage, the TTE did not prevent them from accompanying him into the said Coach. While so, the TTE, who seemed to be considerate until a little bit earlier, fumingly asked them to detrain at once without even mindful of the fact that the train was moving then at a brisk speed.  The complainant pleaded with the TTE to let them travel in the said coach till the arrival of the next station at least, by expressing his willingness to be fined for the same, but, the TTE was determined to see them out of the said coach.    While both of them were explaining him the difficulties in getting down from the train that was speeding up considerably, the enraged TTE, fiercely pushed off the complainant to fall on his relative-Muthukrishnan, who, in turn, fell on the platform and became unconscious after suffering severe head injury on the rear side with profuse bleeding.  The complainant, who caught hold of the handle at the side entrance of the compartment and was dangling riskily, yelled out for help, but, the TTE unmindful of the predicament of the complainant as well as the alarmed outcries of the appalled commuters in the compartment, slammed and bolted the door, as a result, he lost the grip and was dragged in between the station platform and the running train, resulting in his left hand, left leg above knee and the right foot crushed off by the wheels of the train, leaving the complainant unconsciously drenched in a pool of blood.  The abnormally rash and nefariously negligent act of the said TTE left the life and limbs of the complainant damaged and un-rectifiable forever.   At the outset, he was treated at the Railway Hospital, where he was given only the first aid, and thereafter, he along with Muthukrishnan was transferred to Madurai Rajaji Government Hospital.  He had to visit scores of private hospitals including Madurai Apollo Hospital and he spent about more than Rs.10 Lakh, disproportionate to his income and the properties he own, in search of treatment that could lift him again to lead a normal life, but in vain.   Had the TTE exercised the duty of care expected of him without being negligent of the fact that the State acts through the employees like him to carry out or discharge such duty without any blemish and that any failure on that front would clamp liability on the State to compensate properly the wronged under the theory of master-servant relationship and had he restrained himself from pushing the complainant out from the speeding train, the accident would not have occurred at all.  Although the Railway Police, Viruthunagar, received a complaint in that regard from the Station Master, Sivakasi, they issued only a certificate and whenever the complainant insisted upon them to register an FIR in respect of the accident, it was always stated as if it was the complainant, who slipped from the train and not otherwise.  They never visited the complainant either at the Hospitals where he was treated or at the places where he was kept for further treatment to record any first hand statement from him, as per law, whereupon, he sent a written complaint, dated 29.01.1998, by registered post with acknowledgment to the Railway DIG, Trichy and the Railway Police, Virthunagar, explaining in detail as to what had happened on 19.01.1998 that ultimately led to the accident in which he lost the limbs/organs, but, in spite of receipt of the said complaint by the railway authorities, no action was taken, thus, the efforts of the complainant to set the law in motion once again failed.    Since the Railway Police, Viruthunagar, remained deliberately inactive in spite of due information conveyed to the higher authorities and shelved the matter altogether without registering an FIR against the TTE either on the formal complaint lodged by the Railway Station Master, Sivakasi, or on the written complaint, dated 29.01.1998,  he sent a legal notice, dated 01.03.1999, to the OP and others including the TTE, explaining in detail the overt-acts of the TTE that led to the accident, and claiming Rs.50 Lakh as compensation for the grievous injuries and the enormous percentage of permanent disability that would not have been sustained but for the deliberate violence of the TTE.  Though the said notice was received by the OP, no reply was given by them to the complainant.   The accident stemmed from the deliberate violence and the ultimate negligence of the TTE working under the OP and the consequent loss of the complainant’s left hand, left leg above knee and the right foot was only due to the direct consequences of the overt-acts on his part.  Thus, by alleging deficiency in service, he filed the complaint, seeking the District Forum to direct the OP to pay Rs.20 lakh as compensation for the loss of limbs & disfigurement suffered by him in the accident that occurred due to the negligence of the OP’s servant viz., Haridoss/TTE and also for the mental agony/torture suffered by him on account of such negligence.

 

             3.  The said complaint was resisted by the OP by filing a written version, wherein, among other things, it is stated thus:-

             The complainant had purchased the ticket for Rs.200/- and, for the cost paid, the Railways had rendered its service correctly by ensuring safe and timely reaching of the train at the destination,  hence, they shall not be responsible for the unsafe practice of the complainant in carelessly boarding a locked sleeper coach, when the train was in motion.  At that time, the TTE inside the coach did not know any of the complainant’s acts of negligence and, in fact, even before departure of the train at Sivakasi, he conveyed to the complainant that there was no vacancy in the reserved coach.   There is no evidence to prove that the TTE had any motive to take revenge on these strangers, rather, it is the complainant, who has motive to prefer a heavy claim with the Railways by falsely alleging against the TTE, who is an Orthopedically handicapped person not able to do anything forcibly other than his routine duties.  The allegations against the TTE were not established during the enquiry in connection with the complaint made by the complainant after the incident.  The complainant did not file any case against the TTE for the alleged criminal offence.  In fact, the TTE was inside the coach to deal with passengers after locking the door.  The said alarming cry was not heard by him since his full attention was focussed on the passengers.  The complainant was immediately taken to the Government Hospital by Mr.Erulappan, Station/Master, Sivakasi, who was on off-duty and no allegation was made that the TTE pushed him down from the moving train causing serious injuries and loss, thus, the said allegation is only an after-thought. No punishment was awarded to the TTE for want of proper witness and evidence to prove the incident that major injury was caused to the complainant due to his negligence and the burden of proof still lies on the complainant.  The claim comes under the purview of ‘untoward accident’, as specified in the provisions of the Railways Act, 1989. The Railways had taken sufficient precautionary steps to educate the passengers by giving cautionary announcements viz., ‘Passengers are hereby cautioned that entraining and detraining a moving train is dangerous and liable to result in injuries or even in death.  Railways, under Section 124-A, are not responsible for any loss or disability sustained by the passengers attempting such an Act.’  By neglecting and violating all such cautions, the complainant carelessly entrained in the reserved coach with which he was in no way connected and unfortunately, he slipped down from the foot-board of the coach.  Thus, there being no deficiency in service on the part of the Railways, the complaint is liable to be dismissed with costs.

 

             4.  In order to prove the claim and counter-claim, the parties filed their respective proof affidavits and, while the complainant marked 11 documents as Exs.A1 to A11, one document was marked by the OP as Ex.B1.  The District Forum, after consideration, concluded that the complainant has established the negligence and deficiency in service on the part of the OP and ultimately, by allowing the complaint, directed the OP to pay Rs.9,60,000/- as compensation towards loss of income and Rs.1,00,000/- for the mental agony, thus, in total, Rs.10,60,000/-.  Aggrieved thereby, the OP/Railways have come up with the present appeal.

 

             5.  Learned counsel for the Railways/OP, after narrating the case details & facts in their point of view, would state that, on the date of incident, the complainant, who had boarded the unreserved compartment of Nellai Express at Rajapalayam, after arrival of the said train at Sivakasi Railway Station, alighted with the intention of travelling in a reserved coach with the unreserved ticket and, at that time, when the train started moving, he and the other passenger jumped onto the foot-board of Coach/S-10 and, while they were struggling to get inside the said coach, both of them lost their balance and fell down one after the other, as such, the instance of accidental fall is an ‘untoward incident’ as defined in Section 123 (c) (2) of the Railways Act, 1989, that states ‘untoward incident means’ - ‘accidental falling of any passenger from a train carrying passengers’.  By stating that compensation on account of any untoward incident is dealt with under Section 124A of the Railways Act, he took us through the said provision that runs to the following effect,

      “124A. Compensation on account of untoward incident.—When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:”

Simultaneously, after drawing our attention firstly to Section 13 of the Railway Claims Tribunal (in short RCT) Act, 1987, which is re-produced hereunder,

     “13. Jurisdiction, powers and authority of Claims Tribunal.—

(1) The Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any civil court or a Claims Commissioner appointed under the provisions of the Railways Act,—

(a) relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for—

(i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;

(ii) compensation payable under section 82A of the Railways Act or the rules made thereunder; and

(b) in respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.

 [(1A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of section 124A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any civil court in respect of claims for compensation now payable by the railway administration under section 124A of the said Act or the rules made thereunder.]

(2) The provisions of the  [Railways Act, 1989 (24 of 1989)] and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act”,

and secondly, to Section 15 of the RCT Act, 1987, which is given below,

     “15. Bar of jurisdiction.—On and from the appointed day, no court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in [sub-sections(1) and (1A)] of section 13.”,

learned counsel would argue that a conjoint reading of the above referred provisions would clearly show that accidental fall of a passenger from the train being an ‘untoward incident’ as defined under Section 123 (c) (2) of the Railways Act, 1989, for claiming compensation under Section 124-A of the said Act in respect of such untoward incident, as per Section 13 (1A) of the RCT Act, 1987, only the RCT is vested with the jurisdiction to try those cases.  According to the learned counsel, since there is a specific bar under Section 15 of the RCT Act that no court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in Sub-section 1A of Section 13, and also, as per Section 3 of the Consumer Protection Act, 1986, its provisions shall be ‘in addition to’ and ‘not in derogation to any other law for the time being in force’, the consumer forum has no power or authority to deal with the complaint related to any untoward incident of railways.  In support of the said submission, learned counsel relied upon a handful of decisions including the one reported in CDJ 2001 (Cons.) No.017 (Union of India vs. Sri Ramjee Enterprises and another), 2008 (1) CPJ 478 NC (Jatinder Chand Juneja vs. Union of India and others), etc. for the proposition that, in view of the bar contained under Section 15 of the RCT Act, 1987, the Consumer Fora has got no jurisdiction to try the cases covered under Section 13 of the RCT Act.

             Learned counsel for the OP, by next pointing out that the later Act will prevail over the earlier one and the Special Law over the General Law and that the CP Act is of the year 1986 while the RCT is a 1987 Act, would submit that, as such, the later Act/RCT Act will prevail over the CP Act.  According to him, both the Acts being special laws, insofar as the claim for compensation over any railway untoward incident is concerned, only the RCT Act shall be deemed to be the special law, and thus, the CP Act is a general law. In view of such clear statutory bounds, the District Forum ought not to have entertained the complaint.  At any rate, since the accident had occurred only due to the own fault of the complainant and further, as against the ticket fee of Rs.200/-, the Railways had rendered their services correctly by ensuring safe and timely arrival of the train at the destination, there is no scope to allege any deficiency against them.  Even assuming that the alleged acts have been committed by the TTE, he is liable to face criminal proceedings only and there is no scope in the consumer law for treating an alleged criminal liability  either as negligence or deficiency in service so as to render the railway administration responsible there-for. Moreover, the complainant, at paragraph No.15 of the complainant would state that the TTE was subjected to departmental enquiry and subsequently demoted,  therefore, now, he cannot have any grievance. All those crucial aspects have not been taken into consideration by the District Forum and thus, the impugned order that suffers from both factual and legal infirmities is liable to be set aside, he pleaded. 

 

             6. Countering the above submissions, learned counsel for the complainant would submit that, on the date of accident, when the complainant and his relative/Muthukrishnan approached the TTE at the entrance of S-10 Coach with the door open, the TTE pushed them off apart from slamming the door which led to the tragedy crippling the entire life and livelihood of the complainant.  The defense taken in the version that the complainant had a motive to prefer a heavy claim with the Railways by falsely alleging against the TTE is nothing but an immature allegation. The S-10 coach was in the far end of the platform at Sivakasi Railway Station and the complainant boarded the said coach from the adjacent unreserved compartment when it was not in motion, but the TTE obstructed the complainant and his nephew for nearly 200 meter and by then, the train started moving, however, the complainant was prevented from getting into the coach.  Since the door was slammed on the complainant, he had fallen in the gap between the platform and the track, almost in the mid section of the platform and thereby, he met with the gruesome accident.  The Railway Police ought to have conducted a detailed enquiry but they did not do so.  The complainant was never summoned for any enquiry and, for the legal notice, dated 01.03.1999, issued by him to the OP and the TTE, neither any reply was ever sent despite receipt of the same by them on 03.03.1999 and 06.03.1999 respectively nor any outcome of the enquiry was furnished.  Since the OP never conducted a fair enquiry on the incident against the TTE by summoning the complainant, absolving him of his liability for the accident is totally against all fairness and principles of justice.

             On the jurisdiction aspect, learned counsel submits that, in the present instance, deficiency in service on the part of the OP/Service Provider needs to be tested on the anvil of Section 2 (1)(g) of the CP Act, which reads as follows:-

     “ ‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;”

and elaborates that, when the specific case of the complainant that he was pushed down by the TTE from the moving train, has been consistently denied by the OP, his representation/written complaint under Ex.A5, dated 29.01.1998, receipt of which was acknowledged by the Railways under Ex.A6, dated 12.02.1998, ought to have been decided in the manner known to law by conducting a fair enquiry and, if any such enquiry had already been conducted, the result thereof should have been conveyed to him, thereby, he would have been better-placed to pursue the remedies instantly, and failure to undertake such basic/minimum required legal exercise glaringly exhibits the sheer negligence and deficiency in service on their part, as such, they have no locus standi to raise question on jurisdiction by harping on the technicalities in referring to the provisions between the Consumer Protection Act and the RCT Act, only with a sole endeavour to defeat the just claim of the complainant as a consumer, who admittedly suffered 100% disability in the accident that occurred only due to the act of negligence on the part of the Railways/TTE who share the Master-Servant relationship.  In support of his submission that, in the instant case, there is no bar for the consumer forum to entertain and decide the case of the complainant, learned counsel pressed into service a decision of the Apex Court in Kishore Lal vs. Chairman, ESI Corporation (AIR 2007 SC 1819), wherein it has been ruled thus:-

     “20. This Court has considered the principles of the law on negligence in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well-stated in the Law of Torts, Ratanlal & Dhirajlal (24th Ed. 2002, edited by Justice G.P. Singh). It is stated (at pp. 441-442) :

"Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property . the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."

Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely, (a) existence of duty to take care; (b) failure to attain that standard of care; and

(c) damage suffered on account of breach of duty, are present for the defendant to be held liable for negligence. Therefore, the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees' Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the doctors or the ESI hospital/dispensary is clearly beyond the jurisdictional power of the Employees' Insurance Court. An Employees' Insurance Court has jurisdiction to decide certain claims which fall under sub-section (2) of Section 75 of the ESI Act. A bare reading of Section 75(2) also does not indicate, in any manner, that the claim for damages for negligence would fall within the purview of the decisions being made by the Employees' Insurance Court. Further, it can be seen that any claim arising out of and within the purview of the Employees' Insurance Court is expressly barred by virtue of sub- section (3) to be adjudicated upon by a civil court, but there is no such express bar for the consumer forum to exercise the jurisdiction even if the subject matter of the claim or dispute falls within clauses (a) to (g) of sub-section (1) of Section 75 or where the jurisdiction to adjudicate upon the claim is vested with the Employees' Insurance Court under clauses (a) to (f) of sub- section (2) of Section 75 if it is a consumer's dispute falling under the CP Act.

21. Having considered all these aspects, we are of the view that the appellant is a consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI hospital/dispensary by the respondent Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and, therefore, the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the consumer forum is not ousted by virtue of sub-section (1) or (2) or (3) of Section 75 of the Employees' State Insurance Act, 1948.

By pointing out that the CP Act is a beneficial legislation, specially enacted for the protection of consumers and provides an additional remedy in the form of Section-3 thereof, learned counsel placed reliance upon a decision rendered by the National Commission in  Western Railway vs. Vinod Sharma I(2017)CPJ279(NC), wherein the NCDRC held as under,

     “ 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 v. M. Lalitha (dead) through LRs, MANU/SC/1025/2003 : I (2004) CLT 20 (SC) and in Trans Mediterranean Airways v. Universal Exports, MANU/SC/1126/2011 : 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”

According to the learned counsel, when there is no bar for the consumer forum to delve into and decide the aspect of deficiency in service which is ex facie glaring on the part of the OP/Railways, the endeavour of the OPs in seeking to direct the complainant to approach the RCT at this remote stage, after a period of more than two long decades that too while undergoing a life-time disability solely due to the acts of the servant of the OP, clearly exhibits their hard-hearted approach to further victimize the completely-crippled complainant.  By referring to a judgment of the Apex Court in  P.A. Narayanan v. Union of India [(1998) 3. SCC 67] and by taking us through the following passages therefrom,

        “ There is a common law duty of taking reasonable care which must be attached to all carriers including the railways. In this case, there has been breach of that duty and the negligence on the part of the railway staff is writ large. Had the train been stopped and first-aid provided when the alarm chain was pulled, the possibility that the deceased may not have met her death, even after the assault in the course of robbery, is a possibility which we cannot totally rule out. The manner in which the guard and the motorman acted exposes a total casual approach on their part, Because of the failure of those railway officials, a precious life has been lost.

        Our attention has been drawn by Dr. Singhvi, the learned amicus, curiae to the Railways Act. 1989 which came into force on 1st July, 1990 to urge that the new Act which extensively modifies, amends and consolidates the old 1890 Act, unequivocally incorporates the concept of [liability of the railway administration for death and/or injury to passengers due to any untoward incident while travelling in the train. Section 1239(c) of the Railways Act, 1989 defines and "untoward incident" and inter alia provides the making of a violent attack or the commission of robbery or dacoity as an "untoward incident". According to the learned amicus curiae, the case of the appellant was required to be considered on the basis of res ipsa locquitor (thing speaks for itself) rather than on narrow technicalities based on the provisions of the Railways Act, 1890.

        Mr. Goswami, learned counsel appearing for the railway administration does not dispute that under the new Act, there is statutory liability on the railways but submits that the 1989 Act does not have any retrospective operation. We do not wish to go into that question in these case and leave that issue open. We are resting our case on the breach of common law duty of reasonable care, which lies upon all carriers including the railways. The standard of care is high and strict. It is not a case where the omission on the part of the railway officials can be said to be wholly unforeseen or beyond their control. Here there has been a complete dereliction of duty which resulted in a precious life been taken away, rendering the guarantee under Article 21 of the Constitution illusory. Had the deceased not pulled the alarm chain with a view to stop the train, the position might have been different. Liability in this case is fault based. Such a liability is not inconsistent with the scheme of the Railways Act of 1890 either (Refer Section 80 with advantage). The proof of a fault in this case is strong and Mr. Goswami has not rightly challenged it either. To relegate the appellant to approach the Railway Claims Tribunal or the Civil Court, as suggested by Mr. Goswami does not appear to us to be proper. More than 17 years have already gone by since the occurrence and, therefore, it appears appropriate to us to give a quietus to this litigation now.”,

learned counsel submits that, in the present case, the Railways never bothered even to reply to the complainant on the written representation/complaint made by him, thereby, they failed to exercise the minimum reasonable care and  exhibited sheer negligence; that being so, after a long passage of time, any order in line with their plea for directing the complainant to approach the RCT would be a travesty of justice.  Thus, the impugned order passed by the District Forum being well-reasoned and well-founded, the same does not call for any interference by this Commission, he pleaded.

 

             7.  In the light of the rival submissions advanced on either side, the only point that needs to be answered is as follows:-

              “ Having regard to the bar under Section 15 of the RCT Act, 1987 that ousts the jurisdiction of all courts including the consumer fora and grants exclusive jurisdiction only to the RCT to decide the claims arising from railway accidents/untoward incident and, in between the two diametrically opposite segments of ‘untoward incident’ and ‘negligence-cum-deficiency in service’ over the act of the Railways in not conducting any enquiry/not replying to the complainant’s written complaint/representation under Ex.A5, dated 29.01.1998, as to whether the facts and circumstances of the case on hand ex facie point towards any negligence/deficiency in service on the part of the Railways so as to test the same on the anvil of the provisions under the Consumer Protection Act for granting or not the relief sought for, thereby,  the jurisdiction point of the other forum, which cannot go into the aspect of deficiency in service and its consequences like mental agony, physical discomfort, harassment, etc., is rendered irrelevant?

 

             8. Before proceeding further, at the outset, it is but proper to point out that, for deciding the point as to whether the jurisdiction of the Consumer Forum prevails or that of the RCT, the facts of the case need to be rightly assessed, for, any wrong understanding of facts will overlap/roll out the jurisdiction from one forum to another. To illustrate, a railway consumer having purchased a journey ticket, “on an incident of negligence by the Railways or deficiency in services”, can file a case invoking the jurisdiction of the consumer forum, but, on other hand, in respect of accidents due to collusion of trains or untoward incidents as defined under Section 123 (c) of the Railways Act, 1989, that directly fall under the jurisdiction of Railway Claims Tribunal, a consumer case cannot be maintained, for the obvious reason that ‘the issue in such instances is not in respect of the services rendered by the railways but the accidents involved’. The distinguishing factor to decide between the two jurisdictions is  ‘untoward incident’ that  can be tried only before the RCT and  ‘negligence / deficiency in service’ which is one of the essential requirements that brings a case within the exclusive domain of the consumer forum for any additional remedy, particularly when damages or compensation for “negligence-cum- deficiency in service” cannot be sought for before the other forum. In sum and substance, regarding accidents and untoward incidents, negligence and deficiency cannot be attributed to railway services and it follows, any claim arising in respect of the untoward incident  can only be dealt with by the RCT and similarly, regarding any negligence or deficiency in services on the part of the OP that stand outside the purview of the Railways Act/RCT Act,  the jurisdiction conferred upon the consumer fora by the Statute can never be disputed or questioned by citing any technicality, for, any such attempt would ultimately defeat the very purpose of the beneficial legislation/CP Act that is inbuilt with the mechanism of providing additional remedy.

 

             9. In that perspective, in order to avoid overlapping of jurisdiction, we have closely gone through the materials available on record to study the facts and circumstances.  While it is the assertive stand of the complainant that he boarded the S-10 Coach which was at the fag end of the platform & adjacent to the unreserved compartment, that the train was not in motion then and that, only after entering the S-10 coach, he was ultimately pushed off the moving train by the TTE resulting in the horrible accident & loss of limbs that crippled him with 100% lifelong disability; the consistent version of the Railways is that, only due to the own fault of the complainant in jumping onto the foot-board of S-10 coach, he lost the grip and met with the tragedy, as such, it is a clear ‘untoward incident’ as defined in Section 123 (c) (2) of the Railways Act, 1989; thus, the authority to try the said instance is only the RCT in view of the specific jurisdiction vested in it under Section-13 (1A) of the RCT Act and further, in view of the bar under Section 15 of the said Act, no other authority including the consumer forum has any jurisdiction to delve into the same.  In the light of the clear statutory provisions, especially, the specific embargo under Section-15 of the RCT Act to deal with any untoward incident connected to railways that too in a factual scenario where the occurrence is projected in two different types, the consumer forum cannot go into the same, since the provisions of the CP Act “shall not be in derogation of the provisions of any other law” including the Railways Act, 1989 or the RCT Act, 1987.  It must be underlined here that the legislature has ousted the jurisdiction of all courts and granted exclusive jurisdiction only to the RCT for deciding the claims over untoward incidents and hence, we again make it clear that the Consumer Protection Act cannot override the bar under the Railway Claims Tribunal Act, as such, complaints in respect of the above class of cases cannot be maintained before the consumer forum.  Accordingly, we reiterate and hold that the consumer forum has no authority to go into the question and claim over the untoward incident in view of the embargo in the special law, as adverted to above and also, owing to the factual aspect projected differently in their respective versions by both sides.

 

             10. Having held so, now the other side of the coin/issue that needs to examined is as to whether the element of negligence or deficiency in service on the part of the OP/Railways is present in this instance warranting the consumer forum to exercise its jurisdiction, for which, there is no statutory restraint or embargo since such issue would clearly fall under the scope of the CP Act, particularly when the other forum/RCT cannot go into the issue of service deficiencies/negligence.

 

             11. It is the stand of the Railways, as stated in para No.6 of their written version, that their part of service with a person like the complainant, who purchased a train journey ticket for Rs.200/-, is over once they ensured safe and timely arrival of the train at the Destination.  The said version came to be filed in the year 2003 more or less half-a-decade after the incident.  But, even within 10 days after the tragic accident, the complainant, who sustained permanent disability due to loss of limbs as evident from the Disability Certificate under Ex.A11, had sent a written representation-cum-complaint, dated 29.01.1998, under Ex.A5 to the Southern Railways/DGP and the same was acknowledged by them under Ex.A6 dated 12.02.1998.  In the said representation, the complainant clearly stated that he was yelling at the TTE to open the door, but, he arrogantly declined and, as a result, the tragedy had occurred.  By pointing out the extraordinary difficult situation that his movements were completely restricted and that he was still undergoing treatment, he then requested the Railway Authorities for taking appropriate action into the matter.  Being a giant service-provider and a responsible government agency, the Railways could have exercised reasonable care and diligence by replying to the representation/complaint either way that their service was restricted only to the point of ensuring safe arrival-cum-destination of the train or that it was a definite case of ‘untoward incident’, thereby, enabled the completely crippled complainant either to approach the consumer forum on the ground that there was still deficiency in services/negligence or else to prefer a specific claim before the RCT for the consequences of the untoward incident.  By keeping quiet for a long time, they chose to file a very vague and shallow counter stating that their part of services were over once they ensured safe arrival of the train at the destination.   Having admitted the factum of major injuries suffered by the complainant by stating in the version at para No.17 thereof to the effect ‘But for the timely help of the Railway station master and other staff by admitting the complainant with Govt. Hospital/Sivakasi for First Aid, the major injury would have endangered to the loss of life’, they contrarily exhibited an act of sheer negligence in  forgetting the fact that they were dealing with the representation of a victim/railway consumer, who lost his limbs and crying for a reply from their end. One another striking feature is that the OP conveniently withheld the details of enquiry conducted by them after the incident and the said factum is evident from paragraph No.9 of the version, wherein, it is stated thus:

     “9….  Further, the averments made against the Travelling Ticket Examiner was not established at the enquiry in connection with the complaint made by the complainant after the incident. “

A reading of the above statement would clearly indicate that, in fact, an enquiry was conducted by the OP on the complaint made by the complainant, however, the details of the same were withheld and never produced before the District Forum.   Similarly, in the same version, at paragraph No.15, it is stated thus,

     “No punishment was awarded to Shri Haridasan, Travelling Ticket Examiner for want of proper witness and evidence to prove the incident that major injury was caused to the complainant due to the negligence of the complainant and the burden of the proof still lies on the complainant.”

It is very strange to see the above stand of the OP that they could not award any punishment to the TTE for want of proper witness when the very complainant himself was not summoned by them for the enquiry so as to allow him to adduce evidence and to cross-examine any witness on the side of the TTE.  All governing legal principles of conducting a fair enquiry, in particular, the principles of natural justice were given a clear go-bye to somehow prevent the complainant, who is completely disabled without any movement due to loss of limbs, from maintaining a claim for the negligence-cum-deficiency in service.  In other words, had the Railways acted at least with minimum reasonable care and in a responsible and sensible manner by conducting a fair and wholesome enquiry upon the complaint in a manner known to law and duly conveyed the outcome thereof, there would have been no room at all to attribute any negligence or deficiency in service on their part.  By not doing so, on the face of the records, their act exhibits both negligence and deficiency in service.  By merely stating that the claim is covered by ‘untoward incident’, they cannot prevent the complainant from pursuing his remedies under the consumer law since their act in not responding to his complaint/representation clearly amounts to deficiency in service coupled with the fact that they indulged in suppression of materials by withholding the details of the enquiry conducted against the TTE.  Having left the complainant in lurch on the one hand by not conveying over the complaint/representation, dated 23.01.1998, their stand that the claim can be tried only before the RCT under the category ‘untoward incident’ and on the other hand, by not informing the result of the enquiry and by conveniently withholding the records connected thereto, the present endeavor of the OP to find fault with the process before consumer forum, which has ample jurisdiction to try cases of negligence-cum-deficiency on the part of the Carrier/Railway services, is highly reprehensible and wholly unwarranted.

 

             12. In the light of the foregoing discussion that revolved around the  distinction between matters falling under the category of accidents/untoward incident connected to railways and of claims arising from service deficiencies, we cull out that, regarding the former category, in view of Section 13 (1A) of the RCT Act read with the clause of bar under Section 15 thereof, by ousting jurisdiction of all courts, exclusive jurisdiction is conferred only upon the RCT to decide the claims over accidents/untoward incidents and other instances as specified in Section 123(c) of the Railway Act, thereby, the Consumer Forum cannot entertain any such case, but, at the same time, regarding the latter category of matters arising from service deficiencies and negligence, in view of the wide coverage given for the term ‘service’ in Section 2(1)(o) of the Act that includes transport sector/Railways also, undoubtedly, the consumer forum can very well have jurisdiction to try such cases. In that perspective, coming to the impugned order passed by the District Forum, since the said Forum recorded some findings  by also focussing upon the sequence of events revolving around the incident, in view of our above conclusion that adjudication upon the issue of untoward incident  falls only under the jurisdiction of the RTC, we hold that the said part of the findings cannot be sustained, however, as already adverted to, in the present case, since the Railways have committed negligence-cum-deficiency in service, by all along keeping the written complaint/representation pending/un-replied and they have also indulged in suppression of material records connected to the enquiry conducted against the TTE and its outcome,  to do substantial justice, it is just and proper to assess the compensation aspect by weighing it in between the 100% life-long disability sustained by the complainant  and  the gross negligence-cum-service deficiency/suppression of material records on the part of the Railways as well as the long lapse of time that would naturally prevent the  complainant from pursuing any other effective remedy. On such assessment, we are of the considered view that the total compensation of Rs.10,60,000/- as arrived at  by the District Forum seems to be on the fair side and it also meets the ends of justice, hence, the said direction issued by the District Forum shall have to be confirmed, however, based on the reasons rendered hereinabove.    

 

             13. In the result, the Appeal fails and it is dismissed, by confirming the impugned direction for compensation, as issued by the DCDRF, Chennai-North, in its order, dated 07.04.2014, passed in C.C. No.141 of 2013,  however, on the basis of the reasons assigned by us. No costs.

 

R.VENKATESAPERUMAL                                                                                                                            R.SUBBIAH, J.

MEMBER                                                                                                                                                          PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/April/2022.