(Delivered on 03/07/2017)

Per Mr. S.B. Sawarkar, Hon’ble Member

1.      The present appeal is filed  against the order of the District Forum, Nagpur passed in complaint No. 763/2013 dated 10/04/2015 partly  granting the complaint  and directing  the opposite party (in short O.P.) Nos. 1 to 4 to provide the compensation of Rs. 50,000/- with interest  at the rate of 9% p.a. from  18/11/2013 till final payment  and further  to provide Rs. 10,000/- for  physical and mental harassment with  cost of Rs. 5,000/- to complainant & order  to be complied  in the span of one month from the date of the order. The O.P. No. 5 is deleted.  

2.      The complainant filed a complaint  that  while travelling  from  Mumbai to Nagpur  in the night of 12/05/2013 she was sleeping  on the lower bearth  in A.C. Compartment of the train. When  the  person  sleeping  on the  middle bearth No. 5, got down  and went  away,  the middle bearth suddenly  getting released  from hinges  fell down  and  injured her on the right side of head.  However,  her daughter escaped injury .  She  received severe  pain full  injuries  to her head and  face.  Her husband made a complaint to  the T.C. in charge  who  advised to get admitted  her at the next station of Bhuswal. However, she had to  suffer pain till Bhuswal as no medical help was made available to her.

          At Bhuswal the doctor came and gave her painkiller  tablet but  took  the fee of Rs. 40/- and did not  give her receipt.  No medical  assistance  was given to her  through out the travel  period  to Nagpur.  No one  gave her help  from the side of  the O.P.at Nagpur.  When her husband went to  the office of the O.P.,  Railway Station Authorities,  the officer  was not present. The T.C.  of the compartment got down  at Bhuswal.  She therefore, found that  she did not  get any help  from the  administration of the O.P. No. 1 to 5, though  she received injuries while  travelling with their train. She thereafter made a complaint but as  she did not get any help, she was required to go to  the  private doctor and take  the private treatment by spending her own money.

          Therefore, claiming  that she being a legal traveller is a consumer and claiming deficiency in service on the part of  O.P., she filed complaint  with a prayer  to provide her Rs. 1,50,000/- for  accident  treatment  cost, Rs. 3,50,000/- for physical and mental harassment, Rs. 10,000/- for  cost  of  litigation  and  Rs. 5,000/- for  pursuing   the case totaling to Rs. 5,15,000/-.

3.      On notice,  the O.P. Nos. 1 to 5 appeared  on behalf of the Railway Administration and countered the complaint through common written version.  The O.Ps.  accepted  complainant to  be a legal traveller and her accident but submitted that  when the  middle bearth traveller  got down from the bearth, the  bearth  got released  from the hook  and  fell  down   & caused hurt to  the complainant.  However,  the O.Ps.  claimed that  it was a  plain accident as  the  in charge  T.C.  got the  bearth checked and  found it  to be  absolutely safe. The O.Ps.  claimed  to have provided  the proper  first Aid at Bhuswal and  claimed that  the fee was taken  as per the  rules of the administration.  The O.Ps. further claimed that the complainant  was explained  the  action taken   which was in right  earnest  and  it was a  plane accident. Hence,  no  responsibility of  deficiency  lies upon  the O.Ps.  The O.Ps. further claimed that the accident took place in the  travel  between  Manmad to Chalisgaon which is  beyond the jurisdiction of  the Forum. Also the claim lies with  Railway Accident Tribunal and not  before the Consumer Forum. Hence, requested   to dismiss the complaint.

4.      The learned Forum heard both the parties, perused the evidence and the  treatment expenditure documents. The Forum held that as the train was traveling  from Mumbai  terminating  at Nagpur,  the  cause of action  stands in its   jurisdiction.

          The Forum further  held that  the complainant  suffered injury due to the fall of the bearth which had no fault. However,  the O.Ps.  have not provided her the proper  and  prompt  medical help. Also  she was not  given medical help at the  destination of Nagpur and no arrangement  were made for her  relief  from pain and inconvenience . Hence,  it is a  deficiency  in service. Therefore,  in consideration  of  the medical treatment and the expenditure passed the order supra.

5.      Aggrieved against the order the O.P. filed  an appeal through  advocate S.N. Abhyankar  & hence, are called as appellants. Advocate   Smt. S.M. Tatke  appeared on behalf of  original complainant  who is  referred as respondent.  At the time of final hearing  advocate Abhyankar was not present. However, he filed  written notes of argument. 

6.        The advocate for the appellant was absent. However,  the advocate of  appellant raised the ground in the written notes of argument that the learned Forum  had  wrongly entertained  the  injury complaint of the  respondent  when  such complaint is  to be dealt by the Railway Claims Tribunal. The appellant   raised the ground that  there was no defect  in the  middle bearth where  the passengers had slept  for  three to four hours.  It is only when  he got down  to go for lavatory  the  hook got unfastened  and  the bearth fell  on the  respondent  which  in simpliciter  form cannot become a cause of deficiency. On the other hand  the appellant  provided  the help of a doctor indicating  bonafide  response of service. The appellant  further submitted  that all the bogies are properly checked prior to the start of train and the concerned  bearth  was technically checked and was found  with no defect in the clamp.  Hence,  the accident  cannot  constitute deficiency in service so as to saddle such a heavy penalty  upon the  appellant in the absence of  any jurisdiction of the Consumer  Fora.  The appellant therefore, submitted that  the order being out of  jurisdiction deserves to be set aside.

7.      The advocate for the respondent was present and relied on the following judgments as below.

a.      National Commission Judgment passed in Western Railway Vs. Vinod Sharma published at MANU/CF/0019/2017. Wherein  it is held that the Consumer Protection Act is a special legislature enacted to provide better protection to the consumers  in diverse  field  and the provisions  under section 3 of the Act are in addition and  not in derogation to  any other law. Hence, the Railway Act, 1989 and Railway Claims Tribunal Act, 1987 cannot bar the jurisdiction of the Fora.

b.      Madhya Pradesh Consumer Commission judgment passed in General Manager, Central Railway Vs. S.S. Pillai published at MANU/SS /0004 / 2001. Wherein  the question  was dealt  whether the provisions  of the Consumer Protection Act, 1986 (for short the Act) were not maintainable in view of  section 15 of the Railways Claim Tribunal Act ,1987 (For short RCT Act) which  bars the jurisdiction  of  Court or Authority. It was held  by the   Hon’ble Commission that  the  Railway Claim Tribunal had jurisdiction to entertain the complaints relating to the  accident and  untoward  incident under section 124 of the Railway Act. The definition of the accident  in section 124 specifies that  the accident should be of the nature envisaged in section 124 of the Railway Act which should be  to a train  or the  derailment  or  part of the train out of  reason of collusion  of  two trains  or other accident  in the train. Then only  the liabilities  arise  of  Railway Administration. In that case  the passenger injured would be entitled to maintain an action and recover  for damages in respect thereof.  The Hon’ble Commission referred to the decision  of the Supreme Court in Union of India Vs. Sunilkumar published at MANU/SC/0020/1984-AIR1984 SC 1737. The  Hon’ble Commission held that  when the  injuries  suffered  are not due to  untoward incident  in view of the definition of  accident and the  clear language  of section 124A  and 125 of the Railway Act, the application cannot be maintained by the appellant  before the  Railway Claims  Tribunal as the jurisdiction  of the  Railway Claims Tribunal to  deal with  an application  under section 16 are given in section 13 of the RCT Act. Hence,  bar of jurisdiction contained  in  section 15 of the RCT Act would not apply in a complaint  filed by a  complainant  for the deficiency  in service.  The Hon’ble Commission discussed a case of   death  of a passenger by fall while passing  from one  compartment  to another  through  passage  because of  absence of grills and other safety  devices decided  by the National Commission in case of Union of India Vs. Nathmal Hansariya and another referred as I (1997) CPJ 20 (NC). Wherein  the National Commission  referred to section 13 of the RCT Act and section 124 of the Railway Act and held that  such an incident cannot be described as a railway accident so as to exclude  the jurisdiction of the  consumer  Fora by  Railway Claims Tribunal Act.

          The advocate of the respondent relying on the above judgment  submitted that  the accident alleged by  the respondent  was not the accident  which would fall  in the definition  of section 124 of the RCT Act so as exclude the jurisdiction the of the District Fora under section 15 of the RCT Act. Moreover,  the complaint  was filed  for the  deficient  treatment given to the respondent  when  she suffered the  injury and was required  to spend a painful long travel to Nagpur.  Hence,  the complaint  squarely fits  in the  jurisdiction of the  Consumer Commission to be tried for  appropriate order by it.

8.      We considered the contentions and evidence on record, we find that the accident is not which can be categorized  in the definition   of section 124 of the Railway Act. Hence,  the plea of the appellant  that the jurisdiction  of the  District Forum is barred  in view of the section 13 (1)(a)(i) and section 15 of the RCT Act, 1987 cannot be accepted  as  it is an injury  by the fall of the bearth. The O.P. failed to prove that  there was  no defect in the   clamp of the bearth. Even though  it it is  accepted  that there was no defect  in the bearth it certainly needs to be considered that in the event of such a injury, the appellant’s officers, the coach in-charge  and the doctor should  have responded in a more  humane manner. Also  at Nagpur  it was necessary to provide the medical help to the  respondent  and  intermittent  help  at  major stops  of  Railway from Challisgaon to Nagpur. So that the respondent  could have  been saved from the pain.  Thus we find the complaint is regarding  the  deficiency  in service in  the form of not keeping the bearth  intact  without  any defect and also not giving proper  medical  assistance  to the respondent  after  she sustained  injuries due to falling of middle bearth on  her  body.

9.      We visualize  the agony of the respondent  and  therefore find that  the order passed  by the learned Forum aptly  compensate the pain, agony , shock of the accident and  a part of  medical treatment  expenditure which the respondent  unexpectedly  was required to incur. We therefore find that  the order being correct it deserves to be confirmed. Hence, the order below.

ORDER

i.        The appeal  stands dismissed.

ii.       The impugned  order  is confirmed.

iii.      Parties to  bear their own cost.

iv.      Copy of the order be  given to both the  parties, free of cost.