APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :   2^nd NOVEMBER 2017

O R D E R

PER DR. B.C. GUPTA, MEMBER

          These are two revision petitions filed against the impugned order dated 17.03.2009, passed by the Maharashtra State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in first appeal, FA No. 2209/2004, “Smt. Vinaya Vilas Sawant versus Union of India,” vide which, while allowing the said appeal, the order passed by the District Forum, Mumbai, dismissing consumer complaint No. DF/MSG/1210/99 was set aside. 

2.       The facts of the case are that the complainant Smt. Vinaya Vilas Sawant who is employed as a telephone operator in the Mahanagar Telephone Nigam Limited (MTNL), Mumbai, sustained serious injuries due to sudden collapse of a railway over-bridge at Jogeshwari railway station in Mumbai.  As per the complainant, she was a second-class railway pass-holder, entitled to travel between Borivali and Churchgate and used to travel to her office every day from Jogeshwari to Churchgate.  However, on 28.09.1992, at about 8:30_PM, when she was returning home alongwith her husband from Ghatkopar in Mumbai (Ghatkopar is not on route from Borivali to Churchgate) they used the railway foot-bridge to come to Jogeshwari (East).  The said bridge suddenly collapsed and both she and her husband came down on the railway track 22 – 25 ft. deep and suffered serious injuries.  Both of them lost their consciousness and were removed to Cooper Hospital in Juhu and were admitted there as indoor patients.  As a consequence of the collapse of the railway bridge and steep fall on the ground alongwith falling debris, she sustained the following injuries, as per the injury certificate issued by the Hospital:-

“1.        Oil with psraplesia

2.         MA over the (L) elbow post aspect

3.         MA over the (L) ankle

4.         (L) eye CLW (L) Cel

5.         Fracture in back bone (spine)”

3.       The case of the complainant is that as a result of the said accident, she suffered permanent disability of high order and hence, she had been robbed of the basic comforts of life, peace of mind and happiness in living, including the conjugal rights.  She also lost her jewellery in the accident.  Moreover, she had to remain on medical leave for more than 2 years.  The OP Railways was, therefore, liable to pay damages and compensation to her.  The complainant also stated that a departmental inquiry was got conducted by the OP to determine the cause of the accident and the persons responsible for the same.  It was revealed from the inquiry that the over-bridge had collapsed due to corrosion of weld, connecting the cross guarders to the boom of the foot over-bridge.  The staff responsible for the same was also named.  The complainant further stated that a pauper petition was filed in the Bombay High Court on 06.09.1993, claiming a sum of ₹7,30,000/- by way of damages and compensation, but was subsequently withdrawn by her on 29.10.99.  The complainant has given calculations in the complaint for a claim of ₹5,88,700/-, but demanded a compensation of ₹4,95,000/- from the OP alongwith interest @18% p.a. 

4.       The complaint was resisted before the District Forum by the OP Union of India by filing their written version in which they stated that on 28.09.92, there was sudden, strong wind accompanied by heavy rainfall in the evening.  A large number of passengers/persons took shelter on the aforesaid railway bridge, resulting in heavy overloading on the same.  This resulted in the collapse of slab No. 3 of the said over-bridge, causing injuries to some persons.  The OP stated that the consumer complaint was barred by limitation under section 24A of the Act, because it was filed in November 1999, although the alleged accident had taken place on 28.09.1992.  The OP denied that the complainant was the holder of a second class railway pass.  The OP also stated that the complainant was entitled to get medical expenses from the Department, where she was serving.  The OP also stated that the complainant was not a consumer, as she had not produced any travel document, such as railway ticket etc. to prove that she was a bonafide commuter. 

5.       Vide order dated 19.04.2004, passed by the District Forum by majority judgment, the complaint was ordered to be dismissed.  Being aggrieved against the order of the District Forum, the complainant filed appeal before the State Commission which was dismissed saying that in view of section 124A of the Railways Act 1989 and Section 13(1)A and 15 of the Railways Claims Tribunal Act, 1987, the jurisdiction of the consumer fora to hear such matters was barred.  Being aggrieved against this order, the complainant filed a revision petition, RP No. 864 of 2006, before this Commission, which was decided vide order dated 21.07.2008.  The revision petition was allowed, the orders of the State Commission and the majority order passed by the District Forum both, were set aside and the matter was remitted to the State Commission by directing as follows:-

          “In our view, for deciding quantum of adequate compensation payable to the complainant and for deciding the contention that the complainant was not bonafide user of the railway foot-over-bridge, matter requires to be remitted to the State Commission.

          The State Commission would record the evidence by way of affidavits and decide the matter as early as possible and pass appropriate order, if called for, for adequate compensation.”

6.       The matter was accordingly heard by the State Commission and decided vide impugned order dated 17.03.2009 by which, the consumer complaint was allowed and the OP were directed to pay a lump sum compensation of ₹10 lakh to the appellant alongwith interest @9% p.a. from the date of the order till realisation and a litigation cost of ₹5,000/-.  It is against this order that the present two revision petitions have been filed.

7.       In revision petition, RP No. 3226/2009, filed by the complainant, a prayer has been made for enhancement of compensation from ₹10 lakh to ₹18,22,350/- whereas in the other revision petition, RP No. 1724/2009, filed by the Union of India, prayer has been made for dismissing the consumer complaint in question.

8.       During hearing before us, the learned counsel for the Union of India, the Railways stated that the complainant did not fall under the definition of “consumer” under the Consumer Protection Act, 1986 as no document had been produced on record to show that the complainant travelled on the fateful day on a railway ticket/season pass.  In the report made to the Police as well, mention was made about the loss of valuables, but not about the loss of railway ticket/season pass etc.  Even the husband of the deceased had not been produced any such ticket/season pass.  The complainant was not entitled to be granted any compensation, therefore.  The learned counsel further stated that the complainant had earlier stated that they were travelling as a family of 7 – 8 persons, but they had now taken the stand that only the husband and wife were travelling.  The learned counsel stated that the issue could not be decided in summary proceedings under the Consumer Protection Act, 1986.  Referring to the quantum of compensation allowed by the State Commission, the learned counsel stated that the said Commission could not have awarded amount in excess of that demanded by the complainant in her consumer complaint.  Moreover, the Railways could not be directed to pay compensation in excess of that allowed under various provisions of the Railways Act.  The learned counsel further submitted that the complainant had not given any details about the compensation received by them from any other source.

9.       In his arguments, the learned counsel for the complainant has drawn attention to the order dated 21.07.2008 passed by this Commission, in which it was held that the matter could be agitated under the Consumer Protection Act, 1986.  The National Commission remitted the case to the State Commission for deciding the quantum of compensation and also for deciding, whether she was a bonafide user of the railway overbridge and hence, a consumer.  In pursuance of that order, the State Commission concluded vide the impugned order that the complainant was a ‘consumer’ under the Act, since she was a bonafide railway passenger and at the time of the accident, she was using the railway overbridge attached to the platform of the Jogeshwari Railway Station, which was meant only for railway passengers.  The failure to produce the railway ticket/season pass etc. did not imply that she was not a consumer.  The learned counsel further argued that there was no evidence on record that the complainant and her husband had travelled by bus on the fateful day.  Referring to the compensation allowed by the State Commission, the learned counsel stated that the complainant had produced all necessary details before the State Commission and the said Commission were very much within their rights to allow compensation in excess of that demanded in the consumer complaint.  The learned counsel pleaded that as per the details given by the complainant, a compensation of ₹18.22 lakh alongwith interest should be allowed to them. 

10.     An important point for consideration in the matter is that in RP No. 1724/2009 filed by the OP Railways, it has been stated that the husband of the complainant had given a statement in the inquiry conducted by the Railway Administration that they were returning home from Ghatkopar to Jogeshwari ‘by bus’ and not ‘by train’.  The said statement says that they were 7 of a family coming from Ghatkopar to Jogeshwari (West) by bus and they were to cross-over to Jogeshwari(East) by the said railway overbridge.  Both the parties were asked to submit documents/proof on the issue as to whether the complainant and her family travelled by train or by bus from Ghatkopar to Jogeshwari on the fateful day.  On behalf of the OP Railways, a copy of letter dated 05.08.2016 sent by D.E.N. (Estate North) addressed to 4 different officers of the Railway Department, requesting them to provide original documents of the Railway Inquiry Report was produced on record.  However, the OP Railways were not able to produce any inquiry report or any material in support of their contention that the complainant and her family travelled by bus on that day from Ghatkopar to Jogeshwari(West).  On the other hand, on behalf of the complainant, her husband Vilas Shanta Ram Sawant appeared before this Commission and filed an affidavit alongwith a note of written arguments.  It has been stated in the said affidavit that the complainant and her husband met with an accident on 28.09.1992 at around 8:30PM when the slab of the Railway foot-overbridge at Jogeshwari Railway Station suddenly collapsed when they were on their way back home in Jogeshwari from Ghatkopar.  The husband stated that both of them had Western Railway quarterly season ticket for travel to Churchgate station from their place of living.  On the day of the incident, i.e., on 28.09.1992, they travelled from Jogeshwari to Ghatkopar and back via Dadar Railway station by train.  For that purpose, they purchased Railway ‘extension ticket’, at Jogeshwari Railway Station for travel from Dadar to Ghatkopar and back, as the said route was on Central Railway local train, whereas the route, Jogeshwari to Dadar and back, was at the Western Railway, for which they had the season ticket already.  The husband stated that he never gave any statement before any inquiry officer of the Railways, saying that they had travelled by bus and not by train on that day.  Further, in a statement dated 01.10.92 made to the Railway Police as well, a copy of which had been attached with the affidavit, he stated that they travelled by train on that day.  In the written arguments also, the complainant reiterated the facts as stated above and demanded that a claim of ₹18,22,350/- should be paid and hence, the compensation allowed by the State Commission should be enhanced. 

11.     In their rejoinder to the affidavit filed by the husband of the complainant, the Divisional Engineer (Estate North) Mumbai Central, Western Railway, stated that the averments made in the affidavit of the husband of the complainant were false.  In the statement before the Police, they had stated that the husband/wife and other family members were travelling together whereas in the affidavit, they stated that only husband and wife were travelling together.

12.     We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

13.     From an examination of the complaint and the reply filed by the OP Railways, it is undisputed that a portion of the railway overbridge at Jogeshwari Railway station in Mumbai did collapse on 28.09.92 and many people including the complainant received injuries.  The Railways have stated that on 28.09.1992 evening, there were strong winds accompanied by heavy rainfall, because of which many passengers/persons took shelter on the aforesaid bridge, resulting in heavy overloading, which led to the collapse of a portion of the bridge. It is also stated by the OP Railways that the matter was enquired into by a Committee constituted to find out the cause of the accident, and on the basis of the report of the Inquiry Committee, departmental action had also been taken against some of the employees of the Railways Department.  In the present case, however, it is to be decided whether the complainant was a bonafide commuter/passenger and hence, whether she came within the definition of ‘Consumer’ under section 2(1)(d) of the Consumer Protection Act, 1986, AND, how much compensation was required to be paid to her, if she was held to be a consumer. 

14.     A perusal of the order passed by this Commission dated 21.07.2008 in RP No. 864/2006 shows that this Commission arrived at the conclusion that the jurisdiction of the Consumer Fora was not barred, rather the relevant sections of the Railways Act, 1989 and those of the Railways Claims Tribunal Act, 1987 were not applicable in the present case.  The National Commission also held that the findings of the Inquiry Report established deficiency in service on the part of the Railway Administration in not maintaining the bridge properly.  The National Commission, therefore, directed that the matter of granting adequate compensation and whether the complainant was bonafide user of the bridge was required to be gone into by the State Commission.

15.     The first issue for consideration before us is whether the complainant is a ‘consumer’ under section 2(1)(d) of the Consumer Protection Act, 1986 or not.  In her complaint, the complainant stated that she used to commute daily from Jogeshwari to Churchgate for attending to her official duties at the MTNL, Mumbai and that, she was a second-class railway pass-holder which entitled her to travel between Borivali and Churchgate.  She also stated that the said season ticket was lying within her purse that was lost during the said incident of bridge collapse.  In her rejoinder to the written statement filed by the OP, the complainant admitted that she was not able to produce any season ticket as proof of her being a bonafide railway passenger.  The learned counsel for the OP Railways stated that there was no evidence that she was a valid season ticket holder and she never mentioned this aspect during her statement recorded before the Police regarding the loss of her ornaments etc. 

16.     As already stated, the OP Railways were afforded numerous opportunities to produce on record a copy of the report of the internal inquiry got conducted by them.  However, they were not able to produce any such report/record in support of their version that the complainant and her husband/family travelled by bus and not by train on the fateful day.  On the other hand, the husband of the complainant appeared in person before us and also filed an affidavit saying that on 28.09.1992, they travelled from Jogeshwari to Ghatkopar via Dadar by Railways. He explained that the track Jogeshwari – Dadar – Jogeshwari was on the Western Railway, whereas the journey from Dadar to Ghatkopar and back to Dadar was to be performed on Central Railway local train.  For that purpose, they purchased Dadar – Ghatkopar – Dadar ‘extension tickets’ at Jogeshwari Railway Station.  Such extension tickets are normally issued by the Railways in conjunction with the issued tickets for any destination, not covered by the season ticket.  In this way, the husband of the complainant made it clear that they performed the journey from Jogeshwari to Dadar on the season ticket already held by them for travel from Borivali – Churchgate on the Western Railways.  He also stated that the journey from Dadar to Ghatkopar was performed by train on Central Railway.  The husband of the complainant denied categorically that he ever made any statement to the Railways that they travelled by bus as seven of a family.  He also denied his signatures on the unattested copy of the statement placed on record by the OP Railways.  In view of the facts narrated above, it would be in the interest of justice that the version given on behalf of the complainant should be believed regarding the mode of travel from Jogeshwari to Ghatkopar on the evening of 28.09.1992. Even if, the Railways were not able to lay hands on a copy of the Inquiry Report etc., they could have produced some circumstantial evidence to prove the report of the Inquiry Officer.  The Railways could have also produced in evidence, the officials who conducted the said inquiry, or some other persons involved with the conduct of the inquiry.  In the absence of such evidence on the part of the OP Railways, we tend to believe the version given by the complainant that they travelled by train on the fateful day for their journey from Jogeshwari to Ghatkopar and back.  It is a settled legal position that under the Consumer Protection Act, 1986, if two different opinions are possible, the one favourable to the consumer, should be adopted.  It is held, therefore, that the complainant is very much covered under the definition of ‘consumer’ as defined under the Consumer Protection Act, 1986.  The finding of the State Commission in the impugned order to that effect is upheld, therefore. 

17.     In so far as the grant of compensation to the complainant is concerned, it is evident from record that the complainant demanded a sum of ₹4.95 lakh only with interest as compensation in her consumer complaint.  In the application filed before the Hon’ble High Court of Bombay, she demanded a compensation of ₹7.3 lakh.  However, the complainant has demanded a sum of ₹18,22,350/- and provided details of the same in the revision petition filed by her, i.e., RP No. 3226/2009.  The sum of ₹18,22,350/- includes a sum of ₹9.84 lakhs for medical leave and another sum of ₹2.89 lakh for transportation by private vehicle.  The State Commission in the impugned order has ordered payment of compensation of ₹10 lakh to the complainant.  Given the facts and circumstances of the case, however, we are of the opinion that the amount as originally demanded in the consumer complaint, i.e., ₹4.95 lakh shall be the appropriate compensation payable by the OP Railways to the complainant.  The said sum shall be paid alongwith interest @9% p.a. from the date of the complaint till realisation.

18.       Accordingly, the revision petition filed by the complainant, i.e., RP No. 3226/2009 is ordered to be dismissed, whereas the revision petition filed by the Union of India (Railways), i.e., RP No. 1724/2009 is partly allowed and the award given by the State Commission stands modified as stated above.  There shall be no order as to costs.