KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO. 504/10
JUDGMENT DATED 28.7.2011
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANT
Dr. M.H. Rahimkutty,
Reesni, New Kavalloor, Pulimoodu Lane, Vattiyoorkavu,
Thiruvananthapuram
(Rep. by Adv. Sri. B. Ashok Kumar & N.G. Mahesh)
Vs
RESPONDENT
The Southern Railway,
Represented by General Manager, Chennai
(Rep. by Adv. Sri. P.K. Anil Kumar)
JUDGMENT
SHRI. M.K. ABDULLA SONA : MEMBER
This appeal prefers from the order passed by the CDRF, Trivandrum in O.P. No. 444/02 order dated 31.5.2010. The appellant is the complainant in the above O.P. to prefers this appeal against dismissal order of the Complaint by the Forum below. The respondents are the opposite parties in the above mentioned O.P.
In short, the complaint is a regular season ticket passenger in the opposite party’s train from Thiruvananthapuram station to Kanyakumari by using season ticket vide Train No. 1082 Jayanthi Janatha, Kanyakumari – Mumbai on 31.07.2001, the complainant was traveling from Thiruvananthapuram to Kanyakumari as usual. He was sitting on the side seat near the window of the train and when the train reached near Kaniyapuram at about 7.45 A.M. , the shutter of the window which was raised and locked suddenly it slipped down and fell on the right hand of the complainant causing series injury to the right hand and finger of the complainant. The blood rushed through the wound. Then the complainant who was at unconscious by the time was rushed to the Taluk hospital, Chirayinkeezh by his colleagues Later the complainant was directed to go to Medical College Hospital, Thiruvananthapuram for further treatment. Due to this accident, the complainant’s ¾ portion of tip crushed of. The small finger is removed by the doctors of the Medical College Hospital, Thiruvananthapuram. Alleging deficiency in service and negligence and indifferent attitude of the Railway personnel by not keeping the lock of the window properly the complainant preferred a complaint before the Forum below for the relief under the provisions of C.P. Act, the complaint who sustained huge loss and mental pain. Hence the complaint.
The opposite parties filed written version and contended that the complainant is not maintainable by law and also contended that the complainant did not prove that he has traveled by 1982 Express Train on 31.7.2001and the alleged train at all the complainant denied to specify whether he has unlocked the tower belts of the window beside which he has allegedly traveled. They contended that there is no deficiency in service on the part of the opposite party, railway authorities and allegation that the injury of the complainant is false and denied. They contended that this is a vexatious complaint and the complaint is liable to be dismissed.
The Forum below considered the evidence adduced by the complainant who examined as Pw1 and his witness examined as Pw2. The documents produced by the complaint and marked as Ext. P1 to P10. From the side of the opposite party, Dw1 examined as a witness and there is no document produced by him.
On the strength of this evidence the forum below framed two issues for considerations ;
1) Whether there is any deficiency in service on the part of the opposite party?
2) Whether the complainant is entitled for any relief claimed?
The Forum below answered both questions and discussed the evidence available before the Forum below. As per the view of the Forum below that the documents produced by the complainant. Ext. P7 is the season ticket belonging to the complainant. According to the opposite party, the season ticket was not valid traveler to travel in sleeper class coach. But the complainant has pleaded that in Train No. 1082 Jayanthi Janatha, season ticket holders are allow to occupy the sleeper class of certain compartment up to certain station and there was no prohibition to be evaluated by the T.T.E. moreover the complainant has been a regular Railway season ticket passenger traveling in this bogies since the past 20 years despite the sad condition of the opposite parties in the version no documents have been produced by the opposite party to substantiated that season ticket holders prohibited to travel in sleeper class coach. The opposite party has specifically contended that the complainant was not a passenger by 1082 Express Train as the coach number and seat number have not been mentioned in the complaint. The Forum below found that the complainant has not mentioned specifically in which coach and in which seat number he was seated. When the complainant’s specific case is that the shutter of the window in which he was to raised was slipped down. It is the duty of the complainant to prove first that he had traveled in that train by specifying the coach No and seat Number. Furtherness it is a case of the complainant that when the shutter slipped on his right hand finger, blood rushed through the wound and the chain was not pulled to avoid inconvenience to other passengers. Here the crucial pointed to be noted that whether such a question has been informed to the T.T.E. concerned in the specific coach. Though the complainant has pleaded that his colleagues had informed the matter to the station master and T.T.E, there is no corroborative evidence to substantiate the same version of the complainant. In the absence of any such evidence to prove that the complainant had traveled in the said train
as no coach number or seat number have been mentioned. The Forum below found that the complainant has failed to prove his case with cogent evidence. The complainant is not have case that he had informed the matter to the police or given any complaint in writing to the opposite party even at a later stage. The Ext. P1 is the complaint dated 20.9.01 which was sent to the Chief Manager, Southern Railway after about 1 ½ months from the date of incident. The Forum below surprised that even after the date of the occurrence of such alleged serious injury has pleaded in the complaint, the complainant did not file any written complaint to the Station Master or the T.T.E. for about 1 ½ months. As a prudent citizen if at all such an incident had happened, the complainant who have filed a complaint atleast through his colleagues complaining about the incident the coach and the specific window etc. But no action is seen taken on the part of the complainant. Which was the commend of the Forum below the Forum below found that the complainant has miserably failed to establish his complaint with cogent evidence and found that the complaint is liable to be dismissed.
In the result, the Forum below dismissed the complaint without cost.
On this day, this appeal came before this Commission for final hearing, both the counsel for the appellant and the respondents are present and they argued there own respective cases vehemently. The Counsel for the appellant argued the appeal on the grounds of Appeal Memorandum that the order of the Forum below is strictly against the principles of law and evidence. He submitted that the Forum below given sufficient opportunity to adduce the evidence. He submitted that the Forum below did not consider the deposition of Pw2 and did not discussed the evidence of Pw2 in the impugned order passed. . The Forum below also failed to discuss the Ext. P10 document which clearly shows that the appellant sustained the alleged serious injuries. In the circumstances the counsel for the appellant argued that the Forum below passed the impugned order without discussing and appreciating the evidence adduced by the complainant. From the part of the opposite party there is no evidence adduced to substantiate their defense except the evidence of Dw1 who is a Mechanical Engineer no way related with the incident. The counsel for the respondent/opposite party submitted that the complainant did not prove that he was traveling in the train No. 1082 with a valid ticket. According to the opposite party, the complainant is totally a stranger or a trespasser and he has not entitled for any relief. Under the head of the deficiency in service and unfair trade practice from the part of the opposite party. Secondly the counsel for the opposite party seriously contended that the Forum is not having any legal jurisdiction to entertain this dispute established by the ministry of Railway . Even though as per the Railway Tribunals Act is a statutory body to entertain this dispute established by the ministry of Railway. Another contention raised by the counsel for the opposite party is that all the shutters of the bogies bolted by the Mechanical engineer of Railway at the departure station of the Train No. 1082. The complainant/passenger who himself raised shutter and failed to put bolt correctly in to the whole reason for the accident. It is due to the negligence of the passenger.
We this Commission heard in detail both sides and examined each and every pieces of evidence adduced both complainant and the opposite parties before the Forum below. It is seen that the complainant is a passenger traveling on season ticket since last 20 years in the very same train. According to the complainant, certain sleeper coaches were permitted to use for the season ticket holders up to certain arrival stations. It is possible in some Express Trains. Suppose the complainant who entered into a non eligible sleeper coach and traveled in the same boggy, the T.T.E. could not permit to travel him in that boggy on season ticket. In other words there is a traveling ticket examination squad usually over checking these aspects in the trains. The Railway/opposite party did not have any case that they taken any such action against the complainant even till he filed his complaint before this Forum below. This shows that he was a passenger with proper ticket. Another contention taken by the counsel for the respondent/opposite party is that this complaint is not maintainable as per the provisions of the C.P. Act even though the Railway is having their own tribunal to redress the very same dispute. This argument is not legally sustainable. The Railway Claims Tribunal is having the jurisdiction to entertain this dispute. As per the section 3 of the C.P. Act is also having the jurisdiction to entertain the very same dispute. Hence this complaint is maintainable as per the provisions of the C.P. Act.
The view taken by the Forum below is totally discard the evidence of Pw2, the witness cited by the complainant. As per the Ext. P1 to P10, it is clearly seen that the complainant who sustained injuries and hardships as mentioned in the complaint. We do not think that the Forum below ignored this cogent evidence in total and accepted blindly the pleadings in the version of the opposite party which filed by the respondent/opposite party without adducing any supporting evidence except the deposition of Dw1 who is the junior engineer, Southern Railway. This witness is not having any knowledge about the accident and injuries of the complainant. He stated that the Mechanical details of shutters of the bogies of the train. In other words there is no evidence seeing from the part of the opposite party to prove that the allegations of the complainant is false and untrue. We don’t know why the Forum below ignored cogent evidence of the complainant and they accepted the pleadings of the version of the opposite party. They have taken a view against the complainant and dismissed the complaint. The Railway opposite party is usually filing almost stereo type versions in each and every cases. This version is nothing but a formality of the Southern Railway/ opposite party. The finding of the Forum below that a person who sustained serious injury during the course of the travel due to an accident as mentioned in the complaint, the
victim must be searched, either T.T.E or to the Station Master etc. is beyond the imagination. The Forum below ignored that it is nothing but a problem of causality. In such a circumstance, nobody can judge the behavior of a victim of the accident. He may act as per his will power and mental strength. Those who are sitting in the ivory tower, they can be easily think like ways. Suppose a person will involve in an accident as in a crisis then alone he will be realized the reality of the human life. The Forum below conveniently ignored the Pw1. The complainant is a professor by profession, necessarily we are seeing any hesitation to believe the versions of the complainant in this case. An accident is nothing but a unexpected accidental incident. It may be a destiny or shock. Sometimes these are fate. How this victim avoid this accident? He is in between the life and death. This is the established usual stand of the railway in all of their cases. Even in the Perumon train tragedy also the Railway’s attitude is very same. Every body knows that, now a days, what are going on in Trains each and every day. Earlier days, the train is the most reliable and safe for the journey. Everybody depended their journeys in the Railway these days. But now a day it is very risky. We can not accept the view of the Forum. No, railway passenger should be carried his own medical casualty medicines and his own security men for his travel in the Railway. Even though the opposite party is not having a case, that the complainant falsely instituted this complaint with experimental. We are seeing that the view of the Forum below is not accordance with the provisions of law and evidence. It is against the spirit of the consumer protection Act, a special enactment passed by the parliament for the protection of consumers and cost free and speedy justice. A consumer friendly attitude is highly necessary for the Forum below. The Forum below is par from a Civil court. Eventhough there is no evidence adduced before the Forum below by the opposite parties except version and witness Dw1(who is only an engineer not any way directly connected with the accident) the Forum below has given somuch value for his evidence and dismissed the complaint without consider the evidence of the complainant.
The National Commission taken a view in each and every decisions that the Consumer Forum is not a regular court. It is par from a court and need not consider the compound question of law. We are seeing that there are sufficient reasons to interfere in this order passed by the Forum. This order is not legally sustainable.
In the result, this appeal is allowed and set aside the order passed by the Forum below. We assessed the compensation as Rs. 40,000/- with interest @12%per annum from the date of the complaint. The opposite party is directed to pay Rs. 40,000/- with interest at 12% from the date of the complaint to the complainant within one month after the receipt of the copy of the judgment. If the opposite party will dis obey to carry out this order they also entitled to pay Rs. 5,000/- as cost of proceedings to the complainant. The points of the appeal discussed one by one and answered accordingly.
The railway is a prestigious institution of the people of India. It need not collect this ordered amount from the fund of the Railway. It is the money of the people. The opposite party is directed to obey the order of the Commission with in the stipulated time and also direct to collect this money from the pocket of the concerned employees as per the direction of the Supreme Court in “GHAZIABAD DEVELOPMENT AUTHORITY Vs BALBIR SING (11/2004 – CPJ 12 (sc),
M.K. ABDULLA SONA : MEMBER
M.V. VISWANATHAN : JUDICIAL MEMBER
ST
