Delhi

StateCommission

CC/11/391

WAHIDA - Complainant(s)

Versus

SOUTHERN RAILWAYS & ANR. - Opp.Party(s)

04 Mar 2016

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                     

Date of Arguments: 04.03.2016

Date of Decision: 23.03.2016

 

Complaint Case No. 391/2011

 

In the matter of:

1. Smt. Wahida

W/o Late Sh. Mohd. Azim

2. Sh. Meer Mohammad

S/o Noor Mohammad

3. Smt. Asma

W/o Sh. Meer Mohammad

 

All resident at:

 

Village Sewanpur

P.O.Khojpur

Tehsil & P.S. Shahawar

Distt. Kanshi Ram Nagar

Uttar Pradesh                                     .........Complainants

 

Versus

 

1. General Manager

Southern Railway

Service through Chief Secretary

Indian Ply., Rail Bhawan,

New Delhi-110011

 

2. General Manager

North Center Railway

Baroda House

New Delhi-110011

 

3. Ministry of Indian Railway

through its Chief Secretary

Rail Bhawan

New Delhi-110011                                       ..........Opposite Parties         

                                                                  

CORAM

 

O P GUPTA                              -                  MEMBER (JUDICIAL)

S C JAIN                                 -                  MEMBER

1.         Whether reporters of local newspaper be allowed to see the judgment? Yes

2.         To be referred to the reporter or not? Yes

 

O P GUPTA -  MEMBER (JUDICIAL)

 

JUDGEMENT

1.      The present complaint has been filed on the allegations that Sh. Mohd. Azim husband of the Complainant-1, father of the Complainant-2 and Mother of the Complainant-3 started his journey from Kasaragod to Hazrat Nizamuddin in Mangla Express train on 31.10.2010. During journey numbers of hawker were selling food, snacks and drinks etc. in the train with the collusion of the railway employees and running police staff. One hawker gave some spurious item to Sh. Mohd Azim. After consuming the same he became serious and unconscious. Railway police brought him out of the train at Mathura junction at about 11:30 am on 02.11.2010. Senior Division Medical Officer provided first aid to Sh. Mohd Azim and referred him to Civil Hospital Mathura. He was admitted in Mathura at 12:15 noon and Doctors tried to save him but he expired at 9:15 pm. The death took place due to negligence of OPs because it is a duty of OPs to take care of all passengers and to check the hawker whether they are selling food articles in hygienic and healthy condition. The food items must not be injurious and not be spurious. Mohd Azim was readymade garments contractor and order supplier and was earning Rs. 15,000/- per month after deducting all expenses. He was spending more than Rs. 15,000/- on complainants excluding himself. He was aged 25 years and his father is aged 63 years. Mohd Azim was expected to live upto 70 years and earn upto 65 years. This Commission has jurisdiction as ticket was to Hazrat Nizamuddin Delhi. Hence this complaint for direction of Rs. 60,00,000/- as compensation alongwith interest @ 18% p.a. from 02.11.2010 till payment, Rs. 5,00,000/- as compensation for mental agony to each complainant (Rs. 15,00,000/- in total). They have also prayed for providing employment to complainant-1 in railway.
2.      OPs-1 & 2 have filed written statement raising preliminary objection that this Commission has no territorial jurisdiction as ticket was purchased from Kasaragod and journey was started from there, and he fell ill at Mathura Junction which fall under the territorial jurisdiction of Distt. Mathura, Uttar Pradesh. There is no deficiency or negligence on the part of the OPs. The documents like Bed Head Ticket and post mortem examination are not readable and legible so there is no content to suggest that cause of death was consumption of spurious/poisonous food. On merits they have denied that during journey numbers of hawker were selling food, snacks and drinks etc. with collusion of railway employees and with running police staff. They have denied that any hawker was selling food etc. or gave some spurious item to Mohd. Azim or after consuming the same Mohd Azim became serious and unconscious. The train No. 2617 namely Mangla Express was having a separate running pantry car attached with the train and there were authorised vendors/hawker to sell eatable items for the passengers in the train. The complainants have admitted that services were provided by OP at Mathura Railway Station. They submitted that whatever food items are sold by the licensed hawker are fully checked up by the vigilance health staff of the railway department and there is no occasion to sell unhygienic food.
3.      OP-3 has filed separate written statement raising preliminary objection of territorial jurisdiction. According to them the office of the Southern Railway is at Madras (Chennai) and office of North Central Railway is at Allahabad. The incident occurred and deceased was admitted in Mathura Hospital.
4.      The complainant filed rejoinder to written statement of all the OPs. Complainants have filed affidavit of Sh. Azam Khan to show that he was working with the deceased on contract basis, the deceased was a healthy person of 25 years. To the same effect is affidavit of Sh. Munish Khan and Sh. Irshad Ahmed Ansari filed. Complainant-2 has filed a short affidavit reiterating the averments made in the complaint.
5.      The OPs failed to file any evidence despite opportunity and their evidence was closed on 29.01.2016. They did not pay cost imposed on 10.09.2015 for adjournment for filing their evidence.
6.      We have gone through the material on record and heard the arguments.
7.      It is admitted that the incident took place in Mathura and death also took place in Mathura. So simply because last destination of the deceased was to Hazrat Nizamuddin, Delhi, cannot confer jurisdiction on Commission in Delhi. In Sony Surgical Vs. National Insurance Company IV (2009) CPJ 49 the Hon’ble Supreme Court held that if fire took place in Ambala, Chandigarh Forum has no jurisdiction.
8.      The complainants have failed to prove the cause of death. Post mortem report does not suggest that death took place due to food poisoning. They have also not given the name and address of the vender who allegedly supplied the food to Mohd. Azim. Onus was on the complainants to prove that spurious food was provided and the said food was cause of death.
9.      It was held by the Hon’ble National Commission in Southern Railways Vs. M.Chidambaram (2002) 1 CPJ 34 held that in case of untoward incident under Section 124 (a) Act proper Forum would only be Railway Claim Tribunal. Again in Dinesh Kumar Vs. Railway Station Master Raipur IV (2004) CPJ 136 it was held that Section 15 Railway Claims Tribunal Act bars jurisdiction of Consumer Court.
10. It may also be noted that one of the reliefs claimed by the complainant is providing employment to widow of the deceased. The same is beyond the scope of Consumer Protection Act.
11.  For the foregoing reasons, the complaint is dismissed.
12. One copy of the order be sent to all the parties free of costs thereafter the file be consigned to Record Room.

 

(O P GUPTA)
MEBER (JUDICIAL)

 

 

(S C JAIN)
MEMBER​