Per Sri A. Hazarath Rao,  President:-   

            The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking compensation of Rs.10,00,000/- together with interest @24% p.a., from 31-10-11 on account of death of her husband due to the negligence of the opposite parties;  Rs.1,00,000/- towards mental agony; R.1,00,000/- towards deficiency of service and Rs.5,000/- towards costs.

2.   In brief the averments of the complaint are these:

          One Medaboina Venkateswarlu (husband of complainant) on 31-10-11 purchased a general ticket for Rs.14/- to travel from Vinukonda to Guntur and at about 6.30 hrs boarded Secunderabad to Guntur passenger train.  One Ulligaddala Krishna Murthy neighbour of the said Venkateswarlu accompanied.   The train was over crowded with passengers.   Due to heavy rush many passengers sat on the luggage berths which were above the seats.   At Phirangipuram one passenger who sat on the luggage berth i.e., above the seat of the said Venkateswarlu while getting down fell on his neck.  Due to that impact, the said venkateswarlu developed swelling and sustained internal injury on his neck.   After reaching Guntur the said Venkateswarlu went Government Hospital, Guntur with the help of his neighbour Krishna Murthy and got admitted in emergency ward.   While undergoing treatment the said Venkateswarlu died on 01-11-11 in Government General Hospital, Guntur.   On getting information the railway police, Narasaraopet recorded statements of the complainant and the said Krishna Murthy and registered the case as Crime No.41 of 2011 u/s 174 Cr.P.C.   The doctor who conducted post mortem opined that the said Venkateswarlu died due to spinal cord injury.  Husband of the complainant was hale and healthy before his death and is sole bread winner of the family.   The opposite parties should not have issued more than 100 tickets for one general compartment.   Intentionally the opposite parties have issued more tickets and failed to take any steps to provide seats to all ticket holders.   Not providing seats to all passengers even in general compartment amounted to deficiency of service.   The opposite parties though received notice kept quite.  The complainant suffered mentally and monetarily on account of sudden death of her husband.   The complaint therefore be allowed.  

3.    The opposite parties after filing version in person did not chose to appear subsequently and as such they were exparte. The contention of the opposite parties in short is hereunder:-  The Consumer Forum has no jurisdiction to try this complaint in view of provisions of section 50, 123 & 124 of the Indian Railway Act, 1989.  Section 13 r/w 15 of Railway Claims Tribunal Act, 1987 barred the jurisdiction of Consumer Forums.  Mere issuance of ticket is not a ground to file complaint.   In terms of section 50 and 51 of Railways Act, 1989, a ticket shall be deemed to have been issued subject to condition of availability of accommodation in the class of carriage and the train for which the ticket is issued.   A passenger sitting on luggage berth accidentally falling on the deceased is an act of God and not due to fault of Railway or its servants.   If the deceased found no room in the compartment, nothing prevented him to cancel such ticket and get refund, if at all purchased general ticket on 31-10-11 at Vinukonda Railway station.   The deceased was admitted in Government General Hospital, Guntur at 6.50 pm on 31-10-11 while the deceased admittedly traveled on passenger train no.57305 on 31-10-11.   The schedule departure of the train at Vinukonda is 04-52 hrs and schedule arrival is 08-45 hrs at Guntur.  A copy of ticket filed with the complaint indicated the time of issue at 5.40 hrs.   The said ticket was not issued for journey in train No.57305 as contended by the complainant.   The opposite parties reliably learnt that the deceased attended prayer at Pedakakani by some other transportation, and got injured somewhere and admitted at General Hospital in the evening hours on                           31-10-11 and expired on 01-11-11.   The opposite parties never guaranteed accommodation in general compartment.   The issuance of tickets for unreserved compartment is subject to condition of availability of accommodation.  It is up to the passenger in the event of non availability of accommodation in unreserved compartments.   The complainant herself admitted that some passengers were sitting on luggage berths for paucity of accommodation.  The opposite parties did not commit any deficiency of service.  The complaint therefore be dismissed.

4.   Exs.A-1 to A-14 on behalf of complainant were marked.   No documents were marked on behalf of opposite parties.

5. Now the points that arose for consideration in this complaint are:

1. Whether the opposite parties committed deficiency of service i.e.,           by issuing tickets more than seating accommodation in general      compartment?

2. Whether this Forum has no jurisdiction to entertain the complaint?

1. Whether the complainant is entitled to compensation for the death of her husband?
2. Whether the complainant is entitled to claim Rs.1,00,000/- towards mental agony?
3. To what relief?

6.  POINT No.1:   The complaint averments and affidavit of the complainant revealed that the deceased Medaboina Venkateswarlu was traveling in general compartment of a passenger train.   In Smt Savithri Avasti vs. General Manager, Northern Railway, 2005 CTJ 1238 (CP) NCDRC it was held:

                   “We are conscious of the judgement of this Commission wherein we had held that the loss of baggage in a reserved compartment will bring the dispute within the Consumer Protection Act and not to be recovered under section 100 of the Indian Railways Act but this is not the case here.   Since this was not a reserved compartment and no attendant is assigned to this type of coach, hence onus in such situation to protect their own personal baggage lied with the passengers.   Hence we are not inclined to interfere with the order passed by both the lower Forums.  In a case like this either the baggage should have been booked or taken care of by the passenger herself”. 

7.      In this case the deceased Medaboina Venkateswarlu was traveling in an unreserved coach.  The contention of the complainant is that the opposite parties issued tickets more than seating capacity of that coach and was over crowded with passengers.   The statement said to have been given by the deceased Medaboina Venkateswarlu to the Station House Officer, out-post police station, GGH, Guntur (Ex.A-7- which formed basis for the police to register a crime u/s 174 Cr.P.C.) did not reveal when the compartment in which he traveled became over crowded.  The learned counsel for the complainant did not bring to the notice of this Forum that the Railway Administration was barred from issuing tickets in general compartment beyond seating capacity.  The complainant did not file post mortem examination report before this Forum for the reasons best known to her.  Taking a clue from the above decision, it can be said that no attendant was attached to general compartment to control passengers from stepping into the train beyond the seating capacity. In view of the above discussion, we opine that the opposite parties did not commit any deficiency of service and answer this point against the complainant. 

8.  POINT No.2:-   The Railway Claims Tribunal Act, 1987 came into force with effect from 08-11-89.  Claims tribunals were constituted u/s 13 of the Railway Claims Tribunal Act, 1987.   Section 13(1)(a) of the said Act empowered claims tribunal to deal the cases that arose u/s 124(a) of the Railways Act, 1989.

9.      Section 123 (c) of the Railways Act, 1989 which came into force with effect from 01-08-94 defined untoward incident as mentioned infra:

          Untoward incident means:-

      1) (i) The commission of a terrorist act within the meaning of subsection                            (1) of section 3 of the Terrorist and Disruptive Activities                                     (Prevention) Act, 1987 (28 of 1987); or

          (ii) the indulging in rioting, shoot-out or arson, by any person in or on                             any train carrying passengers, or in a waiting hall, cloak room or               reservation or booking office or on any platform or in any other                         place within the precincts of a railway station; or

          2) the incidental falling of any passenger from a train carrying                               passengers”.

 10.   Section 124 (a) of the Railways Act reads as follows:

          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 of loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to-

(a) suicide or attempted suicide by him;

(b) self- inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation.- For the purpose of this section," passenger" includes-

(i) a railway servant on duty; and

(ii) a person who has purchased a valid ticket for traveling, by a train           carrying passengers, on any date or a valid platform ticket and     becomes a victim of an untoward incident.”

11.  Section 15 of the Railway Claims Tribunal Act with effect from 01-08-94 created a bar on court or other authority to deal the cases u/s 13(1), (1a) of the said Act and it reads as follows:

          Section 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,-

1. Relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for-
   1. Compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;
   2. Compensation payable under section 82A of the Railways Act or the rules made there under.

12.   In Southern Railways vs. M. Chidambaram 2002 (1)CPJ 34 (NC)  it was held that jurisdiction of a Consumer Forum was barred u/s 15 of the Railway Claims Tribunal Act, 1987 in respect of an untoward accident as mentioned in section 124 (a) of Railways Act, 1989.

13.   In Dinesh Kumar Urf Dileswar vs. Railway Station Master, Raipur and another 2005 CTJ 1186 (CP) (SCDRC) it was held:

  “However, it may be noticed that in the said case (Thirumugham                co-operative Agricultural Credit Society vs. M. Lalitha (Dead) through Lrs. & others, 2004 CTJ 1 (SC)(CP)=2004(1)CPR 35(SC) it was observed that remedy under the Consumer Protection Act, though is in addition to other remedies provided under other Acts, the said remedy is available unless there is a clear bar to such remedy.   As noticed earlier, Section 15 of the Act clearly bars the jurisdiction of any other court or authority.”

14.    In this case the deceased Medaboina Venkateswarlu sustained injury due to an accidental fall of a co-passenger sitting on luggage berth while getting down in an unreserved compartment and later succumbed to injuries in GGH, Guntur.   The said incident in our considered opinion can be termed as untoward incident.   Taking a clue from the above decisions, jurisdiction of not only the courts but also other authorities is barred u/s 15 of the Railway Claims Tribunal Act, 1987.   Under those circumstances, returning the complaint for presentation before proper authority will meet ends of justice rather than dismissing the complaint.   The complainant can file a petition to condone the delay before the appropriate authority, if so, advised.   We therefore answer this point accordingly.

15.  POINTS 3 & 4:-   In view of above findings, the complainant is not entitled to either compensation as claimed or damages towards mental agony.   We therefore, answer these points against the complainant.

16.  POINT No.5:-         In view of the above findings, in the result                      the complaint is returned for presentation before proper authority.   The complainant can file an application to condone the delay in seeking relief before the appropriate authority, if so, advised.   No costs.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 27^th day of March, 2014.

        Sd/-XXX                                                                     Sd/-XXX

             MEMBER                                                                   PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:    NIL

   Sd/-XXX

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.