Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
This is an appeal lying in this Commission since 2004. No steps were taken by the appellant for circulation since objections were removed. Our office on its own placed this matter before this Bench for disposal. On 03/08/2011 on finding that both the parties were absent and matter was taken out from sine-die list, we have directed the office to issue notices to both the parties returnable 26/09/2011. Accordingly, as per endorsement dated 19/09/2011 office has sent notices to both the parties, but both parties are absent.
2. The complaint was filed by the appellant in District Consumer Disputes Redressal Forum, Pune alleging deficiency in service on the part of Railway Authority. He had purchased ticket of Pragati Express for travelling from Pune to Mumbai on 29/12/1998. While boarding the train, his foot tripped over a huge pit on the Platform No.3 which was left un-repaired by the Railway Authority. According to him, no Railway official was present on the Platform to help him at that time and his co-passengers helped him to board in the train and he had to undergo pain and agony till he reached Mumbai. On reaching Mumbai co-passengers and friends taken him on wheelchair to Breach Candy Hospital, where he was admitted. It was found that he had broken his right hip bone and remedial operation was performed on him for which, he was required to spend a lot of money. Therefore, he filed consumer complaint seeking monetary compensation of total amount of `5 Lakhs which included medical expenses incurred for medical treatment, transport charges, conveyance charges and then loss of business of three months, etc.
3. Opponent filed written version and they specifically pleaded that the complainant had not lodged any complaint with Railway Authority on 29/12/1998 on which date he had suffered a sort of accidental fall because of pit found on Platform No.3. After 2-3 months as late as on 10/02/1999 he had sent notice to the Railway Authority. According to the opponent, there was no deficiency in service on their part. The complainant had purchased ticket for Pragati Express. He had ultimately travelled in the Pragati Express and the fall in the pit on the railway platform was not brought to their notice immediately by the complainant and therefore, they could not do anything in that behalf and also pleaded that it was negligence on the part of the complainant himself for not properly walking along the platform. The opponent also claimed that such type of dispute must be presented under Section 15 of Railway Claims Tribunal Act and Consumer Forum has no jurisdiction to entertain and try such type of complaint as filed by the complainant and therefore, opponent pleaded that complaint should be dismissed with cost.
4. District Consumer Disputes Redressal Forum considered various provisions of Indian Railways Act and also provisions of Railway Claims Tribunal Act and held that contention of the Railway Authority that the complainant should have approached to the Railway Claims Tribunal under Section 15 was devoid of any substance, but District Consumer Disputes Redressal Forum held that the consumer complaint as filed by the complainant is not tenable in law for the simple reason that the complainant had purchased ticket for Pragati Express and on that date, complainant had travelled from Pune to Mumbai and therefore, ticket holder who travelled by the train should not have any grievance about deficiency in service. District Consumer Disputes Redressal Forum further held that fall of complainant because of pit found on Platform No.3 was not proved by adducing evidence by the complainant himself. The complainant should have filed affidavit evidence in support of his contention, but instead of doing so, he placed reliance on the joint affidavit filed by Mr.Pramod Pandurang Jadhav and Mr.Devidas Raut on 23/01/1999. Filing affidavit of all persons who helped him to take him to Breach Candy Hospital is one thing, but he had not filed his own affidavit evidence in support of his own contention. That apart, the District Consumer Disputes Redressal Forum was of the view that the complaint is required to be decided under the law applicable to the cause. So, it is the Civil Court who has jurisdiction to entertain and try such complaint. The consumer complaint cannot be entertained for the purpose. So holding, the District Consumer Disputes Redressal Forum was pleased to return the complaint to the complainant for presenting it before the appropriate Court as per the law. Aggrieved by this order, org. complainant has filed this appeal.
5. Since, both parties are absent, we perused the impugned judgement and we are finding that this is an action in tort, there was no consumer dispute involved. While boarding the train, the complainant accidentally fell into the pit and sustained some fracture. In fact, it was complainant’s own negligence in not noticing the pit found on the Platform No.3. This was not a consumer dispute, but this was an action which could be well brought under the tort. Therefore, District Consumer Disputes Redressal Forum rightly held that for tortious act, remedy is with the Civil Court and since his journey on purchased ticket was over, there was no deficiency in service on the part of Railway Authority and as such, District Consumer Disputes Redressal Forum in our view rightly rejected the complaint and asked him to approach the Civil Court. Said order in our view is just, proper and sustainable in law. We find no substance in the appeal. Hence, we pass the following order :-
-: ORDER :-
1. Appeal stands dismissed.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 26th September 2011.
