O R D E R
SRI.D. KRISHNAPPA, PRESIDENT:
The grievance of the complainant against the Op in brief is, that she on 12/01/2010 went to Yeshwanthpur Railway Station at about 9.00 PM to go to Hubli along with her grand daughter by purchasing a ticket of Rs.110/- as a senior citizen. In the second platform, Ops had dug up a 6 feet deep pond measuring 5’ X 5’ to erect a concrete pole. While she was walking on the platform with her grand daughter she accidentally fell in the pond suffered injuries to her mouth, her teeth were broken and right leg was also fractured. Then she was removed from this spot through Railway check gate. Her ticket was collected at the gate and she was taken to St. Martha’s Hospital and stated Ops had not put any caution board or light at the pit and had not taken any care to protect the users of the platform from falling into the pond and stated that she was earning Rs.7,000/- per month in her tailoring job, incurred hospital expenditure of Rs.1,20,000/- and prayed for Rs.1.00 lakh towards pain and sufferings with loss of earning and thereby claimed compensation of Rs.4,70,000/-.
2. Op No.2 on whom notice was served has remained absent is set ex-parte. Op No.1 filed his version through his advocate contending that complaint is not maintainable, denying that complainant had purchased a ticket and entered into the platform and has further stated that sky walking on both way was under construction, area was totally fenced, light arrangements had been done and thereby denied the allegations of the complainant in they have not taken care to protect the users of the platform from falling. Op by further denying that the complainant’s ticket was collected at the check gate and further stated that senior citizen train ticket to go to Hubli was only Rs.53/- and not Rs.110/-and questioning the complainant is a consumer, as she has not produced any ticket or documents to prove that she had availed service of Op, has by further denying all other allegations of the complainant has prayed for dismissal of the complaint.
3. In the course of enquiry into the complaint, the complainant and Senior Divisional Commercial Manager of Op No.1 have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant along with the complaint has produced copies of hospital records for having taken treatment, salary certificate to prove the earning of the complainant, disability certificate and receipts substantiating the hospital expenditure she had incurred. Op No.1 has not produced any documents. We have heard the counsel for both parties and perused the records.
4. On the above contentions, following points for determination arise.
1. Whether this forum has jurisdiction to entertain and decide the complaint?
2. To what relief the complainant is entitled to?
5. Our findings are as under:
Point No.1 : In the negative
Point No.2 : See the final order
REASONS
6. Answer on point No.1: Learned counsel appearing for Op No.1 in the course of arguments submitted that complainant has not produced the ticket she had purchased for her traveling in the train from Bangalore to Hubli, nor any documents to prove that she had availed the service of the Railway and was in the railway premises as on the date of incident. The first Op has also taken such stand in his version and also in the affidavit evidence filed by him. But the complainant has not produced any such documents including the ticket for the proposed traveling in the train on the date of incident and she was there in the second platform of Yeshwanthpur Railway Station. The complainant in the complaint and also in the affidavit evidence has stated as if, while she was taken out from the platform, at the check gate, railway officials collected the ticket. But that cannot be believed, because the purchased ticket had not been used, as it was purchased for undertaking journey on that day from Bangalore. Therefore, the question of complainant handing over the ticket and the railway official collected the ticket does not arise and cannot be believed. The complainant has also not produced at least a platform ticket to substantiate that she was in the platform as on that date. Therefore as stated by the first Op, the complainant has not produced any piece of evidence to prove that she had availed service of the Ops for consideration. Therefore, in the absence of it, she cannot be called as a consumer.
7. According to the complainant, the incident had happened on 12/01/2010 at 9.00 pm. Admittedly, there is a Railway Police Station within Yeshwanthpur Railway Station Premises. The complainant on the date of the incident itself did not give any police complaint but she has only given complaint in that Police Station on 06/02/2010 after more than 25 days. If not, on the same day the complainant could have at least within a day or two after the alleged incident should have given complaint, but did not do so. This act of the complainant also throw doubt as to the incident happening in the Railway Platform as alleged by her. These are some of the material facts which point towards the complainant. The learned counsel appearing for the first Op further inviting our attention to a decision of the Hon’ble High Court of Karnataka rendered by a Division Bench in W.P No.12405/10 submitted the forum has no jurisdiction to entertain a complaint. In the light of the above judgment, we do not in this proceeding wish to go to the merits or demerits of the case as it should not prejudice the right of the complainant to make claim before the Railway Tribunal U/S 124A of Railway Act.
8. In the decision, the Hon’ble High Court referring to a similar issue whether the petitioner who had suffered personal injury due to the alleged negligence of the Railway authorities could file a complaint before a forum, has held that the Petitioner who claimed himself as a Consumer could not have filed a complaint before District Forum, Udupi, in view of Section 124 A and leaving liberty to the petitioner therein directed the Railways, that if an application is filed before the Railway Claim Tribunal U/S 124A of Railway Act, the Tribunal shall adjudicate upon the claim application. In view of the above decision, the claim of the complainant being similar with that of the claim dealt by the Hon’ble High Court, without expressing any opinion on merits, we hold that the complaint is not maintainable and proposed to dismissed the same with observation that the complainant is at liberty to approach the Railway Tribunal Act U/S 124 A. As the result, we pass the following order.
O R D E R
Complaint is dismissed as not maintainable with liberty to the complainant to make a claim before Railway Claim Tribunal by even invoking Section 24 A of the Consumer Protection Act 1986 for condoning the delay if there is any delay in filing the complaint.
Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 6th January 2011.
