Complaint presented on  :  25.04.2013

                                                              Order pronounced on  :  31.03.2016

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

THURSDAY THE 31^st    DAY OF MARCH  2016

C.C.NO.239/2013

1.G.Baskaran,

2. B.Parimala

Both are residing at,

No.7/5, Gandhiji Road,

Amma Pettai, Thanjavur (Dt)

                                                                                     ..... Complainants

..Vs..

Date of complaint                                  28.01.2015

Counsel for Complainant                      :M/S  S.V.Karthikeyan

Counsel for  Opposite party                     : M/S.N.R.Narayanen

O R D E R

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1. THE COMPLAINT IN BRIEF:

          The Complainant’s son is an Engineering graduate and studied at Sastra University, Thanjavur and he was working as a Team leader at M/S Pragon Dynamics into systems Pvt Ltd., at Adambakkam, Chennai. He used to attend office by Electric train from Mambalam to Tambaram  Station.  The Complainant boarded the train at 7.30 pm to go to Tambaram and at about 7.40.p.m  the train started  abruptly at Saidapet and owing to jerking and jolting, Praveenkumar  who was standing near the door fell down from the running train and died, co-passengers shouted and Mr.Shanmughavadivel pull the chain to stop the train, it did not stop and stopped next station. Shanmugaghavadivel informed the incident at St.Thomas Mount Station and thereafter keeping Luggage in their room and reached accident spot at 10.p.m and then went to Government Hospital, Chennai and identified the dead body of Praveenkumar. The Inspector registered an FIR in Cr.No.224/09 U/S 174 Cr.PC as hit by train while crossing the track. Actually the deceased died due to the negligent driving of the Opposite Party driver. The deceased eligible for promotion in June 2009 and he was negotiating a trip to USA. He used to send at least Rs.15,000/- p.m to the Complainant from August 2009. The deceased has paid the tuition fees for his Ph.D.Course. Thereafter the Complainant’s filed this Complaint for a compensation of Rs.15 lakhs and for costs of this Complaint.

2. WRITTEN VERSION OF THE OPPOSITE PARTY IN BRIEF:

          The Opposite Party is only an Administrative head and for death or injuries or loss to a passenger in a railway accident or untoward incident, the same is to be dealt with under the provisions of the Railway Claims Tribunal Act, 1987. At the outset itself that this Hon’ble Forum does not have jurisdiction to adjudicate upon compensation claims involving cases of death due to accidental fall from train carrying passengers, which is described as an untoward incident under Section 124A of the Railway Act, 1989. The Railway Claims Tribunal established under Section 3 of the Railway Claims Tribunal Act, 1987 alone has the jurisdiction and powers to inquire into on and from the appointed day, no Court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in (Sub- section (1) and 1-A) of Sec.13. The Complainants ought to have therefore approached the Railway claims Tribunal instead of agitating this matter wrongly as a consumer Complaint before this Hon’ble Forum. The consumer Complaint is liable to be dismissed on the ground of lack of jurisdiction. Hence the Opposite Party prays to dismiss the Complaint with costs.

3.POINTS FOR CONSIDERATION:

          1. Whether this Forum has jurisdiction to entertain this Complaint?

          2. Whether there is deficiency in service on the part of the opposite party?

          3. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT:1

          The Complainants are the parents of the deceased filed this Complaint claiming compensation, who travelled in the electric train and fell down and died on the spot at 7.40p.m on 13.04.2009 at Saidapet due to sudden jerk & jolting of the train. The Opposite Party specifically contended in the written version and during the course of oral submission that for the death or injuries to a passenger in a Railway Accident the same has to be dealt with under the provision of the Railways Claims Act, 1987 and not under the CP Act. Further argued that the Railways Claim Tribunals meant for to deal with claims arose out of the accidents, loss of goods and refund of fares and therefore this Forum has no jurisdiction to entertain this Complaint.

          5. The Section 3 of the Consumer Protection Act give rise an additional remedy to the Consumers apart from a remedy from any other law and the Consumers can file the Complaint without detrimental to the other laws. The Complainant counsel relied on an order reported in I (1997) CPJ 20 (NC) (Union of India & Ors. Vs. Nathmal Hansaria & Anr.)  The National Commission held as follows:

                   After considering the facts of the case and carefully going through the points raised by the railways, we are  of the opinion that the State Commission is right in pointing out that a Railway Passenger is a Consumer and the depth of Kabita Hansaria was caused by her fall from the passage between the two compartments because it did not have grills on sides to hold her back in case of the jerk during the movement of the train.

The Assam State Commission held that a Railway passenger travelling in a train on payment of consideration is a Consumer within the ambit of Consumer Protection Act, 1986. This view was confirmed by the National Commission in the above relied order. Therefore, considering the view of the National Commission relied above and in the case in hand the deceased also travelled in the train at the time of accident on payment of consideration, the contention raised by the Opposite Party that this Forum has no jurisdiction is not sustainable and on the other hand, it is held that this Forum has jurisdiction to entertain this Complaint.

6.POINT:2

          The Complainant’s son Praveenkumar boarded at T.Nagar along with his friend R.Shunmugavadivel at Mambalam Station on 30.04.2009 to go to Tambaram and while travelling the train at Saidapet due to jolting and jerking the said Praveenkumar fell down from the train at 7.40 p.m and died on the spot. The Opposite Party did not dispute the accident as alleged by the Complainants in his written version. Therefore, it is held that as alleged by the Complainants due to jolting and jerking while the deceased was travelling in the train fell down and died in the train accident.  

          7. The Complainants case is that due to jolting and jerking the Complainants fell down and died establishes that the Opposite Party negligent driving of the train. This fact was also not denied by the Opposite Party in the written version. Therefore, it is held that due to the Opposite Party negligent act the Complainants son died in the accident and therefore it is further held that the Opposite Party committed Deficiency in Service.

8.POINT:3

           Since the deceased died due to the negligent act of the Opposite Party, the Complainants parents are the dependants of the deceased they are eligible for compensation is accepted. The deceased Studied in Diploma in Computer, B.Tech Engineering Course at Sastra University and the same have been proved by Ex.A6 & Ex.A7 certificates. The Complainants alleged that the deceased also paid fees at Madras University to do the Ph.d Course and the said fees was  refunded to them under Ex.A12.  In Ex.A12 the 1^st Complainant name only found as a depositor and also refund. Nowhere in Ex.A12 even at the time of the paying   the amount the deceased name was not found. Therefore Ex.A12 cannot be accepted that the Complainants applied to study the Ph.d Course. However, Ex.A17 letter issued by one concern where the deceased was working and he was drawing a monthly salary of Rs.25,000/-. The deceased worked in the said concern nearly for two years.  Considering the status of the deceased at the time of death and his age a sum of Rs.8,00,000/- towards compensation for mental agony can be ordered apart from that a sum of Rs.5,000/- towards litigation expenses.

          In the result Complaint is partly allowed. The Opposite Party is ordered to pay a sum of Rs.8,00,000/- (Rupees eight lakhs only) towards compensation to the Complainant and also to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The above amount shall be paid to the Complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 31^st  day of March  2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANTS:

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY :

                                      …..NIL…..

MEMBER – II                                                               PRESIDENT