IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
Dated this the 31st Day of December 2019
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, BSc,LL.B, Member
Sri.Stanly Harold, B.A,LLB, Member
CC No.229/13
Abhilash : Complainant
S/o Late.Raghavan Pillai
Meena Bhavanam, Panayam P.O
Perinad, Kollam, Kerala.
[By Adv.B.Byju & Adv.Sindu V.R]
V/s
- The Station Master : Opposite parties
Perinad Railway Station
Panayam P.O, Perinad, Kollam.
- The Divisional Railway Manager
Southern Railway
Thiruvananthapuram Division
Thiruvananthapuram.
A.S.Ajayakumar : 3rd Additional opposite party
S/o Subramanyan
Railway Quarters 6 A, Kollam.
[By Adv.S.Dileepkumar]
FAIR ORDER
Smt.S.Sandhya Rani, BSc, LLB, Member
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.
The averments in the complaint in short are as follows:-
The complainant is a masonry worker under a building contactor by name Babu. On 20.10.2012 at about 5.30 pm complainant took a railway ticket from Perinad railway station for going to Kayamkulam and walked through the foot over bridge from Platform No.1 to Platform No.2. While he was walking through the foot over bridge, a concrete slab suddenly collapsed and fell down to the platform along with the complainant from a height around 40 feet. Due to the said accident the complainant’s left hand was severely broken and the bone came out through the flesh and his head hit on the iron railings and his hearing is severely impaired and also causing serious injuries all over the body. Immediately after the incident he was taken to the District Hospital, Kollam by the local public with a requisition of the 1st opposite party dated 20.10.2012 and first aid treatment was given there. Since the injuries sustained to him is very serious in nature so he was referred to the Medical College Hospital, Thiruvananthapuram on the same day. An emergency surgery was done and steel rods were implanted at Medical College Hospital, Thiruvananthapuram. Thereafter the complainant was send back to
district Hospital, Kollam on 21.10.2012 and admitted there as inpatient till 15.11.2012. While treatment is going on there as inpatient again he was referred to Medical college Hospital, Thiruvananthapuram on 17.11.2012 for further treatment and admitted there as inpatient till 23.11.2012 and several treatment was given at that hospital. Thereafter he was send back to District Hospital, Kollam and admitted thereon 23.11.2012 till 11.12.2012 and now continuing his treatment as outpatient. The complainant was healthy, able bodied at the time of accident, after that he is not in a position to do even his ordinary avocations without the help and assistance of others. The family members of the complainant has suffered much loss, pain and hardship due to the accident sustained to him. The entire family members depend upon the income of the complainant. He belongs to a poor family and his father died very earlier and his sister’s husband was abandoned her. She along with her young child are under the care and protection of the complainant. His mother is very aged and she is under treatment for several years. The complainant has the responsibility to look after his aged and sick mother and his entire family. Due to the accident, the complainant is completely disabled and bedridden. Till this time he had spent more than Rs.75,000/- towards surgery, treatment, transport to hospital and other related expenses. Moreover the complainant lost a considerable amount due to his absence in work. He was earning Rs.700/- per day from his job. The complainant is unable to go for job due to the injuries sustained to him in the said accident. For removing the steel rod implants the doctor opined that another surgery is necessary in future. The accident was occurred solely due to the deficiency in service on the part of the opposite parties in maintaining the foot over bridge in good condition for the use of passengers. In this pathetic situation, the opposite parties failed to provide any financial assistance and compensation to the complainant. On 27.11.2012 the
complainant directly sent a request to the Chief Claim Officer, Southern Railway, Chennai for getting financial aid and assistance for treatment of serious injuries sustained to him, but the same was neglected by the opposite parties and advised the complainant to claim compensation through appropriate Forum. The complainant suffered much pain, hardship and mental agony due to the permanent physical disability and also in view of the present situation of his family. The opposite parties are liable to pay compensation to the complainant. The complainant is entitled to get an amount of Rs.5,00,000/- as compensation from the opposite parties due to the deficiency in service on the part of them and also he is entitled to refund an amount of Rs.75,000/- which was spent by him for the treatment and other related expenses and also he is entitled to get the said amount with interest and cost.
Originally there were only 2 opposite parties. Subsequently additional 3rd opposite party was impleaded as per order dated 04.08.16 passed in IA 107/16. In response to the notice opposite party 1&2 entered appearance and filed a joint version resisting the complaint and contenting that the complaint as framed is not maintainable either in law or on facts and the complainant has approached this Forum with unclean hands by suppressing material facts. According to the opposite party 1&2 the complainant has no cause of action against the opposite parties as there is no deficiency or imperfection in the official discharge of duties expected to be done by the opposite parties in this case. However the opposite parties would admit the incident but would content that the incident occurred due to the unexpected breakage of concrete slab over the foot over bridge, which probably caused due to the material failure of the slab. The said foot over bridge was periodically inspected at various levels and maintained in a satisfactory condition without any defects in safety aspects. During the routine inspections
made by the railway authorities in the foot over bridge did not notice any failure in its safety features warranting any immediate attention or any defects in the concrete slabs laid over the foot over bridge. There is no latches on the part of the railway authorities. But the accident occurred due to the reasons beyond the control of railway authorities.
The injury sustained on the complainant are not at all sufficient to warrant any kind of physical disability or inability to him in continuing his employment as alleged in the complaint. The complainant had resumed his normal health and is not prevented in continuing his normal occupation and activities after the initial management of the injury sustained to him. The complainant is not entitled to claim any compensation for any kind of disability, pain and sufferings and mental agony etc, as claimed in the complaint. The compensation claimed by the complainant on various heads are highly exorbitant and also the compensation claimed by the complainant for the injuries sustained to him and the claim for refund of medical expenses alleged to have incurred by him etc. are not legally sustainable and is liable to be dismissed.
The 3rd additional opposite party entered appearance in response to the notice and filed a memo stating that he has been adopting the contentions of the 1st and 2nd opposite party. The memo has been recorded.
In view of the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service on the side of the railway authorities in keeping and maintaining foot over bridge at Perinad Railway Station as alleged by the complainant?
- Whether the complainant is entitled to get medical expenses refunded and also get compensation as claimed in the complaint?
- Reliefs and costs.
Evidence on the side of the complainant consists of the oral evidence of PW1 to PW3 and Ext.P1 to P10 documents. The complainant has also got marked Ext.C1 disability certificate though marking the same without examining any of the doctors of the Medical Board has been seriously opposed by the learned counsel for the opposite party. However the opposite parties have not adduced any evidence either oral or documentary.
Heard both sides. The learned counsel appearing for both sides have filed notes of arguments.
Point No.1
The oral evidence of PW1 to PW3 coupled with Ext.P1 to P3 documents would establish that the complainant was a railway passenger and he was having Ext.P1 valid railway ticket to travel from Perinad to Kayamkulam and while he was crossing the foot over bridge over platform No.1&2 of the Perinad Railway Station he fell down from the foot over bridge as the concrete slab placed on the over bridge was dismantled and the complainant fell down to the platform which is having 40 feet depth from the foot over bridge, that due to the impact of the fall he sustained grievous injuries over left hand, head and also sustained contusion and abreactions all over his body. Immediately after the incident the person who were at the platform rushed to the complainant and taken to the District Hospital, Kollam along with Ext.P2 requisition issued by the Station Master of the Perinad railway station and given first aid at the district hospital. As the injury sustained by the complainant was very serious and grievous in nature he was referred to Medical College Hospital, Thiruvananthapuram on the same date. He was brought to the Medical College Hospital on the same day and admitted there and has undergone immediate operation on his left hand and place iron rod on that
hand and on the next day the complainant was again send back to the district hospital for further treatment. PW3 is the contractor under whom the complainant was working as on those days. He is a neighbor of the complainant as well. He is the eye witness to the incident that was taken at the Perinad Railway Station. He has also deposed in terms of the version of PW1 regarding the incident. The oral evidence of PW1 who is the injured and PW2 who is the eye witness and the person accompanied PW1 at the time of occurrence coupled with Ext.P1 to P3 document would establish the accident and also establish the injuries sustained on the body of PW1 during the accident. In fact the opposite parties have no dispute regarding the alleged accident. They only dispute the allegation of negligence and deficiency in service on the part of opposite parties.
According to the complainant the accident occurred solely due to the deficiency in service on the part of the opposite parties in maintaining the foot over bridge for the use of railway passengers. The opposite parties No.1 to 3 have totally denied the above allegation. According to them the accident occurred due to the unexpected breakage of concrete slab over the foot over bridge which probably caused due to the material failure of the slab. They would further content that the said foot over bridge was periodically inspected at various levels and maintaining the satisfactory condition without any defects in the safety aspects and hence there is no latches on the part of the railway authorities and that the accident occurred due to the reasons beyond the control of the railway authorities. However the material available on record would establish the case of the complainant that the accident was happened due to deficiency in service on the part of the opposite parties No.1 to 3. PW1 the injured and PW2 the eye witness for deposed to that effect. The above version of PW1 &2 stands corroborated by Ext.P8 FIR in Crime No.52/2012 registered by the Sub Inspector of Police Railway, Kollam on the basis of the FI statement lodged by PW1 while he was undergoing treatment at the hospital and Ext.P9 charge sheet laid down by the said S.I Railway Police Station, Kollam in the above crime and Ext.P10 judgment in the above case by which the learned CJM has found the accused (who is the 3rd opposite party in this case) guilty u/s 338 IPC by holding that the 3rd opposite party has caused grievous hurt to the complainant by not keeping railway foot over bridge properly and thereby he was acted in a rash and negligent manner so as to endanger human life for the personal safety of others and also convicted and sentenced accordingly. In view of the oral evidence of PW1&2 coupled with Ext.P1 intimation letter issued by the Station Master and P8 to P10 documents it is cristal clear that the concrete slab laid down on the railway foot over bridge at the Perinad Railway Station collapsed as it was not properly maintained by 3rd opposite party who is responsible for doing the same. Opposite party 1 being the Station Master and Opposite party No.2 being the Divisional Manager of the Southern Railway are vicariously liable for the act of the 3rd opposite party who is responsible for up keeping the railway foot over bridge in a safe manner without collapsing the same while the passengers walk over the said over bridge. The learned counsel for the complainant has argued that the principle of “repse-ipsa-loquitor” is applicable to the facts of this case. The foot over bridge or any concrete slab or any other part of the same is not expected to fallen down while the passengers are using the same. But in this case the concrete slab fitted on the foot over bridge collapsed and fallen down which resulted in the accident and the same itself tells that there is negligence on the part of the railway officials not keeping the foot over bridge which is intended to be used by the railway passengers in proper manner definitely amounts to deficiency in service on the part of the opposite parties. The point No.1 answered accordingly.
Point No.2&3
For avoiding repetition of discussion of materials these 2 points are considered together. The 1st relief sought for in the complaint is to award compensation and damages to the tune of Rs.5,00,000/-. The 2nd prayer is to refund Rs.75,000/- being the treatment expenses incurred by the complainant and final relief sought for is regarding costs of the proceedings. Even the opposite parties have no dispute regarding the incident and the injuries sustained by the complainant. The main dispute of the opposite parties is with regard to the C1 disability certificate issued by the Medical Board. According to the complainant he sustained very serious injuries to the left hand and all other body due to the incident he was originally brought to the District Hospital, Kollam and after first aid he was referred to Medical College Hospital, Thiruvananthapuram again he was sent back to District Hospital, Kollam after conducting operation and laying iron rod. However again he was referred to Medical College Hospital while undergoing treatment at the District Hospital and underwent treatment from 17.11.2012 to 23.11.2012 and thereafter he was again referred to District Hospital, Kollam and undergone treatment from 23.11.2012 to 11.12.2012. It is clear from the oral evidence of PW1 to 3 coupled with Ext.P3 to P6 Medical records that the complainant has undergoing impatient treatment at District Hospital and Medical College Hospital, Thiruvananthapuram at 53 days and even now he was undergoing outpatient treatment. Ext.P3 is the discharge card dated 15.11.12 issued by the District Hospital, Kollam. Ext.P4 is another discharge card dated 11.12.2012 issued by the District Hospital, Kollam wherein it is stated that the complainant has sustained fracture on his left hand and was referred to Medical College Hospital, Thiruvananthapuram. Ext.P5 is the discharge summary dated 23.11.12 issued by Dr.Arun Saravanan, Medical College Hospital, Thiruvananthapuram wherein it is noted that Compound Intra Articular Fracture(DER) was diagnosed forearm JESS done on the same day. It is further stated in Ext.P5 that JESS removes and ORIF with ELISST Plate with bone graft from Tibia done on 19.11.2012. The oral evidence of PW1 coupled with Ext.P3 to P6 records would establish that he has sustained serious fracture over his left hand and he has undergone JESS REMOVAL+ ORIF with ELISST PLATE+BONE GRAFTING on 19.11.2012 and was advised to review on 01.12.2012. PW1 was also advised to attend District Hospital, Kollam for further follow up action and also advised to take various medicines prescribed in Ext.P5 discharge summary.
The learned counsel for the opposite parties No.1&2 has vehemently opposed in marking Ext.C1 disability certificate on the ground that the doctor who issued the certificate has not been examined. However the document has been got marked through PW1 absolutely by ignoring the prayer of the learned counsel for the opposite parties to mark the same subject proof due to the following reasons. Ext.C1 certificate has been seen issued by the Chairman of the Medical Board consisting of 8 Members apart from the Chairman. The said Medical Board has been constituted as instructed by this Forum vide Order in IA 22/2015 dated 27.02.2015. It is stated in C1 disability certificate that the complainant has been subjected to examination by the medical board consisting of 8 members apart from chairman on 31.10.2015 and found that person with disability by raising of physical impairment due to Bilateral sensorineural hearing loss, Locomotor disability. It is clear from C1 certificate that the said certificate has been issued after accessing disability by 8 members who are the consultant in different specialties of the Medical College and stated that the disability noted on PW1 is permanent and 100% disability has been found. There is a presumption u/s 114(e) of the Indian Evidence Act to the effect that official acts have been done by the Chairman and Medical Board. But the presumption is revertible. In view of the fact that Ext.C1 certificate issued by duly constituted Medical Board consisting of the Deputy Superintendent, Causality, Assistant Professor Department of Orthopaedics, Assistant and additional Professors of various department of the Medical College Hospital, Thiruvananthapuram. They have also authenticated C1 certificate by putting their signature. There is no dispute with regard to the fact that the person Abhilash was examined by the Medical Board is not the complainant. It is also clear from the available materials that the Medical Board has been constituted and examined the complainant in discharge of the official duties of the chairman and members of the Medical Board. Hence it is the official act and by virtue of Section 114(e) of the Indian Evidence Act it is to be presumed that the said official act was regularly done by examining the patient and accessing the disability. If the opposite parties are having any dispute regarding the correctness of the disability the same has to be challenged by examining the Chairman of the board or the members of the medical board who signed on C1 certificate. But the opposite parties have not taken any action in this regard and not rebutted the presumption.
The finding of the medical board in Ext.C1 is that the complainant has sustained 100% disability due to the injuries sustained on his body and the disability is permanent in nature. The above finding probabilised by the oral evidence of PW1 to 3 which I may quote in their own language. PW1 has stated in paragraph 8 of the proof affidavit that F\n¡v A]-IS kabw 24 hbkv {]mb-ap-m-bn-cp-¶Xpw Rm³ ]qÀ® Btcm-K-y-hm\pw IpSpw-_-¯nsâ GI B{i-b-hp-am-bn-cp-¶p. Ct¸mÄ F\n¡v ]c-k-lmbw IqSmsX kz´w Imc-y-§Ä sN¿m³t]mepw Ign-bm¯ Ah-Ø-bn-em-Wv.
PW2 is none other than the mother of PW1. The evidence of this witness would show that during the accident Snbmsâ CS-Xp-I-¿psS AØn HSnªv FÃv shfn-bn h¶n-«p-ÅXpw Xmtg-bv¡pÅ hogvN-bn Ccp¼v I¼n-bn Xe-b-Sn-¨-Xns\ XpSÀ¶v Xebv¡v ]cn¡v ]än aIsâ tIÄhniàn ]qÀ®ambpw \jvS-s¸-«n-«p-ÅXpw IqSmsX Snbmsâ tZl-am-k-Iew Dchpw NXhpw kw`-hn-¨n-«p-Å-Xp-am-Wv.-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ. A]-I-S-k-abw aI\v 24 hbkv {]mbw Dm-bn-cp-¶Xpw ]qÀ® Btcm-K-y-hm\pw Fsâ IpSpw-_-¯nsâ GI B{i-bhpw Bbn-cp-¶p. þþ-þ-þ-þ-þ-þ-þ-þþ . Ct¸mÄ aI\v ]c-k-lmbw IqSmsX bm{X sN¿mt\m AX-ym-h-iy Imc-y-§Ä sN¿mt\m km[n-¡p-¶-X-Ã. PW3 is the contractor who provides employment to the complainant and also the person who is the witness of the accident. According to him CSXp ssI HSnªv FÃv ]pd-¯p-h¶p. icocw apgp-h\pw ]cp-¡p-IÄ Dm-bn-cp-¶p. Snbm\v HmÀ½ iàn \jvSs¸«p.-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þ-þþ ta¸-Sn-bm³ Fsâ sXmgn-emfn Bbn-cp-¶p. Znhkw 700/-þ cq] Iqen sImSp-¡p-am-bn-cp-¶p. BIvkn-Uân-\p-tijw tPmen-¡p-h-¶n-«n-Ã. ssI kzm[o\w CÃm-¯-Xp-sIm-mWv ]n¶oSv tPmen-¡p-h-cm-Xn-cp-¶-Xv.
Though PW1 to 3 has been subjected to severe cross examination nothing has been brought out to disbelieve the above version of PW1 which stands corroborated by Ext.P3 to P5, P7 to P10 documents and Ext.C1 disability certificate. In the circumstance we are inclined to believe and accept Ext.C1 disability certificate though the same has been proved through PW1 without examining the Chairman or any of the members who signed on the said certificate.
The learned counsel for the opposite parties has argued that the complainant has no case before Police or before the doctors who examined him conducted surgery and also before the doctor who attended the complainant at the District Hospital that he has lost his sound due to the accident.
In view of the materials available on record we find no force in the argument. It is true that in the medical records and police records except in C1 disability certificate there is no mention regarding the hearing loss suffered by the complainant as a result of the accident occurred in the year 2012. It is true that he has not made any complaint regarding hearing loss before any doctor or at the police station. But the medical board has noted sensorineural hearing loss which even according to the opposite party may cause due to any infections causing damage to cranial nerve or infection to nerves system etc. If that be so there is no chance of knowing that fact by the complainant while lodging Ext.P1 FI statement and when he was brought to hospital immediately after the accident and also before the doctors who treated him at medical college hospital immediately after the accident. But he has a specific case in the FI statement on the basis of which crime has been registered that due to the effect of fall from railway foot over bridge he sustained injuries and pain all over the body and has sustained grievous injury on his left hand below the forearm that he was subjected to operation and inserted iron rod. Ext.P5 discharge summary issued by the Medical College Hospital, Thiruvananthapuram where he was admitted on the same date of accident has noted that he has fallen down from 40 feet height on 20.10.2012 . Compound intra articular # DER was diagnosed for which forearm JESS done on the same day. In view of the above evidence of PW1 coupled with the injuries noted in the discharge summary of the Medical College Hospital it is cristal clear that the complainant had fallen from a height of 40 feet by touching his body and head on hard object like rail kept below the foot over bridge. Therefore there is every chance of sustaining internal injury on the head and ear drum which might have caused the hearing loss subsequently.
In the light of the materials available on record especially the oral evidence of PW1 to 3 we have no hesitation to hold that hearing loss and fracture sustained on the left forearm has been caused due to the impact of the fall as alleged in this case. It is also clear from the available materials that the complainant is unable to do any sort of job and he has sustained permanent privation of hearing of ears and pursuits permanent impairing of the power of his left hand and unable to follow his ordinary pursuits. Therefore he is entitled to get compensation for the injuries sustained and consequent discomfort and also entitled to get compensation for deficiency in service on the part of the opposite parties.
Now regarding the quantum of compensation to be awarded. It is clear from the available materials that the complainant after the incident is unable to do any sort of work and even unable to follow his ordinary pursuits. It is clear from the available materials that though the complainant has sustained grievous injuries and was admitted at the hospital for a pretty long period undergone treatment including operation installing iron rod, bone grafting etc. with the knowledge of the opposite parties, they have not provide any financial aid to the complainant as an interim relief. It is also brought out in evidence that on 27.11.2012 the complainant has sent a request directly to the Chief Claim Officer, Southern Railway, Chennai for financial aid for the treatment on serious injuries sustained by him. The request was turned down by the railway by advising the complainant to claim compensation through appropriate forum. The non payment of any interim relief for continuing treatment also amounts to deficiency in service on the part of the Southern Railway. It is clear from the available evidence that the complainant is a young man of 24 years. He was a coolie worker getting Rs.700/- per day. The complainant has claimed compensation for injury sustained and consequent impairing of hearing and loss of employment to the tune of Rs.5,00,000/- which according to the Forum is quite reasonable.
It is also brought out in evidence that the complainant has sustained pain and sufferings and heavy mental agony and he cannot perform his ordinary pursuit and due to the loss his earnings he could not maintain his aged mother and sister (who has been abandoned by husband) and her children. In view of the materials discussed above we are inclined to hold that the complainant is entitled to get the relief prayed for in the complaint.
In the result the complaint stands allowed directing the opposite parties No.1 to 3 to pay Rs.5,00,000/- as compensation to the complainant.
Opposite parties 1 to 3 are also directed to pay Rs.75,000/- as treatment expenses including expenses for transportation, bystanders expenses etc. and expenses covered Ext.P7 Medical bills.
The opposite parties No.1 to 3 are further directed to pay Rs.10,000/- as costs of the proceedings.
Opposite parties No.1 to 3 are directed to comply with the above direction within 45 days from the date of receipt of a copy of this order failing which the complainant is at liberty to recover Rs.5,75,000/- along with interest @ 9% p.a from the date of complaint till realization along with costs Rs.10,000/- jointly and severally from opposite parties No.1 to 3 and from the assets of the Southern Railway, Chennai.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 31st day of December 2019.
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses examined for the complainant:-
PW1:- Abhilash
PW2:-Chandrika@ Karthyayani
PW3:- Fransis
Documents marked for the complainant:-
Ext.P1:- Copy of railway ticket
Ext.P2 :- Requisition issued by the Station Master
Ext.P3:- Discharge card dated 15.11.2012
Ext.P4:- Discharge card dated 11.12.2012
Ext.P5:-Discharge summary
Ext.P6:- Copy of discharge summary
Ext.P7 Series:- Hospital bills
Ext.P8:- FIR
Ext.P9:- Copy of final report
Ext.P10:- Judgment
Ext.C1:- Disability certificate
Witnesses examined for the opposite party:-Nil
Documents marked for the opposite party:- Nil
E.M.Muhammed Ibrahim:Sd/-
S.Sandhya Rani:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent