PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as the Opposite Party is negligent in providing the safety to its passengers.
2) The facts of this case as mentioned by the Complainant are that, the Complainant’s husband Mr. Shripad Sabnis was travelling in a local train from Kalwa (Thane District) to Dadar Railway Station on 29/11/08 at 4.30 p.m. when the local train reached at Nahur Railway Station an iron roof of platform fell and hit Mr.Shripad Sabnis and he was grievously injured and thereafter succumbed to the injuries while under treatment and died in the hospital. The deceased was travelling with a valid Railway Pass and was bonafide passenger of the Opposite Party. The cause of death given in the post mortem report is “shock due to multiple injuries”.
3) The Complainant has further stated that the deceased was the only earning member of her family. He was doing the business of readymade garments at Ranade Road, Dadar (W) and was earning Rs.7,000/- per month and the Complainant is dependent on the deceased’s income only.
4) It is alleged by the Complainant that due to the negligence of the Opposite Party the roof/shade collapsed on Mr. Shripad Sabnis. This is a deficiency in service on the part of Railway (Opposite Party) and Railway is liable for the compensation under the Consumer Protection Act.
5) It is further stated that, the Complainant sent a legal notice to the General Manager, Central Railways, C.S.T. Mumbai but he did not respond to the said notice and did not pay compensation.
6) The Complainant has claimed Rs.10 Lacs from the Opposite Party on account of loss of income of the deceased, and for mental agony caused to the Complainant, medical expenses, and conveyance with interest form the date of accident (29/11/08).
7) The Complainant has attached the xerox copies of the following documents alongwith the complaint. Station Manager’s memo regarding accident dtd.29/11/08, Report of Police Head Constable, Kurla Railway Police Station, Inquest Panchanama dtd.29/11/08, Railway Season Ticket with identity card of the deceased, Letter of Hospital dtd.29/11/08, Post Mortem Report, Ration Card, Statement of the Complainant before Kurla Railway Police Station dtd.30/11/08, News paper cutting regarding the accident, Notice to the Opposite Party dtd.03/12/09 from the Advocate of the Complainant to Opposite Party.
8) The complaint was admitted and notice was served on the Opposite Party who appeared before this Forum and filed its written statement wherein the Opposite Party has stated that the bonafide railway passengers are insured against death or injury in train accident and they are entitled for compensation for loss of life and injuries and the dependents of the deceased as defined in Sec.123(b) of the Railways Act or injured passenger or his authorized agent may claim the compensation.
9) The Opposite Party has further stated the compensation is decided as per the Accident and Untoward incidents (compensation) Rules, 1990, a statutory provision wherein compensation for death or 100 % permanent disability is Rs.4 Lacs etc.
10) It is further submitted by the Opposite Party that immediately after the accident or Untowards incident has taken place, exgratia at the rate of Rs.15,000/- was given to the dependent of deceased passenger. Rs.5,000/- to the grievously hurt individual and Rs.500/- to simple hurt individual.
11) It is further stated by the Opposite Party that limit for filing the claims is one year from the date of accident. The Complainant is entitled to compensation under Railway Claims Tribunal Act, 1987 and not under the Consumer Protection Act, 1986 as claimed by the Complainant. As per Sec.13 and 15 of the Railway Claims Tribunal Act, 1987, the Railway Claims Tribunal has exclusive jurisdiction to try and entertain the claim. Finally it is prayed by the Opposite Party that the complaint be dismissed for want of jurisdiction.
12) Thereafter the Complainant filed her affidavit of evidence wherein she reiterated the facts mentioned in her complaint. The Opposite Party filed the written argument wherein it vehemently argued that the Consumer Forum has no jurisdiction to try & entertain the complaint in view of the provisions of Sec.15 of Railway Claims Tribunal Act, 1987. However, in this written argument the Opposite Party has admitted that the deceased husband of the Complainant died while travelling by a local train. The Opposite Party has relied upon the judgement of the Hon’ble State Commission, Maharashtra in Revision Application No.121/05 to 124/05.
13) We heard the Ld.Advocates of both the parties and perused the papers filed by them and our findings are as follows –
In this complaint it is stated that on 29/11/08 the deceased was travelling from Kalwa to Dadar in a Railway local, and when the train reached at Nahur Station, an iron roof of the platform fell on Mr. Shripad, the deceased and during this incident he died. However, when we perused the papers produced by the Complainant such as the, station Manager’s, report, police constable’s report and doctor’s report we found that the facts of the accident were different. As per these papers, the fact that the deceased Mr. Shripad was travelling in a local train on 29/11/08 from Kalwa to Dadar but when the train left Nahur Railway Station adjoining iron sheet kept alongside the railway tract, abruptly flew from the place and hit the passengers standing in the door of the local train. In this incident the deceased Shripad was injured seriously as the iron sheet hit hm. Though there is a discrepancy in the complaint and other documents it is the fact that the deceased was a bonafied passenger of the Opposite Party and was travelling in the local train from Kalwa to Dadar and during this travelling he died due to injuries sustained by him due to the iron sheet which hit him on his body.
14) The Opposite Party has also not taken any objection regarding this discrepancy in its written statement. On the contrary it was admitted by the Opposite Party is the written argument that the deceased husband died while travelling the local train. The only objection of the Opposite Party is that this Forum has no jurisdiction to try and entertain this complaint as there is a special provision under Railways Act to compensate the victims of Railway accident and the victims who sustain death and injury in any untowards incident. The Railway Claim Tribunal is the Authority under Railway Claim Tribunal Act, 1987 to award appropriate compensation to the victims of such accidents.
15) It is also submitted by the Opposite Party that the amount of compensation to be given to the victims as per the scale given, as per Railway accident and untowards incidents (compensation) Rules 1990). The Opposite Party has produced the scale of Compensation and as per this scale the legal heirs or the representative on the behalf of deceased gets 4 Lacs compensation for a death caused in the Railway accident.
16) At the same time the Ld.Advocate for the Complainant has submitted that a remedy under Sec.3 of the Consumer Protection Act, 1986 (C.P.A. for brevity) is alternate remedy. We agree with this submission of the Ld.Advocate for the Complainant as it is clearly stipulated in Sec.3 of the C.P.A., 1986, that, “the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”
In support of the contention of the Ld.Advocate for the Complainant he has relied on the Hon’ble National Commission’s order in Revision Petition No.864/2006 in Smt. Vinaya Vilas Sawant V/s. Union of India, decided on 29/11/07. The facts of this case are as follows –
“The Complainant’s husband in this case also met with an accident on 28/09/092 when they (wife and deceased husband) were returning home from Ghatkopar to Jogeshwari via Dadar by train. After getting down from the train at Jogeshwari Station at about 8.30 p.m., when they were passing over the Railway F.O.B. to reach Jogeshwari (E) suddenly one slab of Railway FOB collapsed and both of them alongwith others fell on the Railway track and sustained injuries. Some of the passengers died due to this collapse of FOB. In this case the Hon’ble National Commission has discussed various provisions of Sec.5 123(c), 124, 124A, 128 & Sec.13 of the Railway Claim Tribunal Act, 1987 and observed that Sec.3 of the Consumer Protection Act, 1986 specifically provides that the provision of the Act (C.P.A.) are in addition to and not in derogation of any other law for the time being in force. The Hon’ble National Commission has held that “A railway passenger, who purchases a ticket for travelling by the railway, would undoubtedly be a consumer because he pays for availing of the services to be rendered by the railways. That person would have right to ingress to the train as well as egress from the train. For boarding and alighting the train, he is required to pass through the railway premises, i.e. the railway platform, over bridge, etc. In that set of circumstances, the services, which are required to be rendered by the Railways, would include maintenance of railway station, platform, as well as over-bridge, etc.” This complaint was decided in favour of the Complainant. Therefore, in view of the above judgement, the complaint in hand is also maintainable before this Forum.
17) In the instant case the deceased shripad was having a valid season ticket to travel from Kalwa to Chinchpokli and he was a bonafied passenger of the Opposite Party travelling in the fast local train on 4th tract. There was a work in progress parallel to the 4th track i.e. work of track 5 and 6. Therefore, the Railway Authorities have put iron sheets alongwith and indjescent to 4th fast track of the Railway. It appears from the circumstances of the case that one of the iron sheet put along the track, flew from its place and hit the running local train and consequently hit the passengers including the deceased husband of the Complainant who were standing in the local train. It caused serious injuries to his femur and tibia (fracture) about more than one foot long injury was described in the inquest panchanama. This circumstance certainly shows that the Opposite Party has not taken proper precautions to fix the iron sheet at proper place. It appears that the iron sheet which was kept alongside the track was kept loose and that is why it flew from its place and hit the moving train causing serious injuries to the passengers standing inside the local train including the deceased M.Shripad Sabnis.
18) It is also transpired from the papers that the accident took place at about at about 4.30 p.m. and the injured Mr. Shripad was taken to Dr. Babasaheb Ambedkar Hospital at 6.30 p.m. It took about 2 hours to take the injured to the hospital. During this period he was without any medical treatment. Under such seriously injured cases particularly where there are wounds and blood exudes from the wounds, blood loss should be prevented by giving 1st aid. During these golden hours of treatment immediate medical aid is very important to save the human life. In this regard also Opposite Party has failed to provide any 1st aid immediately after the accident. As stated above the deceased was without any treatment at least for long two hours. This certainly shows that the Opposite Party is deficient in providing the safety to its passengers including the deceased Mr.Shripad and in providing immediate 1st aid to the said Mr.Shripad. Because of the above deficiency in service on the part of Opposite Party, Mr. Shripad Subnis lost his life.
19) Regarding the compensation to be given to the Complainant, the Complainant has claimed Rs.10 Lacs with interest @ 18 % and any other relief that may be proper and justifiable. However, as per the scale given by the Opposite Party the maximum compensation that can be awarded in case of Railway accident death case is Rs.4 Lacs only. Therefore, at the most we can award compensation of Rs.4 Lacs for the death of the Mr.Shripad Subnis who died in the Railway accident on 29/11/2008.
20) In this case the Opposite Party has challenged only the jurisdiction of this Forum and it is also averred that, as per the scale given in the Railway Claim Tribunal Rules, 1990, the compensation for death is 4 Lacs and it should be given as per this scale. In this connection it is our candid view that a life cannot be compensated in terms of money. Even in present days of inflationary crisis, the amount of 4 Lacs mentioned in the Railway Claim Tribunal Rule, 1990, are really nothing for a widow of 63 years old person for her future whole life. Again this amount of Rs.4 Lacs as mentioned in the Rule 5 has been decided in the year 1990. Today we are living in 2011. Still the amount stipulated in the Railway Claim Tribunal Rules, 1990 cannot be overlooked as it is a statutory provision. Therefore, in view of the above observations & statutory provision mentioned in the Railway Claim Tribunal Rules, 1990, we pass the following order -
O R D E R
i.Complaint No.206/2010 is partly allowed.
ii.Opposite Party is directed to pay a compensation of Rs.4,00,000/- (Rs. Four Lacs Only) to the Complainant for
deficiency in service by not providing safety to the husband of the Complainant who was its bonafide
passenger travelling in its local train, alongwith with interest @ 12 % p.a. on aforesaid amount form 29/11/2008
till realization of entire amount to the Complainant.
iii.Opposite Party is also directed to pay an amount of Rs.5,000/- (Rs. Five Thousand Only) to the Complainant
as cost of this proceeding.
iv Opposite Party is directed to comply with the aforesaid order within 30 days from the receipt of this order.
v. Certified copies of this order be furnished to the parties.
