PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant is working as a Welder and earning Rs.5,000/- p.m. He is only earning member in his family. The Complainant was holding Second Class Railway Season Ticket No.06691188 and Railway Identity Card bearing No.424025 for traveling between Govandi Railway Station to Bandra Railway Station for the period form 04/08/08 to 03/09/08.
2) On 05/08/08 at about 11.30 hours the Complainant was waiting for train at Govandi Railway Station at platform no.2. At that time railway roof shed collapsed and thereby the Complainant was grievously injured at Govandi Railway Station platform. At the time of accident the Complainant was bonafide passenger.
3) After aforesaid accident the Complainant was immediately removed to Shatabdi Hospital and admitted in ‘E’ ward. Injuries sustained by the Complainant were serious in nature therefore the Complainant was immediately transferred to Dr. Babasaheb Ambedkar Memorial Hospital for further treatment. He was admitted in the Dr. Babasaheb Ambedkar Memorial Hospital till 06/09/08. According to the Complainant, injuries sustained by him were grievous and his condition was not improved even then on 06/09/08 Railway Administration forcefully discharged him from Dr. Babasaheb Ambedkar Memorial Hospital. Thereafter, the Complainant has spent near about 1,50,000/- for his treatment. Due to the said accident the Complainant is disabled form doing any work which he was capable of doing at the time of accident. In the aforesaid accident the Complainant sustained following injuries.
1) Fracture of Right shoulder.
2) Fracture of Redius of Left hand.
3) Fracture of Maxilla.
4) Fracture of Nasal Bone.
5) Fracture of Glabella.
6) Fracture of Zygomatic Bone.
7) Fracture of Frontal Bone.
8) Abrasion and Other injuries as per medical paper on all over body.
4) It is submitted by the Complainant that aforesaid accident took place due to the gross negligence on the part of Opposite Party –Central Railway Administration and it amounts to deficiency in service on the part of Opposite Party. The Complainant had sent legal notice to the General Manager, Central Railway, C.S.T., Mumbai, demanding compensation but there was no reply to the notice. Therefore, the Complainant has filed this complaint. The Complainant has requested to direct Opposite Party to pay to the Complainant an amount of Rs.10 Lacs or more sum as compensation with interest @ 18 % from the date of accident. Further, he has prayed for any other relief as may deem fit and proper.
5) Alongwith list of documents the Complainant has produced copy of police report, copy of his seasonal railway pass, railway identity card, copy of medical case papers of Shatabdi Hospital as well as Dr. Babasaheb Ambedkar Memorial Hospital, copy of notice sent to the Opposite Party, copy of ration card, etc. The Complainant has filed affidavit of evidence.
6) Opposite Party has filed written statement and thereby resisted claim of the Complainant. According to the Opposite Party’s, Indian Railways insures all bonafide railway passengers against death or injury in train accidents as defined under Sec.124 of the Railway Act, 1989. Similarly, every railway passenger or a person holding platform ticket is also insured against death or injury on account of “untoward incident” as defined under Sec.123(c) of the Act. Untoward Incident also includes terrorist act, violent act, robbery, dacoity, rioting, shoot out, arson by any person in or on any train carrying passengers or in the waiting hall, cloak room, reservation or booking office or on any platform or in any other place within the precincts of a railway station or accidental falling of any passenger from a train carrying passengers.
The passengers who met with an accident, as defined under Sec. 124 of the Railway Act, 1989 or become victim of untoward incidents as defined under Sec.123 (c) of the Railway Act, 1989 are entitled to compensation for loss of life and injuries of their involvement in a railway accident or untoward incident.
7) It is submitted by the Opposite Party that application for compensation under Sec.124 or 124(A) of the Railway Act, 1989 is required to be file before the concern Railway Claim Tribunal, having territorial jurisdiction. The scale of compensation is to be decided as per Railway Accident and untoward incidents (compensation) Rules, 1990. The Opposite Party has reproduced schedule of compensation payable for death and injuries stated in the aforesaid rules, 1990 in their written statement.
8) It is in written statement para no.9 Opposite Party has admitted that the Complainant got injured of untoward incident at Govandi Railway Station on 05/08/2008. After accident the Complainant was paid ex-gratia immediately. The Complainant was also immediately removed to the hospital. The Opposite Party has denied allegations that the Complainant was forcefully discharged from the hospital. It is denied that the Complainant was required to take further treatment after discharge from the Dr. Babasaheb Ambedkar Memorial Hospital.
9) It is submitted that the Complainant may be entitled to any compensation under Railway Claims Tribunals Act, 1987 and not under Consumer Protection Act, 1986 as claimed by the Complainant. As per Sec.13 and 15 of Railway Claims Tribunal Act, 1987, the Railway Claim Tribunal has exclusive jurisdiction to try and entertain the claim as regards to the death/injury sustained to the bonafide passenger in untoward incident. Therefore, according to the Opposite Party, present complaint deserves to be dismissed for want of jurisdiction.
10) The Complainant has produced affidavit of evidence and original medical case papers, railway identity card and his season pass, memo of Station Master of Govandi Railway Station and disability certificate, dtd.08/04/2011 issued by Dr. Naresh Khanna
11) Heard Ld.Advocate Mr. D.T. Ajagekar for the Complainant and Ld.Advocate Mr. A.N. Samant for the Opposite Party.
12) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the present complaint is maintainable under the Consumer Protection Act, 1986 ?
Findings : Yes.
Point No.2 : Complainant has proved deficiency in service on the part of Opposite Parties ?
Findings : Yes.
Point No.3 : Whether the Complainant is entitled to compensation as claimed ?
Findings : As per final order.
Reasons :-
Point No.1 :- It is submitted on behalf of Opposite Party that as per Sec.13 and 15 of the Railway Claims Tribunal Act, 1987. The Railway Claim Tribunal has exclusive jurisdiction to entertain and try the claim as regards to the death/injuries sustained to the bonafide passenger in a untoward incidents. It is submitted that in view of aforesaid provisions, the Consumer Forum has no jurisdiction to try this complaint under the provisions of Consumer Protection Act.
It is submitted on behalf of the Complainant that remedy under Sec.3 of the Consumer Protection Act, 1986 provided is alternate remedy and considering the nature of accident this Consumer Forum has jurisdiction to entertain and try and decide this complaint. In support of his contention, Ld.Advocate Ajagekar has relied upon decision of the Hon’ble National Commission, New Delhi, in Revision Petition No.864 of 2006, in Smt. Vinaya Vilas Sawant V/s. Union of India, decided on 29/11/2007. Facts of the said case recited in the aforesaid judgement of the Hon’ble National Commission are as under –
“It is the say of the Complainant that she, alongwith her husband, Mr. Vilas Sawant, met with an accident on 28/09/1992 when they were returning home form 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 FOB to reach Jogeshwari (East), suddenly one slab of the said railway FOB collapsed. As a result of this collapse, the Complainant as well as her husband, alongwith several other passengers, fell on the railway track and sustained injuries. At the relevant time, it was raining heavily, which made matters worse. Some passengers even died due to the collapse of The FOB.”
In the aforesaid case the Hon’ble National Commission has discussed various provisions of Sec.123(C), 124, 124(A), 128 and Sec.13 of the Railway Claim Tribunal Act, 1987 and other relevant provision and have observed that Sec.3 of the Consumer Protection Act, 1986 specifically provides that the provision of the Act are in addition to and not in derogation to any other law for the time being 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.”
Alongwith complaint the Complainant has produced copy of Second Class Railway Ticket No.06691188 and Railway Identity Card for travelling between Govandi Railway Station to Bandra Railway Station for the period 04/08/08 to 03/09/08. The Opposite Party has not disputed the aforesaid fact.
In view of the aforesaid judgement of the Hon’ble National Commission and considering the facts of this case, present complaint is maintainable under the Consumer Protection Act, 1986. Therefore, we answer point no.1 in the affirmative.
Point No.2 :- As per the Complainant, on 05/08/08 at 11.30 hours the Complainant waiting for train at Govandi Railway Station at platform no.2. At that time railway roof shed collapsed and he was seriously injured at Govandi Railway Station platform. Opposite Party in their written statement had clearly admitted that the Complainant sustained injuries on aforesaid accident at Govandi Railway Station on 05/08/2008. It is not disputed that the Complainant was a bonafide passenger. According to the Opposite Party, ex-gratia was paid to the Complainant immediately and he was immediately removed to Shatabdi Hospital and admitted in ‘E’ ward. As injuries sustained by the Complainant were serious nature, the Complainant was immediately transferred to Dr. Babasaheb Ambedkar Memorial Hospital for further treatment. According to the Complainant, in the said accident he has sustained following injuries
1) Fracture of Right shoulder.
2) Fracture of Redius of Left hand.
3) Fracture of Maxilla.
4) Fracture of Nasal Bone.
5) Fracture of Glabella.
6) Fracture of Zygomatic Bone.
7) Fracture of Frontal Bone.
8) Abrasion and Other injuries as per medical paper on all over body.
As mentioned above, in the aforesaid judgement, the Hon’ble National Commission has held that railway is bound to provide necessary services to the bonafide passengers which include maintenance of railway station, platform as well as over bridge, etc. In this case when the Complainant was waiting for train at Govandi Railway Station, platform no.2, shade collapsed and thereby the Complainant sustained injuries. It was submitted on behalf of Opposite Party that it was not necessary for the Complainant to go to platform no.2 where repairing work was going on. The incident took place at about 11.30 hours. Panchnama of place of accident prepared by the police is on the record. The Complainant has produced memo issued by the Station Master. In the aforesaid memo dtd.05/05/08, Station Master of Govandi Railway Station has stated that “one male passenger by name Zahir Latif, aged about 45 years injured on P.F. No.(2) MNKD end while working (IOW Staff) on shed & shed fallen down.” It appears that at that time of accident some repair work at the end of the platform was going on. It is duty of the railway administration to take necessary precaution to protect bonafide passenger form untoward incident. There is nothing on record to show that railway had taken any precautionary measures, such as, erection of barricade or displaying of caution board where the repair work was going on to prevent passenger form entering in the area. Absolutely there is not evidence to show that any such precautionary measures were taken by the Railway. Some portion of the railway roof collapsed and caused injuries to the bonafide passengers including the Complainant. It amounts to deficiency in service on the part of Opposite Party. Hence, we answer point no.2 in the affirmative.
Point No.3 :- The Complainant has claimed compensation of Rs.10 Lacs or more with interest @ 18 % p.a., cost of this proceeding and any other relief that may be deem fit and proper. Ld.Advocate for the Complainant has submitted that due to the negligence and deficiency in service on the part of Opposite Party on 05/08/08, the Complainant was severally injured on the platform of Govandi Railway Station. In the said accident the Complainant sustained 1) Fracture of Right shoulder, 2) Fracture of Redius of Left hand, 3) Fracture of Maxilla, 4) Fracture of Nasal Bone, 5) Fracture of Glabella, 6) Fracture of Zygomatic Bone, 7) Fracture of Frontal Bone, 8) Abrasion and Other injuries as per medical paper on all over body.
In support of his contention Ld.Advocate has submitted medical case papers and discharge summery of Sion Hospital. It is submitted that initially the Complainant was admitted in the Shatabdi Hospital however, it was noticed that the Complainant sustained severe grievous injuries, the Complainant was admitted in Dr. Babasaheb Ambedkar Memorial Hospital on the same day i.e. on 05/08/08. It is alleged that even though the Complainant was not recovered he was discharged forcefully from Dr. Babasaheb Ambedkar Memorial Hospital and therefore, the Complainant went to Sion Hospital. He has referred to discharge summery of Sion Hospital. In the discharge summery of Sion Hospital, it is stated that the Complainant was admitted in Sion Hospital on 09/08/08 and discharge on 12/08/08. In the discharge summery in the findings it is recorded that in all 7 fractures (described in the complaint) were noticed. According to the Complainant, due to the impact of jaw, the Complainant’s teeth were dislocated. There was disfiguration of forehead. The Complainant has referred to disability certificate dtd.08/04/2011 issued by Dr. Naresh Khanna, M.D., Orthopaedic, in which Dr. has assessed partial disability of the Complainant to the extent of 58 %. It is submitted that now the Complainant is disable to do the work which he was able to do prior to the accident. The Complainant is only earning member of his family and due to the accident the Complainant did not resume his previous job and thereby the Complainant and his family members have suffered lot and therefore, on this ground the Complainant’s Advocate has requested to award compensation of Rs.10,00,000/- with interest @ 18 % p.a..
Ld.Advocate for the Opposite Party has submitted that the Complainant has claimed exorbitant compensation for which he is not entitled. It is pointed out that in Railway Accident and Untoward Incident (Compensation) Rules, 1990, schedule of compensation payable on death and injuries is given. According to the Ld.Advocate for the Opposite Party, the Complainant cannot claim compensation higher than the compensation provided by the statutory provision. For fracture of major bone femur tibia of one limb compensation provided is of Rs.40,000/-. According to the Ld.Advocate for the Complainant beside fracture of right shoulder and fracture of Glabella, the Complainant has suffered other injuries mentioned in the medical certificate. Due to the accident till 06/09/08 the Complainant was admitted in Dr. Babasaheb Ambedkar Memorial Hospital. On 06/09/2008 the Railway Administration forcefully discharged the Complainant form the hospital and thereby the Complainant took further medical treatment for which he has incurred expenses of Rs.1,50,000/-.
It appears from the medical evidence on record that on 05/08/08 at the time at about 11.30 hours, the Complainant was waiting for train at Govandi Railway Station on Platform No.2, that time railway roof shed collapsed on the Complainant and due to this accident the Complainant suffered grievous injuries as follows –
1) Fracture of Right shoulder.
2) Fracture of Redius of Left hand.
3) Fracture of Maxilla.
4) Fracture of Nasal Bone.
5) Fracture of Glabella.
6) Fracture of Zygomatic Bone.
7) Fracture of Frontal Bone.
The Complainant also suffered Abrasion and Other injuries on all over body as stated in the medical case papers. The schedule of compensation for death, injuries are given under Railway Accident and Untoward Incident (Compensation) Rules, 1990. According to the Ld.Advocate for the Opposite Party, compensation provided for fracture of major bone humerus radius ulna of one limb is Rs.32,000/-, fracture of the major bone femur tibia of one limb is Rs.40,000/-, fracture of major bone humerus radius both limbs Rs.60,000/-. In the instance case, the Complainant has suffered in all seven fractures on various parts of body. Fracture of Frontal Bone has caused disfigurement of the face. Considering nature of fractures the period for which the Complainant required medical treatment and for that mental agony and harassment as well as disability and disfigurement suffered by the Complainant we think it just to direct Opposite Party to pay to the Complainant compensation of Rs.2,50,000/- with interest @ 9 % p.a. from the date of accident i.e. from 05/08/08 till realization of entire amount to the Complainant. Further we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.2,000/- as cost of this proceeding. Hence, we answer point no.3 accordingly.
For the reasons discussed above, we partly allow the complaint and pass following order -
O R D E R
i.Complaint No.109/2009 is partly allowed.
ii.Opposite Party shall pay an amount of Rs.2,50,000/- (Rs. Two Lacs Fifty Thousand Only) to the Complainant
with interest @ 9 % p.a. on aforesaid amount from 05/08/2008 till realization of entire amount to
the Complainant.
iii.Opposite Party shall pay an amount of Rs.2,000/- (Rs. Two Thousand Only) to the Complainant as cost of this
proceeding.
iv Opposite Party shall comply with the aforesaid order within period of one month from the date of receipt of
this order.
v. Certified copies of this order be furnished to the parties.
