PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant is working as a nurse at Ladies Hostel and rehabilitation Centre of Government of Maharashtra at Devnar – Mumbai – 400 088 and earning Rs.11,000/- p.m. The Complainant was holding Second Class Railway Season Ticket No.59597977 and Railway Identity Card bearing No.451538 for traveling between Shahad Railway Station to Mankhurd Railway Station for the period form 16/06/08 to 15/09/08.
2) on 05/08/08 at about 11.30 hours the Complainant got down 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 removed to Dr. Babasaheb Ambedkar Hospital for treatment where she was admitted from 05/08/08 to 20/08/08. The Complainant had sustained injuries of grievous nature and so she was required more treatment in the hospital, but on 20/08/08 Railway Administration forcefully discharged the Complainant from the hospital. Thereafter, the Complainant has spent near about 1,00,000/- for her treatment. Due to the said accident the Complainant is disabled form doing any work which is was capable of doing at the time of accident. The disability of the Complainant is needed to be assessed. The Complainant is still under treatment as outdoor patient.
4) It is submitted that due to negligence on the part of railway said roof of railway shade was collapsed and the Complainant sustained following injuries.
1) Fracture of Right ankle.
2) Nalleous tow pieces.
3) Abrasion and other injuries as per medical paper on all over body.
5) According to the Complainant, aforesaid incident took place due to the gross negligence on the part of Opposite Party and it also amounts to deficiency in service on the part of Opposite Party. The Complainant had sent legal notice to the General Manager of Central Railway, C.S.T. and demanded compensation. But there was no reply form the Opposite Party. Therefore, the Complainant has filed this complaint before this Forum.
6) The Complainant has claimed compensation of Rs.5 Lacs on account of grievous and other injuries sustained by her in the said accident, mental agony, medical expenses, loss of income, etc. The Complainant has prayed for interest @ 18 % on the aforesaid amount of compensation and any other relief as may deem fit and proper.
7) Alongwith list of documents the Complainant has produced copy of ration card. The Complainant has filed affidavit of evidence.
8) 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.
9) 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.
10) It is in written statement para no.9 Opposite Party has admitted that the Complainant got injured of untoward incident at Govandi Station on 05/08/08. 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 Hospital.
11) 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.
12) Heard Ld.Advocate Mr. D.T. Ajagekar for the Complainant and Ld.Advocate Mr. A.N. Samant for the Opposite Party.
13) 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 and entrain 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 and 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.59597977 and Railway Identity Card for travelling between Shahad Railway Station to Mankhurd Railway Station for the period 16/08/08 to 15/09/08. The Opposite Party has not disputed the aforesaid fact.
In view of the aforesaid judgement of the Hon’ble National Commission, 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 got down at Govandi Railway Station at platform no.2. At that time railway roof shed collapse and she was grievously injured at Govandi Railway Station platform. Opposite Party in their written statement have 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 she was immediately removed to Dr. Babasaheb Ambedkar Hospital. According to the Complainant, in the said accident she has sustained following injuries –
1) Fracture of Right ankle.
2) Nalleous tow pieces.
3) 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 got down 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 under platform no.2 where repairing work is 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 female passenger by name Manjula, aged about 56 years injured on P.F. No.(I) end while working (IOW Staff) on the P.F.No.(I) roof. roof fallen down hence, injured.” 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 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.5 Lacs with interest @ 18 % p.a. and any other relief that may be deem fit and proper. Ld.Advocate for the Complainant has submitted that during the relevant period the Complainant was serving as a nurse at Ladies Hostel and rehabilitation Centre of Government of Maharashtra at Devnar – Mumbai – 88, and earning Rs.11,000/- p.m. In the accident the Complainant suffered 1) Fracture of Right ankle and other injuries mentioned in the medical case papers. The Complainant has produced medical case papers. It appears form the discharge papers of Dr. Babasaheb Ambedkar Hospital that the Complainant was admitted on 08/05/08 and was discharged on 20/08/08. The Complainant had suffered fracture of right ankle and other injuries due to fall of portion of roof of railway shed. She was treated in the said hospital and at the time of discharge she was advised to take medicines for 15 days.
Ld.Advocate for the Opposite Party has submitted that the Complainant has claimed exorbitant compensation for which she is not entitled. It is pointed out that as per 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 ankle, the Complainant has suffered other injuries mentioned in the medical certificate. Due to the accident form 05/08/08 to 20/08/08 the Complainant was admitted in Dr. Babasaheb Ambedkar Hospital. On 20/08/08 the Railway Administration forcefully discharged the Complainant form the hospital and thereby the Complainant took further medical treatment for which she has incurred expenses of Rs.1 Lac. The Complainant has not produced another medical case papers or medical certificate to support her contention that after discharge she took medical treatment at other hospital or clinic. Further, she has not adduced any evidence regarding the expenses incurred for medical treatment. According to the Complainant’s Advocate, due to accident the Complainant could not join her duty for period of 6 months. The Complainant had not produced certificate from her office to the effect that she was absent form duties for period of 6 months. However, it appears form the evidence on record that the Complainant was indoor patient in Dr. Babasaheb Ambedkar Hospital from 05/08/08 to 20/08/08. The Complainant’s advocate has requested to award adequate compensation for mental agony and inconvenience caused to Complainant. Considering the facts and circumstances of the case, we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.60,000/- with interest @ 9 % p.a. from the date of accident and Rs.2, 000/- towards 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.108/2009 is partly allowed.
ii.Opposite Party is directed to pay an amount of Rs.60,000/- (Rs. Sixty Thousand Only) to the Complainant with
interest @ 9 % p.a. on aforesaid amount form 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.
