BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.433 of 2015
Date of Instt. 01.10.2015
Date of Decision:25.01.2017
1. Jatinder Saxena Son of Kanwar Krishan Saxena, resident of 177 Municipal Colony, Pathankot, Tehsil and District Pathankot.
2. Neha Daughter of Sh. Jatinder Saxena,
3. Sahil Son of Sh.Jatinder Saxena (Minor) through his Father and Natural Guardian, Jatinder Saxena, resident of 177, Municipal Colony, Pathankot, Tehsil and District Pathankot.
..........Complainants
Versus
1. Union of India, through the General Manager, Northern Railways, Baroda House, New Delhi.
2. Northern Railways, through its General Manager, Northern Railways, Baroda House, New Delhi.
3. Station Superintendent, Northern Railway, Railway Station Jalandhar Cantt.
4. Station Superintendent, Northern Railway, Railway Station Pathankot.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh.Parminder Sharma (Member)
Present: Sh. KR Saini, Adv. Counsel for the complainant.
Sh. SKS Chhabra, Adv and Sh. JKS Chhabra, Adv. Counsel for Opposite Parties.
Order
Karnail Singh (President)
1. The instant complaint filed by complainant, wherein alleged that the complainant No.3 is minor and as such he cannot pursue the present complaint personally. The present complaint is being filed by the complainant No.1 for himself as well as on behalf of the complainant No.3.
2. That Late Smt. Meenu Saxena was legally wedded wife of the complainant Jatinder Saxena and the complainant Neha aged 22 years and Sahil 14 years are daughter and son, who were born out of the wedlock who were dependent on Meenu who was residing at Pathankot and running a Boutique, under the name and style Neha Boutique, 177 Municipal Colony, Pathankot. The complainants accompanied by late Smt. Meenu boarded Shalimar Express 4645 accompanied by five more persons who are relatives namely Anil Kumar, Deepak, Raju, Subhash, they are all returning after wedding of Upasana eldest daughter of the complainants. They came to Jalandhar where they changed their train and boarded Shalimar Express 4645 on 27.01.2011 at about 1:15 AM from Jalandhar to Pathankot after purchasing the proper tickets in the General Compartment. However, one of the co-passenger Anil Kumar Son of Shri Mohan Lal was handicapped on account of the injuries suffered in his right leg which was under bandage on account of surgery and in order to help him and as an attendant of handicapped person, the TT concerned advised Anil Kumar and Meenu to sit in handicapped compartment, when the train started from Jalandhar Cantt, Meenu was sitting on the lower berth and one other passenger was sitting in another seat on opposite side of Meenu just then all of sudden upper berth became loose and fell on Smt. Meenu and hit her cervical region on the back of the neck, the other passenger sitting on the top falling on it as a result Meenu suffered injuries in the back pain, it was later on found that her back bone was badly fractured however, since the injury was fresh and it was thought that the pain would sub side as such they did not stop the train immediately and the train kept on going, however, when they reached Dasuya Shahan by that time, Jatinder Saxena complainant who and also come to know about the accident and come into the compartment of Meenu in order to help her and he arranged for stretcher and tuasmant dasuya Railway Station on which Meenu was taken to Chiktsa Hospital Pathankot, there doctors attended on her and by about 2:00 PM on 27.01.2011 it was discovered that the Meenu had suffered several fracture of c-6 Vertebra which was discovered after X-Rays and MRI were received from Dr. Arvind Kalra of Pathankot who runs a diagnostic Clinic. Thereafter since it was medico legal case the concerned Doctors enquired about the Police Report if any, Jatinder Saxena complainant being lay man then realized that police report has to be made in this respect as such he want back to Railway Police Chowki Chaki Bank Pathankot vide DDR No.06 dated 27.01.2011 who recorded the report to the circumstances under which the accident had occurred by that time doctors referred Smt. Meenu to PGI Chandigarh.
3. That on 27.01.2011 Smt. Meenu was rushed to PGI Chandigarh and they stayed at PGI Chandigarh only for one day and since there was a lot of rush Meenu was not getting proper attention of the doctors concerned at PGI Chandigarh and as such she was shifted to Indus Hospital at Phase-1 Mohali where she remained admitted from 28.01.2011 to 09.02.2011 and she was operated upon and treated, where Jatinder Saxena complainant spent Rs.2,26,524/-, in addition to the other expenses and medicines. Since she was serious her entire body lower than the neck was paralyzed she was sent home and was admitted in the Civil Hospital Pathankot and approximately total amount of Rs.2,57,721/- was spent on her treatment at PGI, Indus Hospital, transportation Chiktsa Hospital and medicine etc.
4. That the death of the complainant's wife Meenu has occurred on account of negligence on the part of the Indian Railways/their concerned staff for not properly maintaining their railways compartment in which Meenu was travelling, there can be no other explanation for the upper berth getting loose and falling on the passenger travelling on the lower berth, negligence which is manifest from the circumstances under which this occurrence in addition to the loss suffered on account of treatment of Smt. Meenu. Smt. Meenu was earning Rs.10,000/- per month from her Boutique, she was 45 years old and quite healthy. Jatinder Saxena complainant have suffered a loss of Rs.15 lakhs on account of loss of earning of Smt. Meenu and she would have worked for another 25 years in addition to them, the complainant claims Rs.5 lakhs on account of loss of dependency consortium and pain, suffering and loss of love and affection. As such Jatinder Saxena complainant claim Rs.15 lakhs on account of compensation by way of damages etc, on account of rash and negligent act of the railways leading to the death of the complainant's wife Smt. Meenu. That the complainants and their family members have purchased the Railway Tickets from the opposite parties for their best journey, as such the complainants are consumers of the opposite parties. Due to non repair of berth by the opposite parties timely, which is deficiency in service on the part of the opposite parties, the complainants have suffered great monetary and pecuniary loss due to the deficiency of services of the opposite parties. The complainants have also suffered mental harassment and compelled to face litigation expenses, due to the deficiency in services of the opposite parties as well as negligence and illegal act of the opposite parties. It is further submitted that the death of the deceased Meenu was caused due to the negligence of the Railway Department and even it was held by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh vide its order dated 09.07.2015.
5. It is further submitted that this is the second complaint filed by the complainant. Earlier the complainants have filed consumer complaint before the District Consumer Disputes Redressal Forum, Gurdaspur. The said complaint was allowed by the Consumer Forum, Gurdaspur and respondents were directed to pay compensation to the tune of Rs.8,70,000/- within 30 days from the date of receipt of order, failing which it will carry interest @ 9% per annum from the date of complaint i.e. 25.07.2011 till realization, vide its order dated 29.02.2012. The respondents have went in appeal before the State Consumer Disputes Redressal Commission, Punjab, Chandigarh against the order dated 29.02.2012. The Hon'ble State Commission has allowed the said appeal of the respondents and set aside the order of the Consumer Forum, Gurdaspur on the ground that the District Forum, Gurdaspur did not have the territorial jurisdiction to entertain the complaint. Consequently, the complaint is hereby dismissed for want of territorial jurisdiction with liberty to the complainant to file the complaint before appropriate Forum, vide its order dated 09.07.2015. Hence this complaint is filed with the prayer that the OPs may be directed to pay the compensation amount of Rs.15 lacs alongwith interest due to the deficiency of services as well as mental harassment, physical harassment and great monetary and pecuniary loss suffered by the complainants and litigation expenses in favour of the complainants, in the interest of justice.
6. Notice of the complaint was given to the opposite parties and accordingly all the opposite parties appeared through their counsel and filed written reply, whereby contested the complaint by taking preliminary objections that this Forum has no jurisdiction to try and entertain the present complaint and further averred that complainant has not approached the Forum with clean hands and concealed the material facts and further averred that the complainant has no locus standi to file the present complaint as there is no relationship of consumer between the parties i.e. the complainant and opposite party. Moreover, the complaint filed by the complainant is bad for mis-joinder and non-joinder for necessary parties and further averred that the perusal of the complaint filed by the complainant reveals that the same is nature of damages so for claiming damages it is the Civil Court which has got the jurisdiction to try and entertain the instant proceedings. It is further alleged that no accident occurred with the deceased as alleged by the complainant in the complaint and even if it is presumed that any incident occurred as alleged in the complaint then it is the suit for damages which is maintainable and not the present complaint or in the alternative it is the Railway Tribunal at Chandigarh which has got the jurisdiction for the same and further the complainant is not the consumer. The whole of the complaint and the documents placed by the complainant reveals that there is no documentary evidence which prove this fact that any ticket was purchased by the deceased or by the present complainant and any accident occurred as alleged. On merits all the averments made in complaint are categorically denied and lastly submitted the complaint of the complainant may be dismissed.
7. In order to prove the case of the complainant, the learned counsel for the complainant tendered into evidence affidavit of complainant Ex.CA and affidavit of Anil Kumar Ex.CB and affidavit of Lucky Ex.CC alongwith some documents Ex. C1 to Ex.C46 and then closed the evidence.
8. In order to rebut the evidence of the complainant, counsel for opposite parties tendered into evidence affidavit Ex.OPA alongwith document Ex.R1 to Ex.R7 and then closed the evidence on behalf of the opposite parties.
9. We bestowed our thoughtful consideration to the submissions made by the learned counsel for the respective parties and also gone through the case file very minutely.
10. The OPs raised the objection that the instant complaint is not maintainable because it involves complicated question of law and facts hence, this Forum has no jurisdiction to try and entertain the complaint and matter should be referred to the Civil Court or Railway Accident Tribunal. This submission of the OPs is not supported by any cogent and convincing evidence because simply taking a plea that the question in dispute involves complicated question is not sufficient rather it is the duty of OP No.2 to bring on file specific instances in support of his version and moreover Hon'ble Supreme Court has held in a number of judgments that simply recording of evidence is required or some complicated question of law and facts involved would not oust the jurisdiction of the Forum and the judgments relied upon are CCI Chambers Co-Op. Housing Society Ltd. Versus Development Credit Bank Ltd. 2003 (3) CLT 221 (SC), Anuj Jawala Papers Mills Ltd. and another Versus State Bank of India, 1999 (1) CLT 441 (SC). So, with the observations of the Hon'ble Supreme Court the plea taken by the OPs is not sustainable.
11. The next point raised by the learned counsel for the OPs that the complainants are not the consumer of the OPs. We failed to understand how and under what circumstances this plea taken by the OPs because it is established on the file that the complainants boarded in the train after purchasing the tickets and photostat copy of tickets are available on the file Ex.C10 to Ex.C15 and as such it is established that the complainants availed the services of the OPs after paying consideration and therefore, the complainants are under the definition of consumer as defined in the Consumer Protection Act.
12. Further the learned counsel for the OPs also took a plea that this Forum has no territorial jurisdiction and as such the complaint of the complainant is liable to be dismissed. It is pertinent to mention here that firstly the complaint was decided by the District Consumer Disputes Redressal Forum, Gurdaspur on 29.02.2012 and against that judgment OPs went in appeal and said appeal was decided by the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh on 09.07.2015 where categorically held that District Consumer Disputes Redressal Forum, Gurdaspur has no territorial jurisdiction and directed to complainants to file the complaint in appropriate Forum and accordingly this complaint filed before this Forum and as per version and plea taken in the complaint the berth of the railway coach was fallen upon the deceased wife of the complainant i.e. Smt. Meenu, at Jalandhar. So, it means the occurrence took place at Jalandhar and therefore we are of the considered opinion that the District Forum at Jalandhar having a territorial jurisdiction. Therefore, we find that the plea taken by OPs having no force.
13. Apart from above the OPs also pleaded that complainant Meenu alongwith Anil Kumar was travelling in compartment meant for handicapped persons and the handicapped persons are offered concessional travelling rates is concerned, but we do not find any merit in this type of objection because the complainant has categorically pleaded in the complaint that Anil Kumar was permanently disabled rather he has got an injury and surgery on his leg and his leg was covered with bandages. The said Anil Kumar and Smt. Meenu had purchased the tickets after paying full travelling expenses, however, on the advice of concerned TTE, they shifted to the compartment for handicapped persons and Smt. Meenu was accompanied by Sh. Anil Kumar as his attendant. They have not purchased a ticket on concession basis rather the ticket purchased regular. So, if the deceased Smt. Meenu alongwith Sh. Anil Kumar was travelling in the handicapped coach not themselves rather on the advice of TTE then this objection of the OPs also having no force.
14. After discussing the question raised by learned counsel for the OPs we find that the OPs also brought on the file daily diary book and daily damages record book of the relevant period but there is no entry regarding the falling of berth in the coach for which deceased Smt. Meenu was travelling. The learned counsel for the OPs has submitted that there is no entry regarding the repair of the berth in the reports of Jammu Tawi Railway Station. He has relied upon the entries in the relevant record in the daily diary book for the period from 27.01.2011 and 31.01.2011 but the counsel for the complainant has pointed out some discrepancies in the maintenance of the record. He has pointed out that in the daily diary book for 31.01.2011 the reference of the train and coaches is missing, to this, counsel for the OPs produced another book i.e. Diary book of Rest Giver batch and submitted that Shalimar Express train on 31.01.2011 was late, hence the requisite entries were not entered in the Daily Diary Book rather the same were entered in Rest Gaver Batch. We think if there is no entry regarding repair of berth which allegedly got loose and fell upon Smt. Meenu, but, this cannot be a ground to out rightly reject the claim of the complainants, when there is other sufficient evidence is available on the file. We think that the complainant No.1 is husband of deceased Smt. Meenu, was not expecting that an accident will occur to the person of his wife and she will ultimately succumb to her injuries and as such it cannot be assumed that he started for arranging evidence in advance as has been alleged by the OPs. The counsel for the complainants has brought on file copy of DDR No.6 dated 27.01.2011 in which the date, time and cause of accident of Smt. Meenu has been specifically mentioned. There is no delay in reporting the incident to police even there is a newspaper Ex.C18 dated 30.01.2011 in which it is categorically reported that due to the fall of berth, the neck bone of Smt. Meenu got fractured. There is another newspaper dated 31.01.2011 Ex.C19 and Ex.C20, in these newspapers it is also publications the dates of accident which is much prior to the death of Smt. Meenu. Smt. Meenu died on 10.02.2011, so it cannot be said that after the death of Smt. Meenu, the complainant has procured the aforesaid newspapers rather truth comes from the document brought on file by the complainant even the medical summary issued by Indus Hospital, Mohali Ex.C21 the diagnoses has been made as cervical spine injury/dislocation of C6, C7. Under the heading “history of present illness”. There is another medical summary which perhaps is of the PGI, Chandigarh in which the diagnoses has been mentioned as “rail accident, fall of heavy object on neck and back”. It has also been mentioned in the said hospital report that the patient got injuries when upper berth fell on the neck of patient while she was sitting in the lower berth. The copy of the MRI report Ex.C26 also supports the nature of injury which was inflicted on the neck of the deceased Smt. Meenu. The complainants have also placed on file the record relating to medical treatment/surgery conducted on the person of patient Smt. Meenu at Indus Hospital, Mohali. Now in order to rebut the evidence of the complainant, the OPs have tried to rely upon the affidavits of the officials of the opposite parties to prove the fact that there is no record with OPs relating to the falling of the berth or its maintenance by the concerned staff at Jammu Tawi Station. No doubt as per the version there is no record in regard to repair of falling berth but we can understand the fact that the said record is to be prepared and maintained by the OPs and they intentionally can avoid it just to save the skin of official from any legal liability. So, it is clearly established that as per story elaborated in the complaint coupled with the evidence produced on the file it is prove on the file that the injuries caused to the deceased Smt. Meenu was due to fall of berth and she ultimately scummed her injury.
15. Now we have to take into consideration whether there is any negligence, deficiency in service on the part of the Ops. For that purpose it is established on the file that the berth of the coach where Smt. Meenu was travelling, fell down and caused fracture on the cervical spine injury of the deceased Smt. Meenu and it is fundamental duty of the OPs to maintain all the berth of each coach but the berth fell down due to loosening of the screw and as such there is obviously a negligence in service on the part of the complainant and when situation is so then the OPs are liable to pay compensation/damages to the legal heirs of the deceased and in support of this submissions I like to refer the case decided by Madhya Pardesh State Consumer Disputes Redressal, Commission, Bhopal in case Kamla Verma Vs. Union of India and another 2003(3) CLT 211, in the aforesaid case the complainant sustained cervical spine injury due to fall of berth while travelling in the train and in that case the answer of the question of OP has been given by State Commission, Madhya Pardesh in the manner that Section 123, 124-A of Railway Act is not applicable in the present case because the fallen berth does not cover untoward incident and this proposition is further answered by the Hon'ble Supreme Court in case Union of India Vs. Sunit Kumar, AIR 1984 SC 1737. With these observations we find that the negligence in not maintaining the berth is absolutely established and as such the complainants are entitled to get compensation on account of death of Smt. Meenu and now question remains how much compensation is to be given to the complainants. The complainants alleged in the complaint that the deceased Smt. Meenu was of the age of 45 years at the time of death and she was earning about Rs.10,000/- per month from her business of boutique. Admittedly no specific evidence brought on file regarding running of boutique by Smt. Meenu and in like this case we have to assess a normal monthly income of the deceased and if we considered that the monthly income of the deceased Smt. Meenu was Rs.5000/- per month and she was aged between 45-50 years then a multiplier of 13 is to be applied as per provisions of Motor Vehicle Act, and accordingly if multiplied by 13 then the total compensation amount comes to Rs.7,80,000/- and out of that amount it is expected that Smt. Meenu would have incurred towards her maintenance i.e. 1/3rd if she had been alive and after deducting 1/3rd amount, the remaining comes to Rs.5,20,000/- and if we include the amount of medical expenses incurred by the complainant which are as per bills Rs.2,50,000/- and complainants No.1 to 3 also suffered a loss of love and affection being husband and children respectively for that we assess the compensation of Rs.1 lacs and accordingly we allow the present complaint and directed the OP to pay to the complainant total compensation amount of Rs.5,20,000/- + medical treatment bill of Rs.2,50,000/- and loss of love and affection Rs.1,00,000/- totaling Rs.8,70,000/-. The abovesaid compensation amount be paid to the complainants in equal shares within 30 days from the date of receipt of the copy of the order. If the opposite parties failed to pay the above said compensation amount to the complainants within stipulated period of 30 days, then the said amount will carry interest @ 9% p.a. From the date of complaint till realization. Complaint could not be decided within stipulated time frame due to rush of work.
16. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room
Dated Parminder Sharma Karnail Singh
25.01.2017 Member President
