Delhi

StateCommission

FA/12/779

MANJU & ORS. - Complainant(s)

Versus

UNION OF INDIA - Opp.Party(s)

24 Apr 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:24.04.2019

                                                                                                              

                                                                   Date of decision:02.05.2019

 

First Appeal No.779/2012

 

IN THE MATTER OF

 

1. Manju

W/o Late Sh. Hari Dutt

 

2. Master Abhishek

S/o Late Sh. Hari Dutt

 

3. Master Vishal

S/o Late Sh. Hari Dutt

 

All R/o H. No-51, Street No. 6

Bank Colony, Mandoli Extn

Shahdara, Delhi-110093….Appellants

 

(Appellant no. 2 & 3 being minor through their

Mother and natural guardian i.e. the appellant no. 1)

 

VERSUS

 

Union of India

Representative and summoned through:

 

General Manager

Northern Railway, Baroda House

New Delhi-10002....Respondent

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

               

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. S.K. Vashisth, Counsel for the Appellant

                   Ms. Rekha Aggarwal and Ms. Swati Sharma, Counsel for the Respondents

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Aggrieved by the order dated 10.05.2012 passed by the District Consumer Disputes Redressal Forum (East) in C-423/2010 in the matter of Ms. Manju and ors versus General Manager, Northern Railway, New Delhi, dismissing the complaint, observing that there is no deficiency on the part of the Railways, Ms. Manju and others, resident of Delhi, have filed an appeal before this Commission for short appellant, under Section 15 of the Consumer Protection Act 1986, the Act, against the General Manager, Northern Railways, hereinafter referred to as Respondents, alleging that the orders so passed are bad both on facts and law and praying for relief as under:-

 

It is, therefore, most respectfully prayed that the Hon’ble Commission may graciously be pleased:-

1. To accept the appeal of the appellant;
2. To set-aside the impugned order/judgment dated 10.05.2012 passed by the Hon’ble District Forum-East in case no. 423/10.
3. To allow the complaint of the complainant; and
4. To award the cost of appeal in favour of appellant.
5. And any other relief which this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case in favour of the appellant and against the Respondent/complainant in the interest of justice.

 

2.           Facts of the case necessary for the adjudication of the appeal are these.
3.           The appellant alongwith her sister and husband were on the way from Delhi Shahdara to Moradabad. The husband of the appellant purchased two second class tickets for the journey. The appellant and her husband were waiting for the train at the platform no. 2. Suddenly Brahamputra Mail passed through Platform no. 2 without any prior information with high speed. Due to sudden arrival of the fast moving train the husband of appellant had fallen down on the platform due to the wind pressure caused by fast moving train. The husband of the appellant tried to get up by overcoming the wind pressure but he was struck by some passenger or object and due to that he had fallen down on the track. In the process he sustained grievous  injuries all over his body and finally he succumbed to the injuries sustained due to the accident. The post mortem was conducted on the dead body of the deceased at GTB Hospital. The death of the deceased was caused reportedly by the injuries sustained due to the untoward incident at the platform no. 2 of Delhi Shahdara Railway Station and allegedly the accident was caused by the negligence of the officials of the respondent. The respondent caused the train to run on such a high speed without any information to the waiting passenger for the following train resulting in the untoward incident.
4.           The appellant filed an application before Hon’ble Railway Claim Tribunal titled as Manju Devi vs. Union of India OA No. (IIU) 209/2008 but the same was dismissed as withdrawn since the same was not maintainable as per Railway Claim Tribunal Act. Liberty to file a fresh claim application was granted if the law permits.
5.           The appellate filed no application before the Railway Claim Tribunal. On the contrary he chose to file a complaint before the District Consumer Forum for the redressal of their grievances, which complaint, as stated above, stood dismissed observing that there is no deficiency of service on the part of the Railways. This dismissal of the complaint led to filing of this appeal on the ground that the impugned order is bad both on facts and on law. Secondly the District Forum could not appreciate the deficiency in service on the part of the Railways resulting in the end of the appellant’s husband.
6.           The respondents were noticed and in response thereto they have stated that they do not wish to file any fresh reply. Their reply filed before the District Forum resisting the complaint be treated as the reply to the appeal filed before this Commission.
7.           This appeal was listed before this Commission for final hearing on 24.04.2019 when the counsel from both sides appeared and advanced their arguments. I have read and re read the records of the case and I have given a careful consideration to the subject matter.
8.           Short question for adjudication in the appeal is whether the Railways are deficient leading to the end of the appellant’s husband. This leads to another question as to what is the role of the railways in the facts and circumstances. And finally whether the issue involved in the case are adjudicable by the Consumer Forum when for dealing with such issues connected with or related to there exists another statutory authority, namely, Railway Claims Tribunal.
9.           I may in the first instance advert to provisions of the Railway Claims Tribunals Act.

Section 15 of RCT Act 1987

Jurisdiction, powers and authority of Claims Tribunal that the Claims Tribunal shall exercise, on and from the appointed day, all such jurisdiction, powers and authority as were exercisable immediately before that day by any civil court or a Claims Commissioner appointed under the provisions of the Railways Act,

1. Relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for—compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;
2. Compensation payable under section 82A of the Railways Act or the rules made thereunder; and
3. In respect of the claims for refund of fares or part thereof or for refund of any freight paid in respect of animals or goods entrusted to a railway administration to be carried by railway.

 

Section 15 of RCT Act 1987

On and from the appointed day, no court or other authority shall have, or be entitled to, exercise any jurisdiction, powers or authority in relation to the matters referred to in  Sub Para (1) of section 13. The Railway Claims Tribunal comes into force on 08.11.1989 vide Central notification dated 05.10.1989.

 

Section 28 of RCT Act 1987

Act to have overriding effect:- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

10. The ld. Counsel for the appellant has argued that the Railways not providing adequate protection to the waiting passengers on the platform have been deficient. The deficiency on the part of the Railways has resulted in the death of the appellant’s husband. In these circumstances relying on the provisions of the Railway Act 1989 the ld. Counsel for the appellant has prayed for the compensation.
11. The ld. Counsel for the respondent on the other hand argued that there is no deficiency on their part. Death of the person is the result of non observing the precaution one is required to and for this the respondents can in no way be accountable.
12. I may at this stage advert to Section 124A of the Railways Act 1989.

Section 124A of the Railways Act, 1989, is reproduced as under:-

"[Section 124A. Compensation on account of untoward incident.]- When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitled a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident :

Provided that no compensation shall be payable under the section by the railway administration if the passenger dies or suffers injury due to -

1. suicide or attempted suicide by him ;
2. self-inflicted injury ;
3. his own criminal act ;
4. any act committed by him in a state of intoxication or insanity ;
5. any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.

 

 Explanation.- For the purposes of this section, "passenger" includes -

 

1. a railway servant on duty ; an
2. a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident."

 

The explanation shows that a person, who has purchased a valid ticket, is a passenger within the meaning of the said section.

The definition of untoward incident given in Section 123 (c) of the Railways Act, 1989, is reproduced as under :-

                   "123(c)  "untoward incident" means –

 

 (i)  the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987) ; or

(ii) the making of a violent attack or the commission of robbery or dacoity ; or

(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station ; or (2) the accidental falling of any passenger from a train carrying passengers."

Now, the question would arise whether the untoward incident is to be given an interpretation that only in case of a person falls from the train is to be included in the definition of untoward incident

13. From bare reading of the provision of the Section 124 of the Railways Act it is manifestly clear that one is entitled for compensation in the event an untoward incident has taken place. What is untoward incident has been detailed in Section 123 (c).
14. The ld. Counsel for the appellate relying on the following two judgments of the Hon’ble High Court has claimed compensation keeping in view the facts and circumstances of the case, namely,

 

1. Pushpa Devi vs General Manager Railways (2015) 3T AC 437 (M.P)
2. Budho Devi and ors vs. Union of India (2017) 4 TAC 256 (P&H)

 

15. Section 124 A stipulates that- when in the course of working a railway an untoward incident occurs then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action or recover damages in respect thereof. The railway administration shall notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident."
16. Exception however is carved out by virtue of proviso which stipulates:

 

"Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -

(a) suicide or attempted suicide by him ;

(b) self inflicted injury;

(c) his own criminal act;

(d) any act committed by him in a state of intoxication or insanity;

(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by said untoward incident."

 

17. Thus in a case where the death is due to self inflicted injury the railway is exonerated from paying the compensation.
18. Coming back to the facts of the case, the deceased was at the platform and not inside the train, waiting for his train to come. In the meanwhile another train passed through that platform having no halt on that station. Expectedly waiting passengers on the platform are required to observe due and necessary precautions. The said precaution not having been observed it is a case of self inflicted injury. Cases where compensation has been claimed arising of self inflicted injury are not payable since covered under the exception clause. This Commission has all the sympathy for the complainants who have lost their family member but on the judicial side one is entitled for relief if permissible by law and not by way of compassion.
19. Secondly, the Hon’ble NCDRC in the matter of Rakesh Patralekh versus Union of India as reported in IV [2010] CPJ 234 (NC) have ruled that claim for untoward incident is entertainable before the Railway Claims Tribunal. Consumer Forum has no jurisdiction to entertain the complaint on the subject.
20. Having regard to the discussion done and the legal position explained, the subject matter being not entertainable before the Consumer Forum, the appeal is dismissed being devoid of merit leaving the parties to bear the cost.
21. Ordered accordingly.
22. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be sent to District Forum for information. File be consigned to records.

                  

 

(ANIL SRIVASTAVA)

                                                                                MEMBER