Delhi

StateCommission

CC/09/98

SH.VIJAY BHARGAVA - Complainant(s)

Versus

UNION OF INDIA - Opp.Party(s)

14 Mar 2019

ORDER

IN THE STATE COMMISSION : DELHI

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

Date of Arguments :14.03.2019

Date of Decision : 02.04.2019

COMPLAINT NO.98/2009

In the matter of:

 

Shri Vijay Bhargava,

Flat No.4, Block M,

11 Mayfair Road,

•  

 

Versus

 

1. Union of India,

Through The Railway Ministry,

Rail Bhawan,

1 Raisina Road,

New Delhi.

 

2. The General Manager,

Northern Railway Board House,

Copernicus Marg,

New Delhi-110001.…..Opposite Parties

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of the complainant is that she is resident of Kolkata and Senior Citizen being aged about 64. Earlier he was Managing Director in Kolkata  Phototype Company ltd.. He was on a visit to New Delhi in May, 2007 and purchased a ticket for journey from Kolkata to Delhi on Hawara Delhi Rajdhani Express in AC-II tier class. A ticket under PNR No.6304118619 was issued to him for Rs.1,455/-, he commenced his journey on 04.05.07 and was to reach in Delhi on 05.05.07. On 05.05.07 when journey was  nearing the end and the train was approaching Shivaji Bridge Railway Station, New Delhi, he left his seat to visit/ use washroom located near the entrance gate of the coach. When he stepped out of the wash room,10-12 persons who did not appear to be co-passengers from the same coach. He tried to move out of the  way so as to make way  for other passengers waiting to use the wash room and to return to his seat, and suddenly he was pushed by the crowd towards main gate of door of the coach which has been negligently been left  unlocked by the staff on duty. Shivaji Bridge was not a scheduled stop and the train was to terminate at New Delhi Railway Station, which was still a few minutes away. As a consequence of  gate being negligently left  ajar, he was thrown out of the train and fell on the railway track. He was first taken to Dr.Ram Manohar Lohia Hospital, New Delhi after being found in an injured stage at railway track at Shivaji Railway Station, by police. Copies of DD No.13 A dated 05.05.07 and DD No. 40 B dated 05.05.07 have been annexed.
2. He was in unconscious state, however the police was able to contact the relatives from phone number available in his mobile  phone.. He was taken by relatives on the same day, from Ram Manohar Lohia Hospital and admitted in the Indraprastha Hospital, New Delhi where he was admitted with injuries on the chest, pelvis, left arm and the left foot  (below the knee),. The left foot below the knee was totally crushed with loss of skin and tissue, the doctors were constrained to amputate the left leg from below the knee. Treatment  including post operative stay in the hospital lasted for more than one month. He was discharged on 07.06.07. He was again admitted on 15.06.07 and discharged on 16.06.07. He was fitted with a prosthetic limb in place of his amputed foot. He had to continue to stay in Delhi and undergo physiotherapy and rehabilitation for a period of several days.
3. His family members had to travel from Kolkata and stay in Delhi till he was in a position to return to Kolkata. One of the daughter  who lives and works in USA had to travel to New Delhi to assist her mother who herself was battling cancer. His daughter had to take leave from her workplace. Cost of stay and treatment in Indraprastha Apollo Hospital, medicines, doctors fee, cost of prosthetic limb, etc. total Rs.10,59,774/-. He had a medi claim policy by New India Assurance Company ltd. from where he received Rs.3,65,000/- which was the maximum amount payable, as per terms. He requires treatment in the form of medication and physiotherapy at  a cost of Rs.6,000/- per month . The prosthetic has a life of 3 to 4 years and would be required to be replaced. Presently cost of the prosthetic limb is Rs.1,52,000/- . Additional rubber liner which holds the artificial foot in prosthetic  has a life of 6 months and needs to be replaced at  a cost of Rs.11,000/- after every six months.
4. Complainant had to undergo severe emotional and mental trauma coupled with colossal expense which was purely a result of negligence on the part of the staff. Hence present complaint for Rs.6,84,774/- on account of expenses incurred in treatment (after deducting  Rs.3,75,000/- reimbursed by the Insurance Company). He has also claimed Rs.5 lakhs towards expenses incurred on travel to and stay of his family members in Delhi, Rs.7,20,000/- for recurring monthly expenses towards continued physiotherapy and medication for ten years, Rs.3,04,000/- being cost of two replacements of the prosthetic limb,  which  would presumbly be required in his life, Rs.1,98,000/- being replacement cost of 18 rubber lining, Rs.5 lakhs for physical and mental agony, Rs.50 lakhs for permanent physical disability.
5. The OP filed WS raising preliminary objection that this Commission has no jurisdiction in view of Section 13, 15 and 8 of  Railways Claim Tribunal Act, Section 123 and 124, Section 124 A and 125 or Railways Act. Only Railways Claim.
6. Section 124 A of Railways Act provide that no compensation is payable if the passenger suffered injury due to his foot injury or his own criminal act, Section 125 provides for remedy before Claims Tribunal. It referred to decision of National commission in R.P. No.197/92 titled as  Mukesh  Enterprises vs. Chief Medical Supdt. decided on 04.03.93. The claim is highly excessive and exaggerated in view of provisions of Railways Act and its Rules. There was no negligence or deficiency in service on the part of Railway or its employees. The alleged accident occurred due to lack of reasonable care and foresight on the part of the complainant. The complaint is bad for misjoinder of necessary parties as insurance company has not been made a party. Complainant is hopelessly barred by limitation. It denied that complainant went to use the wash room located near entrance gate of the coach or stepped out of wash room or there was unruly crowd of about 10-12 persons. The attendant and TTE was very much available in the compartment. It denied that complainant tried to move out of the way so as to make way for other passengers waiting to use wash room and return to his seat. It denied that suddenly  complainant was pushed by crowd towards main gate. It replied that due to operational management most of the trains crossing from Shivaji Bridge Station, speed is very slow as terminating station is about less than 1 k.m. Some of the passengers of their own convenience try to get done at Shivaji Bridge Station in running slow speed train. Complainant might have tried to do so. It denied other averments made in the complaint.
7. Complainant filed rejoinder and his own affidavit.
8. As compared to it the OP filed affidavit of Shri Pravin Kashyap, Dy. Chief Commercial Manager.
9. The complainant has filed written arguments. The OP was directed to file written arguments vide order 15.07.13.It appears that same has not been filed  till date.
10. I have gone through the material on record and heard oral arguments advanced by counsel for both the parties. The counsel for complainant relied upon decision  of  National Commission in Union of India vs. Savita Ben Suman Bhai Patel III (2011) CPJ 34 in which the objection of the OP regarding jurisdiction of Consumer Court being barred by Railway claims Tribunal was rejected. He also relied upon decision in Union of India vs. Dr. Mohan Lal Gupta I (2011) CPJ 38 for the same preposition.
11. Reliance has also been placed on decision in Govind Yadav vs. New India Insurance Company Ltd. IV (2011) COJ 111, SC. The same pertains to quantum of damages and not to jurisdiction of Consumer Court. Moreover that  is the case under the Motor Vehicle Act.
12. Counsel for complainant also relied upon decisions in Sumati Devi M. Dhanwatay vs. Govt. of India 2004(3) SCR 928 to show that complaint under Consumer Protection Act was allowed. Last para of judgement shows that Railway did not raise any issue as to maintainability of complaint on jurisdiction of State Commission. So that does not help complainant.
13. On the hand the counsel for OP has relied upon decision of Kolkata High Court in General Manager Eastern Railway vs. Apurva Kanor 2009 SCC online Kolkata 2175 in which the objection of appellant therein regarding jurisdiction of Consumer Disputes Redressal Forum being barred by section 13 and 15 of Railways Claim Tribunal Act, 1987 read with section 123 and 124 A of Railways Act, 1989 was upheld. The plea of the petitioner was that in terms of section 13 (1) (A) of Railways Claim tribunal Act, 1987, the case fell within expression ‘untoward incident’ defined under section 123 (1)(c) Railways Act, 1989. After considering decision of Hon’ble Suprmee Court in Chairman, through  Valuvar Transport Corporation vs. Consumer Protection Council, 1985 (2) SCC 479 it was held that complaint can not be said to be in relation to any service hired or availed by the consumer because  injury sustained had nothing to do with the service provided or availed of by him but the fatal injury was direct result of accident on account of which he was thrown out of his seat and hit against an iron handle of the seat in front of him. The case squarely fell within the ambit  of section 11(6)(5) of 1988 Act and the Claims Tribunal constituted under said Act had jurisdiction to entertain the said case. The National Commission has no jurisdiction whatsoever and was entirely wrong in exercising jurisdiction and awarding compensation. Accordingly the order passed by District Forum and State Commission was set aside and liberty was given to the petitioner to take appropriate steps under Railway Claims Tribunal Act.
14. In Rakesh Patralekh vs. Union of India II (2010) CPJ 234 NC held that where complainant’s father, boarding the train fell in between the track and leg is cut below knee, lateron died to excessive bleeding it is claim for ‘untoward incident’ payable by Railway Claims Tribunal. Consumers Fora has no jurisdiction to entertain the complaint.
15. In Rati Tripathi vs. Union of India II (2016) CPJ 144 M.P. State commission took the same view. It was held that exercise of jurisdiction was in derogation of provisions of Railways Claim Tribunal  Act, 1987 and complaint was not maintainable.
16. In view of the case law cited by counsel for OP I find that jurisdiction of this Commission is barred by section 15 Railways Claim Tribunal Act. The complaint is rejected with liberty to the complainant to seek remedy before Railways claim Tribunal Act, after excluding the time spent in the present proceedings as per section 14 of the Limitation Act and decision of the Hon’ble Supreme Court  in Laxmi Engg. Works vs. P.S.G. Industrials Institute AIR 1995 SC 1428
17. Copy of the order be sent to both the parties free of cost.
18. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)