DR. SADHNA SHANKER, MEMBER I.A. No. 15313 of 2023 1. This is an application for substitution of the legal representatives of Mr. Unni A and Shri K. P. Appa, respondents No. 1 and No. 4. The legal heirs of Mr. Unni A. respondent no. 1 are as under: - Kully,
W/o Raman R/o Njaliparambil House, Chuduvulathur, Shornur, Palakkad – 679121 (ii) Sudheesh R., S/o Late Shri Unni A. R/o Njalilparambil House, Chuduvulathur, Shornur, Palakkad – 679121 (iii) Sruthi R, D/o Late Shri Unni A, R/o Chudalaparambu, Parappangadi, Ullanam The legal heirs of Mr. K.P. Appa, respondent no. 4 are as under: - Rajan
S/o Shri K.P. Appa, R/o Njalil Parambil, Shoranur 1, Palakkad, Kerala – 679121 - Gopalakrishnan
S/o Shri K.P. Appa, R/o Njalil Parambil, Shoranur 1, Palakkad, Kerala – 679121 - Bindhu,
D/o Shri K.P. Appa, R/o Njalil Parambil, Shoranur 1, Palakkad, Kerala – 679121 2. The application for substitution is allowed and the legal representatives of Mr. Unni A and Shri K.P. Appa are taken on record. 3. This appeal has been filed under section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) in challenge to the Order dated 23.04.2015 of the State Commission in complaint no. 82 of 2013, whereby the complaint was allowed in part. 4. We have heard the learned counsel for the appellant (hereinafter referred to as the ‘railways’) and learned counsel for the respondents (hereinafter referred to as the ‘complainants’) and have perused the record including inter alia the Order dated 23.04.2015 of the State Commission and the memorandum of appeal. 5. There is a delay of 107 days in filing the present appeal. In the interest of justice and for the reasons mentioned in the application for condonation of delay, the delay in filing the appeal is condoned. 6. The facts, in brief, of the case are that on 16.06.2013, when Smt. Sindhu (hereinafter referred to as the ‘deceased’), aged about 35 years, who is wife of complainant no. 1 and mother of complainants no. 2 and 3 and daughter of complainants no. 4 and 5, was waiting for the train at the platform at Angadipuram Railway Station, a huge branch of the tree had fallen on her head and she was seriously injured. Immediately, the relative of Sindhu with the help of Railway staff, took her to A1-Shifa Hopsital at Perinthalmanna. On 25.06.2013 at 09.20 p.m., she succumbed to the injuries sustained. It is alleged that the accident had happened due to the negligence on the part of the Railways as it is the duty of the railways to provide safety to the passengers. It is further alleged that due to untimely death of Sindhu, the complainant no. 1 lost his wife and the complainants no. 2 and no. 3 lost their mother. 7. Being aggrieved, the complainants have filed a complaint before the State Commission seeking compensation of Rs. 25,00,000/- with interest as compensation and Rs. 25,000/- as cost of litigation. 8. The railways contested the complaint by filing reply stating that the lady immediately rushed to the nearby private hospital AI Shifa in ambulance arranged by Railway accompanied by Shri Balachandran, Station Master Incharge. Sr. Divisional Medical Officer / Shoranul also reached the hospital and based on his recommendation ex-gratia was arranged and Shri M. N. Mohanan, Dy. Station Manager/Comml/Shorenur reached the hospital at 20.45 hrs and Rs. 5000/- was disbursed. It is further stated that after the enactment of the Railways Claims Tribunal Act, 1987, the compensation for death and injury arising out of accident to train or untoward incident are to be filed before the Railways Claims Tribunal under Section 16 of the Railways Claims Tribunal Act, 1989. The Specimen application Form for claiming compensation is attached here with for kind perusal and guidance. It also stated that the Section 123 of the Railways Act 1989 says that “in view of the definintion of ‘untoward incident’ provided under Sec. 123(C) of the Act, it is beyond any doubt that the compensation on account of untoward incident can be decided by the Railway Tribunal and none else….” It is further stated that there is no deficiency in service on the part of the railways. 9. The State Commission, vide its Order dated 23.04.2015, allowed the complaint in part and directed the railways to pay Rs. 8 lakh along with interest at the rate of 12% per annum from the date of complaint till realization and a cost of Rs. 10,000/-. 10. Aggrieved by the order dated 23.04.2015 of the State Commission, the railways has filed the instant appeal before this Commission. 11. Learned counsel for the railways has argued that the claims arising out of the Railways Act, 1989 are within the jurisdiction of Railway Claims Tribunal Act, 1987 and are beyond the jurisdiction of the National Consumer Disputes Redressal Commission. He further argued that the Railway Claims Tribunal Act, 1987 will prevail over the old Act and special law will prevail over the general law. In support of this contention he placed reliance on the decision rendered in the case of Chairman, Thiruvalluvar Transport Corpn. vs. Consumer Protection Council (1995) 2 SCC 479, Union of India (UOI) vs. Ashok Shankar Sarkale and Ors. MANU/MH/0313/2006 and Vijay Bhargava vs. Union of India & Ors. MANU/CF/0886/2023. He also placed reliance on the decision in the case of Rakesh Patralekh vs. Union of India and Ors. MANU/CF/0421/2010 wherein it has been held as under: “On a conjoint reading of the provisions contained in aforesaid Sections 123(c), 124A of the Railways Act, 1989 and 13 and 15 of the Railways Claims Tribunal Act, 1987 would show that on establishing of Railway Claims Tribunal, any claim for ‘untoward incident’ payable under Section 124A by the Railways Administration shall be entertained only by the Tribunal and no Court or other authority including the Consumer Forums shall have, or be entitled to exercise jurisdiction, powers or authority in relation to such claim….” He further argued that in view of provisions of Section 123(c) and Section 124A of the Railways Act, the complainants are not entitled for any compensation. Moreover, he further argued that the limit of compensation has been specified in the Railways Accidents and Untoward Incidents (Compensation) Amendment Rules, 1990, therefore the compensation granted by the State Commission is arbitrary and without any cogent basis. In support of this contention, he placed reliance on the decision rendered in the case of National Seeds Corporation Ltd. vs. Manju Devi 2020 SCC Online NCDRC 922. 12. On the other hand, learned counsel for the complainants argues that in the normal functioning of consumer protection fora established under The Consumer Protection Act, 1986 (now The Consumer Protection Act, 2019) cases of ‘deficiency’ and ‘unfair trade practice’ as defined under The Consumer Protection Act, 1986 (/2019) against the railways are decided by the fora on a regular basis. The submission is that it is now a settled proposition of law that ‘complaints’ alleging ‘deficiency’ or ‘unfair trade practice’ are maintainable before the consumer protection fora and there is scarcely any reason to unjustifiably keep on agitating on maintainability when the loss and injury occurred way back in 2013. He further argued that Section 28 of the Railway Claims Tribunal Act, 1987, provided that the Railway Claims Tribunal Act, 1987 shall have effect, notwithstanding anything inconsistent therewith, contained in any other law for the time being in force. In the present case, Section 28 of the Railways Claims Tribunal Act, 1987 does not have any implication because Section 3 of the Consumer Protection Act, 1986 (/2019) provides additional alternative remedy to the consumers to seek remedy for the loss and injury suffered due to ‘deficiency’ or ‘unfair trade practice’. He further argued that the accident occurred within the premises of the railways, they were fully liable to make payment of compensation to them. He further argued that the case of the complainants did not fall under Section 123(c), 124 or 124A of the Railway Claims Tribunal Act, 1987, hence, the claim was not required to be filed before the Railways Claims Tribunal. In support of the contentions, he placed reliance on the decision of this Commission in the case of Western Railway vs. Vinod Sharma, first appeal no. 451 of 2015 decided on 18.01.2017. 13. The main argument of learned counsel for the railways is that the consumer fora had no jurisdiction to entertain the consumer complaint, keeping in view the provisions of the Railway Claims Tribunal Act, 1987. 14. Section 13 of the Railways Claims Tribunal Act, 1987 reads as under: 13. Jurisdiction, powers and authority of Claims Tribunal .-(1) 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,- (a) relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for- (i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway; (ii) compensation payable under section 82-A of the Railways Act or the rules made thereunder; and (b) 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. (1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of section 124-A of the Railways Act, 1989 (24 of 1989), all such jurisdiction, powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the railway administration under section 124A of the said Act or the rules made thereunder. (2) The provisions of the[ Railways Act, 1989 (24 of 1989)] and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act. The Section 13(1A) was included in the said Act by Act 28 of 1994 (Section 9) and made applicable w.e.f. 01.08.1994. 15. Section '15' of the said Act says as follows:- "15. Bar of jurisdiction.- 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-sections (1) and (1A) of section 13." 16. Section 28 of the Railway Claims Tribunal Act, 1987 says as follows:- “28. 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." 17. Section 123(c) of the Railways Act, 1989 defines the untoward incident as follows:- "[(c) "untoward incident" means-- (1) (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.]" 18. Further, Section 124 of the Railways Act, 1989 is reproduced as under:- "124. Extent of liability.- When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, 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 has suffered a loss 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 a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident. Explanation.--For the purposes of this section "passenger" includes a railway servant on duty." 19. Section 124A of the Act provides for giving compensation on account of an untoward incident. 20. On the other hand, the Consumer Protection Act, 1986 (Act no. 68 of 1986), says the following in its preamble:- "An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith." 21. Further, Section '3' of the Consumer Protection Act, 1986 says as follows:- "3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force." 22. This Commission has held in Western Railway vs. Vinod Sharma (supra) as under: “A plain reading of the provisions quoted above from the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 indicates that an elaborate mechanism has been laid down for providing compensation in the event of accidents, untoward incidents and allied matters, during the course of the operations, carried out by the Railways and for that purpose, the jurisdiction, powers and authority of the Claims Tribunal have been laid down. It is to be determined, however, whether keeping in view the above provisions, the consumer fora shall also have the jurisdiction to deal with the matters, involving railway accidents. The issue has come up for consideration from time to time before the Hon'ble Apex Court and this Commission as well. It has been observed that the Consumer Protection Act is a special legislation, enacted to provide better protection for the interests of consumers in diverse fields. It is true that for specific sectors such as banking, finance, insurance, supply of electricity, entertainment etc., appropriate mechanism has been laid down in the respective statute, to provide suitable relief to the consumers as per requirements. However, the Consumer Protection Act is a beneficial legislation, specially enacted for the protection of the consumers and provides an additional remedy in the shape of Section '3' of the Consumer Protection Act, which clearly lays down that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force. A harmonious construction of the provisions contained in the Consumer Protection Act and the Railways Act etc. shall indicate that the jurisdiction of the consumer fora cannot be barred, even if the provisions to provide compensation are laid down in the Railway legislation. The Hon'ble Supreme Court in their order in Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha (dead) through LRs, I (2004) CLT 20 (SC) and in Trans Mediterranean Airways vs. Universal Exports, IV 2011 CPJ 13(SC) observed that, "having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section '3' seeks to provide remedy under the Act in addition to other remedies provided under other Acts, unless there is clear bar.” 23. In State of Karnataka vs. Vishwabarathi House Building Co-op. Society, I (2003) CPJ 1 (SC), the Hon'ble Supreme Court observed, that by reasons of the provisions of Section '3' of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the Civil Courts or other statutory authorities. 24. Further reliance is also placed on the decision of the Supreme Court in the case of Rathi Menon vs. Union of India (2001) 3 SCC 714 wherein it has been held as under: “25. In this context we may look at Section 128(1) also. It says that the right of any person to claim compensation before the Claims Tribunal as indicated in Section 124 or 124-A shall not affect the right of any such person to recover compensation payable under any other law for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect of the same incident. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision, and the other is to apply before the Claims Tribunal under Section 124 or 124-A of the Act.” 25. Furthermore, this Commission in the case of Rati Tripathi and Ors. vs. Union of India and Anr., First appeal no. 544 of 2016 has taken the similar view. 26. In view of the above settled legal position, we are of the opinion that the establishment of claims tribunals under The Railway Claims Tribunal Act, 1987 does not in any way infringe upon or fetter the additional alternative remedy available to ‘consumer’ to seek remedy by instituting a ‘complaint’ for ‘deficiency’ or ‘unfair trade practice’ before the consumer protection fora established under The Consumer Protection Act, 1986. 27. Based on the discussion above, it is held that the consumer fora do have the jurisdiction to deal with the present case and hence, the consumer complaint cannot be dismissed on the ground of lack of jurisdiction by the consumer fora. 28. It is not in dispute that the tree that fell was old one and was in the premises of the platform and no precaution of cutting or pruning of the said tree was taken by the railways. The tree fell on the coolie, Mrs. Sindhu, injuring her finally leading to her death. As correctly held by the State Commission, this amounts to negligence and deficiency in service on the part of the railways. Therefore, we do not find any good reason to interfere with the order passed by the State Commission. 29. The appeal stands dismissed. All pending I.A.s, if any, stand disposed of. |
