PRESIDENT 

1)        By this complaint the Complainant has prayed that it be held and declared that the Opposite Party is guilty of deficiency in service and unfair trade practice as per the provisions of the Consumer Protection Act, 1986 (refer to as the Act).  It is further prayed that the Opposite Party be directed to pay Rs.16 Lacs to the Complainant being beneficiary as compensation for the reckless and negligent act and omissions by the Opposite Party towards the passenger.  The Complainant has also prayed to pay Rs.1 Lac to him as compensation towards mental agony and harassment. It is further prayed that the Opposite Party be directed to pay Rs.2,16,000/- to the Complainant as interest @ 9% on the above amounts from the date of cause of action till filing the complaint and further interest @ 9% from the date of filing of the complaint till the payment is made.  It is also prayed that the Opposite Party be directed to pay Rs.30,000/- to the Complainant as expenses towards this proceedings and other incidental expenses.  

2)        According to the Complainant, his father on 15/011/2006 had availed the services of the Opposite Party for consideration and during the journey he expired due to the deficiency of service of the Opposite Party. The Complainant is the son of the deceased and the beneficiary and as such, he is consumer within the meaning and definition under Sec.2(1)(d)(ii) of the Act.  It is submitted that the Opposite Party is guilty of deficiency of service and adopted unfair trade practices within the meaning and definition of “deficiency” and “unfair trade practices” under Sec.2(1)(g)(o) & (r) of the Act. 

3)        It is alleged that the deceased father of the Complainant Shantilal M. Nandu was an employee of Dena Bank and he had taken voluntary retirement sometime in 2002 from the Bank. According to the Complainant the deceased in spite of his retirement used to regularly take the 6.28 a.m. fast local from Boriwali to Churney Road to go to Mafatlal Bath.  It is the case of the Complainant that on 15/11/2006 he took the slow local of 5.52 a.m. from Borivali to Churchgate to go to H.R. College as he was working as lecturer in the said college.  On the same date the deceased father of the Complainant took the 6.28 a.m. fast local from Borivali to Churney Road.       

4)        According to the Complainant, his father was regular practitioner of Yoga Exercise and he used to do it in the train at Borivali enroute to Churney Road.  It is alleged that on 15/11/2006 when his father started the journey by local of 6.28 a.m. somewhere between Borivali and Kandivali Station he lost consciousness and fainted. On the day of incident he was traveling next to the guard’s cabin as usual.  When his father lost consciousness and fainted the fellow passengers tried to revive him by sprinkling water on him and massaging his body but he did not respond.  It is alleged that when the train reached Kandivali Station the passengers informed the guard who was there in the ad-joining cabin. The Guard instead of making arrangements to alight the passengers at Kandivali to obtain immediate medical treatment for the father of the Complainant moved the train.  It is alleged that meantime a fellow passenger took out the mobile phone from the father of complaint’s bag and pressed the contact button. As the Complainant’s name starts with ‘A’ the passenger dialed the Complainant’s number and enquired about his relations with the Complainant’s father. The Complainant informed that he is the son of him.  The passenger informed to the Complainant that his father lost consciousness and fainted.  It is alleged that the Complainant informed the passenger to tell the authorities to get his father alighted and medical facilities be made available to him immediately by the railway personal. At that time the Complainant’s train was about to reach Mahim Station.  It is alleged that in view of the hearing of the father’s condition the Complainant immediately got down at Mahim Station and took the next train towards Borivali. The railway authorities failed to alight the father of the Complainant until the train had reached Goregaon. It is alleged that no medical facilities provided to the father of the Complainant till Goregaon. According to the Complainant, his father was put on stretcher by the Opposite Party at Goregaon Station and brought him to Platform No.1 since, his father’s train was on plat form No.4.  According to the Complainant, he received a phone call at about 6.45 a.m. from the Station Master of Goregaon Station about the condition of the Complainant’s father and also asked him that the Complainant should reach at his office as soon as possible.  According to the Complainant, at the relevant time he was at Andheri Station and he told the Station Master that he would be reaching Goregaon in 10 Minutes.  

5)        It is alleged that the Complainant reached Goregaon station at about 6.55 a.m. and when he approached and enquired to the Station Master he told that they had shifted his father to Borivali Bhagwati Hospital by another local train which left Goregaon at about 6.50 a.m. The Complainant was asked to sign some register and his father’s mobile was given back to him.  The Complainant enquired with the Station Master as to why medical treatment was not provided at Goregaon itself before he was shifted to Borivali for which the Station Master failed to give any response.  It is alleged that the railways had a duty and responsibility to take care but they recklessly failed to carryout their duties.  It is alleged that the Opposite Party did not follow the general directions given in Writ Petition No.2405/01 of Bombay High Court in the case of Dr. Mehta Santosh N. V/s. The General Manager of Central Railway.  It is submitted that by not shifting the Complainant’s father to hospital at Goregaon itself and sending him to Bhagwati Hospital, Borivali at 15 km. away the Opposite Party did not follow the directions in the above write petition.  It is alleged that when the Complainant and his father-in-law reached at Bhagwati Hospital at 7.30 a.m. at the same time the auto carrying the father of the Complainant reached the hospital.  It is alleged that he saw that his father was lying in the floor of the back sit in a place where passengers keeps their feet.  It is alleged that the Opposite Party also did not follow the other directives issued by the Hon’ble Bombay High Court to provide an ambulance/taxi at the railway station so that the victim would immediately shifted to the nearest hospital.  It is submitted that because of the improper arrangement made by the Opposite Party to bring the Complainant’s father at Bhagwati Hospital his father did not receive timely treatment.  It is submitted that the life of the father of the Complainant could have been saved if the timely treatment was provided to him.  It is submitted that the Doctor of Bhagwati Hospital declared the Complainant’s father dead when he was taken there. According to the Complainant, the death of complainant father occurred due to the negligence of the Opposite Party.  The copies of the Complainant’s father’s hospital papers are marked as Annexure ‘C-1’.   

6)        According to the Complainant, on the next day of the incident of death of the Complainant’s father the Complainant made inquiries with the co-passengers and porter Raju who accompanied the father of the Complainant from Goregaon to Borivali Station.  They told that his father was alive till he placed in the auto on the way to the hospital.  It is alleged that the acts on the part of the Opposite Party are not only negligent but also recklessly negligent.  The Complainant after obtaining the details as to how his father expired, he wrote the letter to the General Manager of Western Railway on 18/11/06 and 11/12/06 but he did not receive any reply. The copies of which are marked as Annexure ‘C-2’. The Complainant also sought information from the Opposite Party under Right to Information Act, by an application dtd.13/03/07.  The Complainant received evasive and misleading answers to his queries from the Opposite Party by letter dtd.29/03/07.  The copies of the reply received from the Opposite Party and application submitted by the Complainant are marked as Annexure ‘C-3’.  The copy of the season ticket of the Complainant’s father is marked as Annexure ‘C-4’.  It is alleged that because of not providing medical assistance to the Complainant’s father as required he died, that amounts to deficiency in service and unfair trade practice on the part of the Opposite Party.  It is alleged that the Opposite Party caused the Complainant grave harassment and mental agony.  The Complainant has therefore, prayed the reliefs as per para 1 of this order.   

7)        The Opposite Party contested  the  complaint by filing written statement.  It is contended that this Forum has no jurisdiction to entertain the complaint in view of Sec.13 & 15 of Railway Claims Tribunal Act, 1987.  It is contended that as per Railway Medical Volume - I -3^rd addition 2000 page no.14, Sec.C, para 204 (D) states that it is not incumbent on the railway to provide medical aid to passengers who take ill.  Such assistant is invariably rendered in practice as a matter of curtsey to the customer.  It is alleged that in the post mortem report the cause of death mentioned by Post Mortem Surgeon – P.M. Shinde is that cause of death is due to myocardial infraction with pulmonary Oedema (Natural).  It is submitted the deceased died because of Cardiac arrest and it is always on the spur of movement and in railway compartment or running train, one may not get any medical aid promptly.  The death by cardiac arrest is not unusual.  It is common phenomena and a person who is getting heart stroke can be given very little help, if he is traveling in train.  It is contended that the Opposite Party is not insuring the travelers at large, undertaking railway journey and the death of passenger was on account of heart stroke and not on account of omission on the part of railways.  It is contended that the allegations as averred in the provision  u/s.124 or Sec.124(A) of the Railway’s Act and the Opposite Party can not made liable for the death of passenger Shantilal M. Nandu.  According to the Opposite Party from the affidavit of the Complainant it is clear that the Complainant was not present in the train alongwith the deceased Mr. Shantilal and therefore, assertion in the complaint the passengers had asked for medical aid to the guard of the train is the hear say assertions and cannot be relied upon.  It is contended that there is no direct evidence produced by the Complainant to prove any deficiency in rendering service on the part of the Opposite Party in the matter of providing medical aid or negligent act on its part.  

8)        According to the Opposite Party the judgment of the Hon’ble High Court Bombay in Writ Petition relied by the Complainant is applicable in case of accident and bomb blast and the same cannot be said applicable in the present case.  It is denied that the Opposite Party is guilty of deficiency in service and adopted unfair trade practice within the meaning and definition under Sec.2(g)(o) & ( r) of the Act.  It is contended that the Railway Authority had taken prompt action and there is no delay and deficiency in service.  It is alleged that Mr. Shantilal was taken at Bhagwati at Borivali at the request of relative of Mr. Shantilal as he was residing at Borivali and it would be convenient to them and therefore, the Station Master Goregaon immediately issued memo and sent him to Bhagwati Hospital for medical aid.  It is denied that the Act on the part of the Opposite Party was negligent.  It is denied that the Complainant is entitled to compensation on account of mental agony and harassment. It is contended that there is no evidence to support the contentions/ allegations in the complaint.  No affidavit of the co-passenger is filed to prove the allegations. It is contended that the Complainant is not entitled for any relief/compensation as claimed in the complaint and the complaint is liable to be dismissed.  

9)        The Complainant has filed affidavit in proof of evidence.  The Opposite Party filed affidavit of K.V. Desai, Assistant Commercial Manager.  Both the parties filed their written arguments. We heard Shri. Uday Wavikar, Ld.Advocate for the Complainant and Shri. S.M. Sayed, Ld.Advocate for the Opposite Party.  

10)      The Ld.Advocate for the Complainant relied the observations in the following cases – 

            1)  Ghaziabad Development Authority V/s. Balvirsingh, Civil Appeal No.7173 of 2002 decided on 17/03/04 by the Hon’ble Supreme Court of India.

            2)  General Manager, Northern Railways V/s. M.S. Shalini Kapoor, 2007, CTJ  823 (CP) (NCDRC).

            3)  Union of India V/s. Dindigul District Consumer Protection Association, I (2006) CPJ 186.

            4)  Vinaya Vilas Sawant V/s. Union of India, I (2008) CPJ 13 (NC).

            5)  Sumatidevi M. Dhanwatay V/s. Union of India, reported in AIR 2004 SC 2368.      

            6)  Dr. Mehta Santosh N. V/s. General Manager, Central Railways, Writ Petition No..2405 of 2001 and orders passed in it on 08 & 22/02/2006 and 16/07/2006 and 16/08/2006 and 14/09/2006 by the Hon’ble Bombay High Court.  

The Ld.Advocate for the Complainant submitted that the Opposite Party did not follow the general directions of the Hon’ble High Court in Write Petition No.2405/2001 for providing medical treatment to the father of the Complainant to the nearest hospital.  He made submission that he was unnecessarily taken to Bhagwati Hospital – Borivali.  He also made submission that because of non providing immediate medical treatment to the father of the Complainant he succumbed to death.  He thus, submitted that there is deficiency on the part of the Opposite Party.  He made submission that this Forum has jurisdiction to entertain the present complaint in view of the authorities relied by him.  He also made submission that as observed in the case of Ghaziabad Development Authority V/s. Balwirsingh (Cited Supra) the provisions of the Consumer Act, enables a consumer to enable and empower the commission to redress any injustice done.  He made submission that as observed in the said case, if the Commission/Forum is satisfied that a Complainant is entitled to compensation for loss or injury or for harassment or metal agony then after recording a finding it must direct the authority to pay compensation and also direct recovery from those found responsible for unpardonable behaviour. Shri. Wavikar the Ld.Advocate for the Complainant made submission that in this complaint the Complainant has proved that the Opposite Party was negligent in providing the immediate medical treatment to the father of the Complainant and thereby he died.  He thus, submitted that the proper and suitable compensation be awarded in favour of the Complainant directing the Opposite Party to pay the same.  

11)      The Ld.Advocate for the Opposite Party S.M. Sayed submitted that in view of the provisions of Railway Claims Tribunal Act, 1987, this Forum has no jurisdiction to entertain the present complaint.  He made submission that the directions given in the Written Petition 2405/2001 by the Hon’ble Bombay High Court are applicable in case of accident and bomb blast and not to the facts of present case.  He also submitted that for the death of passenger in the course of railway journey railway cannot be held responsible because Indian Railway is not ensuring the travelers at large undertaking railway journey and the death of passengers.  He made submission that the Hon’ble State Commission, Maharashtra in First Appeal No.207/2006 decided on 16/01/08 in the case of Divisional Manager, Central Railway V/s. Smt. Asha Abhimanu Mulade in similar type of case held that death of the passenger was on account of heart stroke and not on account of omission on the part of railways.  He made submission that so simply because life of deceased Shantilal got curtailed because of heart stroke that would not mean that railways should compensate the family of the deceased passengers for all the benefits deprived by the relatives.  Shri. Sayed Advocate also relied the observations in the case of Prem Jain V/s. Union of India decided by the Hon’ble State Commission of Punjab reported in 1999 CCJ 656 and submitted that in the said case also it was held that as there is no direct evidence produced to prove any deficiency in rendering service on the part of Railways in the matter of providing medical aid or negligent act on the Opposite Party and the complaint filed for getting compensation by the legal heir of deceased passenger came to be dismissed.  He thus, submitted that the Complainant is not entitled for any reliefs as claim and the complaint is liable to be dismissed.       

12)      In view of the submissions made by both side advocates first of all it is necessary to be seen that whether the jurisdiction of Consumer Forum is specifically barred by the latest central enactment, i.e. the Railways Claims Tribunal Act, 1987 and the relevant sections under the Act.  It is also necessary to be considered the observations relied by the advocate for the Complainant in the case reported in 2007 CTJ 823 (CP) (NCDRC) and I (2008) CPJ 13 (NC) (Cited Supra) wherein the Hon’ble National Commission held that Consumer Fora can exercise jurisdiction under the Act in cases when there is no specific bar while considering this aspect it is necessary to be considered that the Hon’ble National Commission in the case of Rakesh Patralekh V/s. Union of India reported in II(2010) CPJ 234 (NC) in a case of compensation claimed by the Complainant to the tune of Rs.2,84,40,000/- for untoward incident of Complainant’s father, boarding the train fell in between track as train suddenly moved with heavy jerk and the leg of the father of the Complainant in that case was required to cut below knee, died due to excessive bleedings, held that claim for untoward incident payable by Railway Claims Tribunal and Consumer Fora has no jurisdiction to entertain complaint.  The Hon’ble National Commission in para 6 of its order have observed as under –

            “On a conjoint reading of the provisions contend in the aforesaid sections. 123(c), 124(A) of the Railway Act, 1989 and 13 & 15 of he Railway Claims Tribunal Act, 1987 would show that on establishing of Railway Claims Tribunal any claim for “untoward incident” payable under Sec.124A by the Railway Administration shall be entertained only by the Tribunal and no Court or other authority including the Consumer Forums shall have or to be entitled to exercise jurisdiction, powers or authority in relation to such claim. Obviously, present complaint is not legally maintainable before this commission.  In view of the bar of jurisdiction created by the said Sec.15, the decision in FA No.2209/2004, Smt. Vinaya Vilas Sawant V/s. Union of India, of this Commission and in Kishorelal V/s. Chairman, Employees’ State Insurance Corporation (2007), 4 SCC 579, on which reliance has been placed will not be of any help to the Complainant.  Impediment of medical officer and SHO, Mokana Railway Police as Opposite Party No.4 & 5 will not make any difference as in substance the claim made is in respect of untoward incident which is entertainable by the Railway Claims Tribunal. Complaint is, therefore, dismissed being not maintainable under the Act.”

            In view of the latest decision of the Hon’ble National Commission in the aforesaid case wherein the case relied by the Advocate for the Complainant reported in I(2008) CPJ (NC) is held as not applicable in such type of complaint filed for compensation against the railway administration for untoward incident during the journey before this Forum and the same is not maintainable under the Act. We therefore, hold that this complaint is not maintainable before this Forum under the Act.

13)      Even assuming that the present complaint can be entertained by this Forum in our view the evidence which is placed on record by the Complainant alleging the deficiency on the part of the Opposite Party even if it taken into consideration we are of the view that the Complainant has miserably failed to prove that when he received the first communication on his mobile when he was at Mahim and his father was alive till he was brought to the Bhagwati Hospital, Borivali by the persons of the Opposite Party.  The Complainant has not filed any affidavit of co-passenger who was traveling with the deceased father of the Complainant or any supporting evidence to prove that for not providing immediate treatment to the father of Complainant by the Opposite Party he expired.  It is the fact that the Complainant was not accompanying when his father sustained the heart stroke. The Complainant did not witness what steps had been taken by the Opposite Party after the Complainant’s father sustained the heart stroke.  The Complainant in the complaint has alleged that on next day of the death of Complainant’s father he made enquiries with the co-passengers and porter by name Raju who accompanied his father up to Bhagwati Hospital and who told the Complainant that his father was still alive when he placed in the auto for going to hospital, however, the Complainant did not produce the evidence of co-passenger or the Porter Raju  to prove that the father of Complainant was alive till he was brought to Bhagwati Hospital in Auto.  In our view only on the basis of the affidavit of the Complainant which is based on hearsay evidence it cannot be held that there was negligence on the part of the Opposite Party in not providing immediate medical treatment to the father of the Complainant.  Under the Act the complaint is to succeed on establishment of deficiency in rendering service on the part of the Opposite Party or proof of any negligence act causing loss or damages suffered by the Complainant.  In our view the said burden which is on the complainant, has not been discharged by him. In our view the Complainant has utterly failed to prove the same.  It is also pertinent to note that the Complainant immediately after the death of his father had specifically stated before the Police that his father had sustained heart attack prior to 7 years and he was under treatment for 2 years.  He also stated to the police that his father expired prior to admitting at Bhagwati Hospital.  He further stated that he has no complaint or grievance against anybody. In the cause of death certificate the death of the father of the Complainant is shown as “Death due to -  Myocardial Infraction with palmary Oedema (natural).  Thus, we are of the view that as observed in para 8 by the Hon’ble State Commission of Maharashtra in First Appeal No.307/2006 (cited Supra) “For the death of the passenger in the course of railway journey, railway cannot be held responsible for the loss remaining service of the employee.  Because Indian Railway is not insuring the travelers at large undertaking railway journey and death of passengers was on account of heart stroke and on account of omission on the part of railways.” We therefore, hold that in view of these observations and in the case of 1999 CCJ 656 (cited supra) as there is no direct evidence produced in this case to prove any deficiency rendering service on the part of the railways in the matter of medical aid or negligent act on the part of the Opposite Party, the Complainant has no case on merit to grant the reliefs claimed against the Opposite Party.         

14)      The submissions made by the advocate for the Complainant in view of the orders passed in Writ Petition No.2405/2001 (cited supra) and relying on other cases in our view cannot be said applicable to the facts of this case.  The death of father of the Complainant did not take place during the accident or bomb blast and therefore, the question of non compliance of those directions in this case are not at all attracted.  We hold that as the complaint itself is not maintainable before this Forum and on assumption of jurisdiction of this Forum as discussed above the Complainant has failed to prove any deficiency in service on the part of the Opposite Party and as such, the complaint is liable to be dismissed, leaving the Complainant, if so advised to approach Civil Court or Railway Claims Tribunal where evidence in detail can be produced by the parties.  In the result we pass the following order -                  

                                                              O R D E R

i.            Complaint No.93/2008 is dismissed being not maintainable under the Consumer Protection Act, 1986 and also on merits with no order as to cost.

ii.         The Complainant is however, at liberty  to  approach Civil  Court  or Railway Claims Tribunal for his redressal in the present complaint.    

iii.    Certified copies of this order be furnished to the parties.