IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 08th day of July, 2020
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 125/2019 (filed on 29/07/2019)
Petitioner : Joy Thomas,
Gigi Villa,
Thykattusserry,
Kurisummoodu P.O.
Changanacherry – 686104.
Vs.
Opposite Parties : 1) Divisional Railway Manager,
Southern Railway,
Housing Board, Thycaud,
Thiruvananthapuram – 695014.
2) Station Master,
Railway Station.
Kottayam.
(For op 1 and 2, Adv. A.J. Dominic)
O R D E R
Sri. Manulal V.S. President
The case of the complainant is as follows:
The complainant was working as head of the Chavara branch of federal bank. On 25-2-2019 while the complainant travelled by train no. 56305 , Kottayam -Kollam passenger to Karunagappaly when the train reached Karunagappaly station , all on sudden the window shutter came off the hinges and fell on the tip of the middle finger of his right hand and due to that his finger nails were torn off and finger got badly crushed. The complainant immediately got down from the train at Karunagapplay station and rushed to nearby hospital and got first aid treatment. There after he was treated at St.Thomas hospital Changanaseerry and immediate surgery was conducted with K-wire and wound was sewn up. Complainant was treated as inpatient there and discharged on 28-2-2019. Due to the injury sustained he was forced to take leave for 10 days. The complainant had to undergo a very difficult period due to the unexpected leave and long listing of pending works to be attended prior to his retirement. The window shutter dropped and struck on his right hand due to the non maintenance of the coaches and deficiency in service and negligence of the railway authority. The opposite party is liable to pay compensation of Rs.50, 000/- for the loss and sufferings incurred to the petitioner.
On receiving notice from this Forum opposite parties appeared
before the Forum and filed version.
The complaint is not maintainable. The complainant did not sustain any injury by dropping of window shutter while he was travelling on 25-2-2019. Any untoward incident which caused injury and damages to the complainant by fall of window shutter did not happen on 25-2-2019 in Kottayam – Quilon passenger train which started journey from Kottayam . The railway authorities did not have any proper and authentic intimation or report with respect to the alleged incident.
The Kottayam – Quilon passenger train was kept by the railway authorities under proper maintenance and care. The periodical maintenance work and safety checking of the train were properly and carefully carried out on 21-2-2019 just before the train started its journey on 22-2-2019 from kottayam. On 25-2-2019 while the train was having journey all window shutters with latches and stoppers in all coaches was in good and intact condition. The maintenance of the train in all respects was properly made before it was berthed for journey. There was no possibility for dropping down of any of the window shutters. On 25-2-2019, soon after the train ended its journey at Kollam, the train was brought to the maintenance yard for the next periodical maintenance work and checking. At that time also it was found that all the safety and amenity fittings were in good and intact condition. All the window shutters in all the coaches were in good condition and without any fault and damage. It was the choice of the passenger to put the window open by raising the shutter. When the passenger raised the shutter it was for him to secure the shutter with the tower bolts and latches to prevent from falling down. The locking mechanism considering the consist of antigravity spring arrangements, two tower bolts and gravity latch stoppers. If any untoward incident happened on account of falling of window shutters which was raised by the passenger, it was absolutely because of the fault of the passenger for locking the shutter improperly at the raised position. There is no deficiency or dereliction of duty on the part of the railway authority. The complainant did not sustain any injury and damage. The complainant does not have any cause of action against the opposite party. The complainant is not entitled for compensation with respect to the alleged damages. The subject matter is not a consumer dispute and Forum does not have jurisdiction to adjudicate the complaint.
In order to prove his case complainant was examined as pw1 and Ext.A1 to A4 were marked. One Mr. A. Budharaj Meena, who is the senior Section Engineer, Coaching Depot, Southern Railway filed proof affidavit in lieu of chief examination from the side of opposite party. No documentary evidence adduced by the opposite party.
On the evaluation of complaint, version and evidence on record we would like to consider following points.
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service from the side of opposite party?
3. Relief and costs?
Point No.1
The opposite party contented in the version that the complaint is not maintainable on the ground that the Consumer Dispute Redressal Forum has no jurisdiction to adjudicate the complaint. The Hon’ble National Consumer Disputes Redressal Commission has discussed this contention in Western Railway Vs.Vinod Sarma (1 st Appeal No.459 of 2015). In that case the apex Commission held that a plain reading of the provisions quoted above from the Railway 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., and 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 Honble Supreme Court in their order in Secretary, Thirumurugan Co-operative 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”.
18. In State of Karnataka Vs. Vishwabarathi House Building Co-op. Society, I (2003) CPJ 1 (SC), the Honble Supreme Court observed, that by reasons of the provisions of Section ‘3’ of the Act, it is evident that remedies provided there under are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the CivilCourts or other statutory authorities.
19. 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.”.
Thus we are in the opinion that this forum has ample jurisdiction to entertain this complaint. Hence, the first point is found accordingly in favor of the complainant.
Point No.2 and 3
For the sake of convenience we would like to consider Point No.2 and 3 together.
The specific case of the complainant is that on 25-2-2019 while he was travelling in Kottayam- Quilon passenger train, when the train reached nearby Karunagappally, window shutter dropped and struck on his right hand and due to that his middle finger was damaged. Pw1 deposed that the incident was
occurred due to the deficiency in service and negligence of the railway authority. Ext.A1 discharge summary proves that pw1 suffered injury on right middle finger and he had undergone the treatment of the same. Though in Exhibit A1 it was stated that the history of the occurrence as window fall on finger while travelling in train, the complainant did not produce the train ticket. Ext.A2 series proves that he has spent Rs.18397.50 for the treatment. Ext.A4 is the x- ray of the injured finger. On the other hand the opposite party pleaded that there was no deficiency or dereliction in duty from the officials of the opposite party. The maintenance of the train in all respects was properly made before it was berthed for journey. The witness of the opposite party who is a Senior Section Engineer, Coaching depot at Trivandrum of Southern railway stated in affidavit that they had carried out the maintenance of the train bearing No.56305 on 21-2-2019 and further on 25-2-2019 soon after the train completed its journey.
The specific case of the opposite party is that untoward incident which caused injury and damage to the complainant by fall of the window shutter dropped did not happen on 25-2-2019 in Kottayam - Quilon passenger train. The Pw1 deposed before the forum that the shutter was in close position and the
complainant himself raise the shutter and locked this same in right position. The Pw1 deposed that he had not reported the incident to the railway authorities. The opposite party denied alleged incidents strongly and pleaded that if any untoward incident happened on account of falling of window shutters
which was raised by the passenger, it was absolutely because of the fault of the passenger for locking the shutter improperly at the raised position. The witness of the opposite party further submitted that the said train was checked on 25-2-2019 itself for periodical maintenance and all the windows and shutters were a good condition. It is admitted by the pw1 that he himself raised the window shutter and locked he did not adduced any evidence to show that the locking mechanism of the shutter was not properly worked. He further deposed that the incident happened when the journey completed approximately 50 kilometers . From the above discussion based on the available evidence we are of the opinion that the complainant has not succeed to prove his case with cogent evidence and the complaint is liable to be dismissed.
In these circumstances the complaint is dismissed without cost.
Pronounced in the Open Forum on this the 08th day of July, 2020.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R, Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant
Pw1 : Joy Thomas
Exhibits marked on the side of the complainant
A1 : Copy of discharge summary dtd.28/02/19 by St.Thomas Hospital,
Chethipuzha.
A2 series : copy of hospital bills (9 nos.) by by St.Thomas Hospital,
Chethipuzha and A.M. Hospital, Karunagappally,
A3 : X-ray film.
A4 : print out of finger.
Exhibits marked on the side of the opposite party
Nil
By Order
Senior Superintendent
