RESERVED

        STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                   UTTAR PRADESH, LUCKNOW

                                       APPEAL NO. 1633 OF 2018

              (Against judgment and order dated 16-07-2018 in Complaint

          Case No. 242/2007 of the District Consumer Forum-II, Lucknow )

01.Divisional Railway Manager

     Northern Railway, Hazratganj

     Lucknow

02.Chief Train Ticket Inspector

     Charbagh, Northern Railway

     Lucknow

03.Chief Carriage and Wagon Inspector

     Northern Railway, Lucknow.

04.Chief Train Maintenance

     Northern Railway, Charbagh

     Lucknow

                                                                                              ...Appellants

                                                           Vs.

Smt. Amina Saleem

W/o Mohammad Saleem

R/o C-1/212, Sector G

Jankipuram

Police Station Madiyoun

Lucknow

                                                                                                 ...Respondent

BEFORE:

HON'BLE MR. RAJENDRA SINGH, PRESIDING MEMBER

HON’BLE MR. VIKAS  SAXENA, MEMBER

For the Appellant                 :    Sri Vaibhav Raj, Advocate.

For the Respondent              :    Sri Parshuram Kannaujia, Advocate.

Dated :  03-08-2022

                                                  JUDGMENT

                             PER MR. VIKAS SAXENA, MEMBER

This appeal has been filed under Section-15 of the Consumer Protection Act 1986 against the judgment and order dated 16-07-2018 passed by the District Consumer Commission-II, Lucknow in ComplaintCase No. 242/2007 Smt. Amina Saleem V/s Divisional Railway Manager, Northern Railway, Lucknow and others by which the learned

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District Consumer Commission partially allowed the complaint and awarded Rs.1,05,000/- with other legal expenses to the complainant.

The brief facts giving rise to the complaint as stated by the complainant are that the complainant was pregnant at the time of incident and she was commuting Delhi from Lucknow for her treatment at All India Institute of Medical Science, New Delhi. On date 08-01-2007 she was travelling in Train No. 2229 on Ticket No. 59944602 in Coach No. 5.9 and Seat No. 33 LB and 36 LB was allotted to her. The complainant has stated that the shutter of window was broken in front of her seat due to which cold wind was continuously blowing in to the compartment directly towards her which caused a great discomfort to her. She complained the matter to TTE present in the coach and shown to him but he did not help her in any manner. By the continuous cold wind the complainant became ill and she has to incur expenses for her treatment. The complainant instituted this complaint for damages of Rs.1,50,000/- for her physical and mental discomfort.

The opposite parties appellants submitted their written statement during the disposal of complaint and denied the fact of broken glass and shutter in the compartment. It is also contended by them that the window of the coach in question was not missing and broken and as such the allegations of the complainant are absolutely false and without any basis. The complainant did not bring this matter to the notice of conductor of the coach during her journey. The opposite parties contended that the complainant is to be put on strict proof of the same. It is also stated by them that a false complaint has been made by the complainant as no such grievance was brought to the notice of the conductor/TTE in the course of journey. A complaint on 09-01-2007 was made by her before Deputy SS at New Delhi station on which the matter was enquired into by the guard on duty Sri Ushman Ahmad, who after enquiry found the complaint without any basis as the glass and shutter of the alleged windows were intact and in a proper position. The coach in question was part of Train No. 2229 Lucknow Mail. The whole train is duly maintained and thoroughly checked by the concerned authorities and they found all the windows of the coach in question were in fact in proper position.

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It is further contended that the falsity of complaint will be evident from the fact that the initial complaint made by the complainant on 09-01-2007 at New Delhi station she said that no TTE came in the coach all through the journey while in para 7 of this complaint an affidavit supporting it the complainant has said that she made a complaint to the TTE in course of journey. The opposite parties have also contended that the complaint is barred under the law before the Forum in view of the provisions contained under Section 13 and Section-15 of the Railway Claims Tribunal Act 1987 and the matter can be adjudicated within the provisions of Railway Claims Tribunal Act as to exclusively by the said Tribunal. The opposite parties have prayed that the complaint being absolutely false and fabricated and it is liable to be rejected with costs.

The learned District Consumer Commission after giving opportunity of hearing to both the parties allowed the complaint partially.

Being aggrieved the Divisional Railway Manager, Northern Railway preferred this appeal and has prayed to set aside the judgment and order dated 16-07-2018 in the complaint and the judgment is bad in the eyes of law against the weight of evidence and against provisions of settled law. It is further stated in the memo of appeal that the complaint filed by the complainants for the compensation for inconvenience caused due to negligence of railways is barred by law , which excludes the jurisdiction of  the Consumer  Commission/ Forum.

          We have heard the learned Counsels on behalf of both the parties.

In this case the appellant has refused to honour the claim of the complainants on the ground that the remedy sought in the complaint is barred by Section 15 and Section 13 of the Railway Claims Tribunal Act 1987. This is contended by them that reliefs asked for by the nine complainants before the District Consumer Commission for the compensation for inconvenience suffered by her during her journey due to negligence of Railways, is fully covered under Section 13 of the Railway Claims Tribunal Act 1987 and the  Section 15 of the same act bars jurisdiction of all  Courts and authorities other than Railways Claim Tribunal in respect of the prayers sought in the complaint for adjudicating and granting the same reliefs. Therefore, it is clear that the provisions of Section

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13 read with Section 15 of the Railway Claims Tribunal Act 1987, are need to be examined for the rival contentions in respect of the jurisdiction of Consumer Redressal Agencies.In view of the case pleaded in the memo of appeal the core question required to be decided in this appeal is that -

whether the complaint regarding refund of railway fare is maintainable before the Consumer Fora or not.

 This question was raised before the learned District Consumer Commission and the Forum ultimately arrived at the conclusion that the District Consumer Commission has jurisdiction to entertain the complaint and allowed the same.

For considering the plea taken by the appellant in the memo of appeal it is found necessary to deliberate over Section 15 of the Railway Claims Tribunal Act 1987 which is reproduced as below:-

“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 ¹ [sub-sections (1), (1A) and (1B)] of section 13.“

From the perusal of the Section 15 it is revealed that the jurisdiction of any other court or any authority, other than Railways Claim Tribunal has been excluded in relation to the matters referred to in Sub-section (1) and Sub-section 1(A) of Section 13 of the Railway Claims Tribunal Act, 1987. Section 13 of the same Act has been given hereunder:-

13. Jurisdiction, powers and authority of Claims Tribunal. (l) 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 82A of the Railways Act or the rules made thereunder; and

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(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    [(1A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of section 12A 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 claim 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)1 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.

Again on considering the Section 13 of the Railway Claims Tribunal Act 1987 it may be observed that the case of the complainants is covered under Section 13(1A) of the above Act as the complainants have claimed compensation on the ground of inconvenience and trouble caused to her due to alleged negligence of railway authorities/officials when the coach wherein she was travelling was having broken window, in the train in which the complainants has reserved their berths for her journey, therefore, it is covered under the remedy provided under Section 13(1)(a) read with Section 124A of the Railways Act 1989.

The Section 124A of the Railways Act 1989 is again reproduced here.

 [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 entitle 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 this section by the railway administration if the passenger dies or suffers injury due to—

(a) suicide or attempted suicide by him;

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(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 the said untoward incident.

Explanation.—For the purposes of this section, “passenger” includes—

(i) a railway servant on duty; and

(ii) 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.]

  Thus 124A of the Railways Act 1989 provides that in course of working of a railway any untoward incident occurs, such as would entitle a passenger who has been injured due to any neglect or default on the part of the railway or its staff the passenger can claim compensation for the loss occasioned by any ‘injury’ as a result of such untoward incident. In this particular matter the case of the complainants comes under the compensation claimed for their injury caused to them due to negligence or default by railway or its officials when their coach was not attached in the train wherein they have booked their berths for their journey even after paying appropriate fare and charges for the same. This inconvenience or trouble may be characterized as a legal injury in legal sense. The term ‘injury’ in legal parlance is quite vide and covers all types of harms, inconvenience and troubles by default of any other person.

In  'Clark PLC dictionary of legal terms and idioms'  the definition of ‘injury’ has been given as-

Injury is a comprehensive term for any wrong or harm done by one person to another person’s body, right, reputation or property and is an interference with an individual legally protected interest. A civil injury is any damage done to person or property i.e precipitated by a breach of contract, negligence or breach of duty.

Similarly the definition of injury given by dictionary of Gerald N. Hill and Kathelin T Hil (copy right @ 1981-2005) is  as below-

• Any harm done to a person by the act or omission of another. The injury may include physical hurt as well as damage to reputation,

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dignity, loss of legal right or breach of contract. If a party causing the injury was either wilful or negligent, then he/she is responsible and liable for payment of damages for the harm caused.

The aforesaid definition given by the legal dictionaries clearly indicates that the complainants in this particular case have sought compensation for the infringement of their legal right to travel in the compartment with a broken window which has been reserved by them by paying an appropriate consideration for the same and this inconvenience or trouble comes within the ambit of the legal term ‘injury’ defined under Section 124A of the Railways Act and, therefore, comes within the exclusive jurisdiction of the Railway Claims Tribunal in view of Section 13 of the Railway Claims Tribunal Act 1987 and therefore the jurisdiction of civil courts or other authorities including Consumer Fora is barred by virtue of Section 15 of the Railway Claims Tribunal Act 1987.     

The same view was followed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of  Northern Railway, through its G.M. V/s Dr. N K Singla   reported in II(2016) CPJ 642 (NC). In this case the complainant booked a circular tour ticket for journey in 3AC class for two adults by paying appropriate charges. The complainant found that he had been overcharged for the aforesaid ticket and there was no train having 3AC coaches yet the railway issued the ticket by charging for 3AC class. Consequently the complainant had to suffer in parching hot conditions of Rajasthan in the month of July. The complainant sought refund the difference between the charged fare of 3AC and fare of an ordinary train. The Hon’ble National Commission decided that the complainant filed the complaint for refund of the excess amount was not maintainable before the Consumer Fora and dismissed the complaint with liberty to the complainant to approach Railway Claims Tribunal for redressal of his grievance.

This view was again reiterated by the Hon’ble National Commission in the case of The General Manager, Northern Railways and others V/s Dau Dayal Chaturvedi reported in 2010(3) CPR 81(NC). In this case the complainant reserved a special train for journey of various religious places and deposited a sum of Rs.60,000/- for the said purpose. The complainant and other passengers found that special train consisting of different types of

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bogies and there were other matters of inconvenience caused to them during the journey as there was no water facility etc. Moreover due to negligence of railway authorities one lady passenger met with a fatal accident and died. The complainant sought compensation. The Hon’ble National Commission decided in this case that a bare reading of the provisions of Section 15 and 13 of the Railway Claims Tribunal Act 1987 the claim for refund of fare or excess fare etc. and compensation due to injury to a passenger could be made only before the Railway Claims Tribunal Act and not before any other court or forum like Consumer Forum.

Considering the Sections 13, 15 of Railway Claims Tribunal Act 1987 read with Section 124A of the Railways Act 1989 and in light of the aforesaid decisions of Hon’ble National Commission, New Delhi, and in view of on the above discussion, the bench reaches on the conclusion that in this complaint the complainant has sought compensation for infringement of her legal right as the railway authorities did not keep their promise to provide her safe, comfortable and convenient journey , this relief  clearly comes within the purview of Section 124A and within exclusive jurisdiction of Railway Claims Tribunal and on the basis of Sections 13 and 15 jurisdiction of Courts or other authorities other than a Railways Claim Tribunal, have been barred and therefore the relief claimed by the complainants cannot be granted by the District Consumer Commission or any other Consumer Fora. The complaint deserved to be dismissed for want of jurisdiction. By the impugned order the learned District Consumer Commission has allowed the complaint, assuming the jurisdiction, therefore, the judgement and order is liable to be set aside and the appeal deserves to be allowed.

                                       ORDER

The appeal is allowed. The judgment and order of the District Consumer Commission is set aside and the complaint is dismissed.

Let copy of this order be made available to the parties as per rules.

The Stenographer is requested to upload this order on the website of this Commission today itself.        

           ( Shri Rajendra Singh )                             ( Vikas Saxena )

          Member                                                    Member                                                                                 

          Pnt

          Court-2