Per Shri  Bhaskar B. Yogi – Hon’ble President.

1.       Complaint is filed by mother of the deceased claiming compensation on death of her son late Shri Anil Sitaram Bhandari due to deficiency in service. We are passing the order under section 39 read with Regulation 18 (5).

Brief facts of complaint is as under:-

2.       The deceased was identified as Anil Sitaram Bhandari, 29, resident of Dhanoli Tal. Salekasa, Dist. Gondia had gone to his in-laws house at Amgaon (Nansari) on 08/01/2020. Thereafter, on 09/01/2020, the deceased took a train ticket from Amgaon railway station to return to his home at Dhanoli. He boarded train no. 58820 (J) Jharsukada to Gondia passenger train at 8.50 pm, the train was over crowded and many people are in the coach in which the deceased was sitting and other passengers in the coach were crowded and standing in the space in the coach up to the door. The train then started running towards Dhanoli railway station and after reaching Dhanoli railway station, the deceased was hit by a passenger sitting near the gate while he was going towards the gate of the coach to get down at Dhanoli railway station.

3.       The driver of train no. 58820 (J) informed about the said incident to the Station Master of Amgaon Railway Station and the Station Master of Amgaon informed the Pointsman of Salekasa Railway Station and the Pointsman of Salekasa informed Police Station Salekasa. The Police Station Saleksa registered Marg No. 04/2020.

4.       It is said that the deceased had taken a railway ticket for the journey but the said ticket was lost at the time of the incident so the deceased was a bonafide passenger. Also, due to the fact that the railway administration had issued more tickets than the seats in the train, the said train was crowded with passengers and as there was no space for the passengers to sit on the benches in the train, the passengers had to sit wherever they could find a seat and sit and stand next to the door of the train. Thus due to laxity of the railway administration and failure in service, the death of the deceased was caused. But despite being aware of the said incident, the railway administration has not given compensation to the complainant under the Railway Act till date. The complainant prayed for compensation of Rs. 10,00,000/- (rupees ten lakhs) for accidental death and for mental and physical suffering Rs. 50,000/-. The complainant has not filed the said complaint in any other court claiming for the said compensation and prayed as :-

                                   1.       To allow her complaint.

2.       Rs.10,00,000/- (Rupees Ten Lakhs only) as compensation to be paid to the complainant from the date of occurrence of the cause of death i.e. 09/01/2020 till the amount is paid along with interest at the rate of 18%.

3.       Rs.50,000/- (Rupees fifty thousand only) for mental and physical suffering and Rs.15,000/- for cost of complaint should be ordered to be paid to the complainant.

4.       It is prayed that the Hon'ble Commission may pass  such other orders as may be deemed fit in favour of     the complainant.

5.       The opposite party filed their written version on 09.03.2022 and took defence that section 124-A expressly bar other authority to adjudicate the railway claim. Secondly the deceased does not possess valid and effective ticket at the relevant time. As such the consumer complaint is not maintainable. Lastly denied the contention of the complainant.

6.       Heard the argument of the both sides. Perused the documents filed on records. Our findings with reasons are as under :-

-// Findings with Reason //-

Issue No. 1:-

7.       Section 123. Definitions.—In this Chapter, unless the context otherwise requires,—

(a) “accident” means an accident of the nature described in section 124;

(b) ….

[(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.]

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.

124 A. 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;

(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.]

And

The Consumer Protection Act, 2019

Section (2) In this Act, unless the context otherwise requires,—

(11) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes— (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and (ii) deliberate withholding of relevant information by such person to the consumer;

8.       Complainant Ld Advocate argued on the point of deficiency in service as mentioned in pleading Para no. 2 that by selling tickets more than sitting capacity amounts to shortcoming or inadequacy in the quality, nature and manner of performance thereby causing death of the complaints son due to overcrowd. On other side ld. Adv for opposite party vehemently argued that this accident covers under definition of untoward section 123 (c) (2) hence this commission does not have Jurisdiction to decide the complaint.

9.       The Ld. Advocate for Opp. parties argued at length on this issue and place reliance upon ruling of Hon’ble Bombay High court in

(1) Union of India (UOI) vs Ashok Shankar Sarkale And Ors. Decided on 20 March, 2006

Wherein Hon’ble High court dealt with above issue in Para 8.

In view of the definition of "untoward incident" provided under Section 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. Therefore, the District Forum under the Consumer Protection Act, 1986, could not decide the dispute raised by the respondents. We are fortified in our view the decision of the Apex Court in the case of Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council; it is true that the Apex Court decided the claim for compensation arising out of a motor vehicle accident. The Apex Court held that the provisions of the Motor Vehicles Act, which is a special law, would prevail over Consumer Protection Act. In paragraph 7 of the said decision, the Apex Court has referred to a decision in the case of Union of India v. M. Adair Kalam H. 1993 C.P.J. 145(N.C), wherein the National Consumer Disputes Redressal Commission has held that it had no jurisdiction to entertain complaints of loss, destruction, damage or non-delivery of goods by railway on account of deficiency in service since such claims would fall under the Claims Act. In view of this, the Apex Court has observed that yet it was difficult to comprehend how the National Commission had exercised jurisdiction in the said case. In view of this, in our opinion, the District Forum has no jurisdiction to decide the claim for compensation arising out of the railway accident under the Act.

9. Learned Counsel appearing for the petitioners, in fact, does not dispute the liability of the Railways to pay the compensation for the death which happened due to untoward incident. In fact, the learned Counsel who appeared before the District Forum also did not dispute the liability of the Railways to pay compensation to the extent of Rs. 4 lakhs as per the Rail Accident and Untoward Incidents (Compensation) Amendment Rules, 1997 and has stated that the claimants were entitled for the same. In view of this, we are not relegating the respondents to file a fresh claim before the Railway Claims Tribunal.

-(emphasis supplied)

(2) II (2012) CPJ 503 (NC) National Consumer Disputes Redressal Commission, in UNION OF INDIA, WESTERN RAILWAY & ANR. Versus SHAKUNTALA NAGESHWAR PATIL

(Revision Petition No. 4002 of 2010 from Order dated 29.6.2010 in Appeal No. 316/2007 of Gujarat State Consumer Disputes Redressal Commission)-Decided on 19.3.2012

Heading:

Consumer Protection Act, 1986 Sections 2(1)(g), 21(b) Jurisdiction Death in accident with railways -District

Forum awarded compensation of Rs. 2,60,000 appeal - State Commission dismissed - Hence revision Complainant was ill-advised to approach Consumer Fora, the proper course for complainant was to pursue her remedy before appropriate appellate authority rather than to have approached Consumer Fora against order of Railways Accidents Claim Tribunal dismissing petition on ground of limitation Both Fora below committed grave error in entertaining the complaint - Impugned order set aside. [Para 3]

[Para 3]. …………… It would be clear from the perusal of the record that initially the complainant herself filed original petition before the Railways Accident Claims Tribunal, which was dismissed by the said Tribunal vide order dated 15.12.2004 holding that the original petition was barred by limitation. Having suffered from such an order, the complainant was ill-advised to approach the Consumer Fora; the proper course for the complainant was to pursue her remedy before the appropriate appellate authority rather than to have approached a Consumer Fora against the order of the Railways Accidents Claims Tribunal dismissing her petition on the ground of limitation. Having considered the matter it appears to us that both the Fora below have committed grave error in entertaining the complaint on the basis of the above factual and legal position.

10.     With utmost respect the ruling filed by Opposite Party is not applicable being the facts are different. The complainant relied upon Union of India vs. Rajiv Kumar Tondon case decided by State Commission of Chandigarh in FA 906 of 2012 wherein the in Para 6 “untoward accident” and deficiency in service has been discussed.

11.     We place our reliance upon the ruling of Hon’ble National Consumer Disputes Redressal Commission in FIRST APPEAL NO. 451 OF 2015 (Against the Order dated 22/12/2014 in Complaint No. 120/2012 of the State Commission Maharashtra) WESTERN RAILWAY THROUGH GENERAL MANAGER, Versus 1. VINOD SHARMA THROUGH HIS WIFE AND CONSTITUTE ATTORNEY, decided on Dated: 18th   January, 2017 where in the issue of jurisdiction again discussed from Para 5 to 19 and held

17. ……………… 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.

18.    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.

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”.

- (Emphasis supplied)

         Again in the ruling - Union Of India & Anr. vs Savitaben Sumanbhai Patel & Ors. REVISION PETITION NO.1725 OF 2009 decided on 5th May, 2011

         After discussion on same issue held in 

         Para 17. “Consumer Fora can exercise jurisdiction under the Act in cases when there is no specific bar. In Kishore Lal v. Chairman, Employees' State Insurance Corporation, the Apex Court has gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.” 

- (Emphasis supplied)

12.     In Present complaint death occurred due overcrowding which amounts to “deficiency in service” and does not amounts to “untoward accident”

          Even otherwise it is clear from the above that Section 100 of the Consumer Protection Act, 2019 provides additional remedy to the consumer and as such the consumer commissions are competent to entertain claims covered and filed before the consumer commission.

          In the instant case, the points of law are similar to above rulings. Therefore, following the above judgment of Hon’ble National Commission with similar conclusions, we are of the view that the present case is not barred by jurisdiction.  Therefore first objection is not tenable in view of above ruling and Issue No.1 is accordingly answered IN NEGATIVE.

ISSUE NO.2

13.     The accident is not denied and the document filed at pg. no. 11, 35 clearly shows accidental death due to Hemorrhagic and Neurogenic shock. The ruling filed by the complainant of Hon’ble Bombay High Court Nagpur Bench is squarely applicable in first Appeal no. 1075 of 2019 between Smt. Asha ad/o Sandesh Kale & ors vs. Union of India decided on 26.08.2022 allowed the Appeal by placing reliance upon judgment of Jharkhand High Court in case of Savila Khatun “thus if a person is travelling by  a train it is presumed that he/she is travelling with a valid ticket and onus lies upon the railway authority to prove that such person is not having a valid ticket and as such he/she is not a Bonafide passenger” Para 7 and Madras High court in case of S. Vijayalakshmi & ors holding that “the onus is strictly on the Railways to prove that the deceased was not a bona fide passenger” and “it is not possible for the legal heirs to produce the ticket or valid authority to travel in the train” Para 15.

            Accordingly Issue No.2 is answered IN AFFIRMATIVE.

14.     Assessment of compensation:-

            The complainant claim Rs. 10,00,000/- (Rupees ten lakhs) for this we perused the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016. (This is taken only for the purposes of assessment of compensation as guidelines )

          SCHEDULE (See rule 3) Amount of Compensation Payable in respect of Death and Injuries PART I For death, Amount of Compensation (in rupees) 8,00,000/-. Thus the complaint is allowed for death claim of Rs. 8,00,000/- and even the Hon’ble Bombay High Court at Nagpur Bench allowed appeal for Rs. 8,00,000/- is a recent judgment, the same is allowed with interest @ 6% p.a. from date of accident 09.01.2020 to be paid by opposite party to the complainant till realization and Rs. 10,000/- for metal agony. However we are not inclined to grant any legal cost due to failure of our direction dated 01.09.2022 and fail to assist the commission. The opposite party failed to settle the dispute at the earliest possible time despite knowledge of accident amount to deficiency in service.

          Hence following order:-

-// FINAL ORDER //-

1.         Complaint allowed for Rs. 8,00,000/- /-(Rupees Eight Lakhs only) with interest @ 6% p.a. from date of accident 09.01.2020 to be paid by opposite party to the complainant till realization and Rs.10,000/- for metal agony within 30 days. In default, the interest would be applicable @ 12 % from date of accident till realization.      

2.         Certified free copy of this order be provided to the parties as per Regulation 21.

3.       Additional sets of complaint be returned to the complainant and  original complaint along with documents be confined to record room