IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Date of filing : 03/12/2018
Date of order : 30.06.2022
PRESENT:
Shri.D.B.Binu President
Smt. Sreevidhia T.N Member
CC.No.83/2018
Between
COMPLAINANT
Jenny T.S., S/o.T.A Sebastian, Thottamkara House, Kaippattoor,
Kalady P.O., Ernakulam-683 574
(By Adv.Sanil Jose, Chamber No.924, KHCAA Chamber complex, High Court of Kerala, Kochi-31)
Vs.
OPPOSITE PARTY
The Southern Railway, represented by the General Manager, GM Office, Chennai-Thruttani-Renigunta Hwy, NGO Annexe, George Town,
Chennai-600 003
(O.p rep. by Adv.Millu Dandapani,Dandapani Associates, “Thrupthi”, T.D.Road North End, Cochin-682 035)
O R D E R
D.B.Binu, President
1) A brief statement of facts of this complaint is as stated below:
On 27/2/2016, the complainant was travelling from Angamali to Kozhikode in Train No.16305, vide Ticket No.07818988. He was sitting on a side seat. At about 0900 hours, when the train was passing near Karikkad, the shutter of the window next to which he was sitting suddenly fell and left hand of his was crushed. The co-passengers immediately pulled the chain and the train came to a halt. Station Master of Pattambi station was then informed and he arranged an ambulance when train reached Pattambi station. The complainant was removed from the train and he was taken by ambulance to Sevana Hospital and Research Centre, Pattambi. After receiving first aid from there, he was treated as outpatient at Nila Hospital, Palakkad the same day and at Community Health Centre, Kalady the next day. On account of the accident, the complainant sustained serious injuries namely crush injury and fracture of middle and index finger of left hand, precisely crush injury of left index finger and comminuted fracture of middle finger, left hand. The complainant had excruciating pain in his left hand. The physical and mental trauma undergone by him is unexplainable. The incident happened only due to deficiency in service and inadequacy in the quality, nature and manner of performance which is required to be maintained by the opposite party in running the subject train. The inadequacy in maintaining the shutters in proper working and good locking condition is glaring on the part of the opposite party. The complainant lost considerable days of his work. He is working as Akshaya Coordinator under Government of Kerala. The loss sustained by him though cannot be equated in terms of money, the same can be fairly fixed at Rs.1,00,000/-. the complainant had been subjected to great mental trauma and acute pain and suffering and hence he is entitled to a total compensation of Rs.5,00,000/-. For the purposes of court fee, the complainant is limiting his claim to Rs.4,00,000/-.
A lawyer notice was sent to the opposite party by the counsel which was replied by raising untenable reasons. The adamant stand of the opposite party has to be put down with a heavy hand and compensation needs to be ordered to be paid to the complainant. The Southern Railway had not taken any precautionary measures to protect the passengers' property or person. When a passenger buys a ticket and travels in the compartment, it is the duty of the railway authorities to provide adequate security to the person and property of those passengers. The Railway is responsible for the life as well as the property of its passengers. Since there is gross negligence and deficiency of service by the opposite party, it is liable to compensate loss suffered by the complainant due to the negligence of its staff.
In the above-mentioned facts and circumstances complainant prays :
a) An order directing the Opposite Party to pay an amount of Rs.4,00,000/- to the complainant as compensation;
b) An order directing the Opposite Party to pay an amount of Rs.10,000/- to the complainant as cost of the proceedings; and
c) such other orders as are deemed fit and proper in the facts and circumstances of the case.
2) Notice
Notice was issued from the Commission to the opposite party and the opposite party received the notice, entered appearance and filed their version.
3) Version of the Opposite Party
The Opposite Party submits that the complainant will not fall under the definition of "Consumer under the Consumer Protection Act, 1986 and therefore this commission lacks jurisdiction to entertain the complaint. The appropriate forum to entertain any such complaints/allegations/claims against the railway authorities in regard to the administration/ supervision/ control or any deficiency of services of the railway authorities is vested with the Railway Claims Tribunal as per the provisions of the Railway Claims Tribunal Act, 1987.
This Commission lacks territorial jurisdiction to entertain the complaint. As per the averments in the complaint, the cause of action to the above complaint aroused near a place named Karikkad, which is a village in Thrissur District. Moreover, the address of the opposite party included in the party array is also carrying its business/operation from Chennai, Tamil Nadu which also falls well beyond the jurisdictional limits of the commission. Therefore, on this sole ground this complaint is ought to be dismissed in limine.
The complainant has attempted to raise certain vague allegations to establish deficiency of service on part of this opposite party. There has been no instance of any negligence on part of this opposite party as alleged. Even if the complainant had to suffer any injury, loss or damages it is the direct result of the complainant's gross negligence.
This opposite party is not aware of any of the facts and circumstances narrated in the complaint after the complainant had board down the train and therefore denies the same. It is submitted that as per the allegations of the complainant, the concerned coach was examined by the officials at the next train examination point at Calicut, on the same day itself. A report was also obtained as per which no defect was noticed in the shutter securing mechanism of the windows in the concerned coach. It is also pertinent to point out that all the coaches of the concerned train had undergone primary maintenance on 26.2.2016, at Trivandrum Central yard. On scrutiny of maintenance records also, there were no defects found. After the arrival of the train at the base depot at Trivandrum Central on 01.3.2016 after the scheduled journeys, the concerned coach Latches were in working order.
After the arrival of the train at the base depot at Trivandrum Central on 01.3.2016 after the scheduled journeys, the concerned coach was intensively examined and found that all latches were in working order. The coach was put in to service again in another train and continued its service till 12.03.2018 before sending it to Periodical Overhauling and no defects whatsoever could be noticed by this Opposite Party or his officials.
The Opposite Party submits that the window shutters on all coaches (Non- A/c) are secured with the help of strong tower bolts on both sides. It is the duty of the passengers to secure the window shutters by locking tower bolts on both sides to prevent the shutter from falling down during their journey. Further, as an additional security, a gravitational spring mechanism is also attached to the window shutters for the safety of the passengers. Therefore, it is undoubtedly clear that unless and until a passenger fails to lock both the tower bolts, there is absolutely no chance of the window panels falling down.
It is also worthwhile to state that, this opposite party being one of the largest public sector enterprises and being the largest employer always tries to adhere to the at most and best standards of service on all material items adhering to the needs and requirements of passengers and therefore it is impossible to deploy a person to lock all the shutters, in each coach for each and every passenger. Further, the passengers do change from station to station and their preferences also do change from person to person regarding the choice of closing the windows or keeping it open.
The legal maxim "Volenti Non Fit Injuria" has direct implications on the facts of this case. If at all such an injury had ever happened to the complainant, in a moving train, despite the fact that there was a locking mechanism which was under the pure discretion and management of the complainant himself, the alleged damage was a result of the express or implied consent of the complainant by his act of not locking the simple and safe locking mechanism directly under his control and management. The ruling in Hall Vs Brook lands Auto Racing Club (1993) 1 K.B.205 is quite relevant here.
The complainant had boarded the train from Angamali Railway station and had already traveled up to Karikkad without having any complaint or accidents from the window shutters. By this time the window shutter must have been closed and opened many a times and no accident had happened. This shows that there was no deficiency of service on the part of any of the employees of this opposite party. Further, it is to be noted that no passengers have made any complaints about the window shutter either other than the complainant on any of the other journeys in which the same coach were used without noting any defect.
The complainant has not suffered any mental agony, acute pain sufferings. The above said allegations are complainant. The complainant is not entitled or an imagination of the compensation as claimed for. No damage whatsoever has caused to the to get any monetary complainant. No cause of action arose to file a complaint has aroused within the jurisdiction of the commission as alleged by the complainant. The intention of the complainant is nothing but to tarnish the image and reputation of these opposite party in the society and to grab un entitled monitory benefits from this opposite party. The commission may in the interest of justice be pleased to dismiss the Complaint with exemplary cost to this Opposite Party.
4. Evidence
List of Documents submitted by the complainant.
1. True Copy of the report of Station Master, Pattambi dated nil.
2. Travel Ticket No.07818988 dated 27/2/2016 for travelling from
Angamali to Kozhikode (original).
3. Outpatient card issued from Nila Hospital, Pattambi, dated 27/2/2016
4. Outpatient ticket issued from Community Health Centre, Kalady,
Date 28/2/2016.
5. Discharge Summary issued from " Pattambi, dated 27/2/2016 (original). Sevana Hospital & Research Centre,
6. Lawyer notice dated 18/7/2017
7. Reply notice dated 30/10/2017 issued on behalf of the opposite party
by Adv. T.R. Rajagopalan .
Upon notice from this Commission, the opposite party appeared and filed their version. From 31.05.2018 onwards the complainant is continuously absent before the Commission. Even though a letter was sent to the complainant he did not turn up. Proof Affidavit not filed by the complainant despite giving ample chance to file the same. The Opposite Party filed the version. The main contention of the complainant is that there is inadequacy in maintaining the shutters in proper working and good locking condition is glaring on the part of the opposite party. The complainant has not turned up before this Commission even after giving repeated notice. There is no possibility for the Commission to establish the merit of the case in the absence of the complainant adducing evidence to prove the same. Hence the case is dismissed.
O R D E R
In the result, the complaint is found liable to be dismissed and the complaint is accordingly dismissed. No cost.
Pronounced in the open Commission on this the 30th day of June 2022.
Sd/-
D.B.Binu, President
Sd/-
Sreevidhia T.N., Member
Forwarded by Order
Assistant Registrar
Assistant Registrar
