IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 03rd day of June, 2020
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
Sri. K.M. Anto, Member
C C No. 227/17 (filed on 11/10/17)
Petitioner : Visakh Visiwanadh,
S/o. Viswanadh,
Kochukunnathu (H),
Perissery P.O.
Chengannoor, Alappuzha.
(Adv. Kamala Ramanath)
Vs.
Opposite Parties : 1) Union of India through
General Manager,
Southern Railway,
Chennai.
2) Divisional Manager,
Southern Railway,
Divisional Office,
Thiruvananthapuram.
(For op 1 and 2 Adv. A.J. Dominic)
O R D E R
Sri. V.S. Manulal, President
On 17/03/2016 the complainant was travelling in a passenger train which was started at 5.45 pm from Kottayam to Chengannoor railway station. He was sitting near the window and when the train reached nearly Chingavanam the window shutter dropped and struck on his right hand and due to that his middle finger was damaged and nail was removed. The petitioner immediately got down from the train at Chingavanam station and reported the incident to the Station Master’s room. He was sent to nearby hospital and from there he was referred to Bharath Hospital, Kottayam. He was treated at Bharath hospital and his nail was removed. At the time of incident he was doing IPC
course, Chartered Accountancy and registered for the examination to be held on 3rd May 2016. He was also doing B.Com 2nd year in Kerala University and remitted the examination fee for 2nd year examination. Due to the injury sustained he could not attend both the examinations. The window shutter dropped and struck on his right hand due to the deficiency in service dereliction of the duty of the mechanical engineering and negligence of the railway authority. Due to instants the permanent disability caused to the petitioner and he cannot bent or fold, especially the hand to right, ought to do anything as usual. The opposite party is liable to pay compensation of Rs.1,50,000/- for the loss and sufferings incurred to the petitioner.
On receiving notice from this Forum opposite party appeared before the Forum and filed version.
The complaint is not maintainable. That train indicated was Kottayam – Quilon passenger train in untoward incident which caused injury and damages to the complainant by fall of window shutter did not happen on 17/03/2016 in Kottayam – Quilon passenger train which started journey from Kottayam at about 5.45 pm. The railway authorities did not have any proper and authentic intimation or report with respect to the alleged incident. As the complainant was travelling under platform ticket, he was not a genuine passenger.
The Kottayam – Quilon passenger train was kept by the railway authorities under proper maintenance and care, as usual on 17/03/2016. The train arrived at Kottayam railway station at 10.45 hrs as an incoming train. During the resting time of 7 hours the train as a whole was checked and necessary maintenance work was carried out, platform turn round attention was given, and brake releasing, watering, locking of shutters and cleaning were done. The window shutter in all the coaches were pull down and kept locked. 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 shutter as all the shutters were in ‘closed down’ position. 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. Arun Kumar who is the senior Section Engineer, Coaching Depot, Southern Railway examined as Dw1 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.
- Whether the complaint is maintainable?
- Whether there is any deficiency in service from the side of opposite party?
- 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 (1st 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., 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 Hon'ble 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 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.”. Thus we are in the opinion that this forum has ample jurisdiction to entertain this complaint. Hence, the first point is found accordingly in favour 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 while he was travelling from Kottayam to Chengannoor on 17/03/2016 in Kottayam Quilon passenger train, which started journey from Kottayam Railway Station at about 5.45 pm, when the train reached nearby Chingavanam, window shutter dropped and struck on his right hand and due to that his middle finger was damaged. Ext.A2 is the season ticket issued to the complainant. Pw1 deposed that the incident was occurred on the deficiency in service and dereliction of duty of the mechanical engineer and negligence of the railway authority. On the other hand the opposite party pleaded that there was no deficiency or dereliction in duty from the officials of the opposite party. Dw1 deposed before the Forum that the train arrived at Kottayam railway station at 10.45 hrs as an incoming train and the train as a whole checked and necessary maintenance was carried out, platform turn round attention was given and break releasing, watering, locking of shutters and clearing were done during the rest time. The Dw1 is a Senior Section Engineer, Coaching depot at Ernakulam of Southern railway. He had deposed that they had carried out the maintenance of the train bearing No.56393 on the previous date ie. 16/03/2016 and further on 19/03/2016. The technician named Vijayajkumar has done the maintenance work of the train, though the opposite party deposed regarding maintenance work carried on 16/03/2016 and 19/03/2016, they did not adduce any evidence to substantiate their contention that the whole maintenance of the train was duly carried out on 17/03/2016 at Kottayam.
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 17/03/2016 in Kottayam - Quilon passenger train. They did not adduce any evidence to show that the shutter of the window was in a closed position at the time of birthing the train at platform. The pw1 deposed before the Forum that he had reported the incident before the railway police authority at Chingavanam. The Dw1 deposed that he is not able to say that whether the passenger opened the shutter or not. Ext.A1 medical survey proves that pw1 suffered injury on right middle fingure and he had undergone the treatment of the same. Ext.A3 proves that he has spent Rs.6,516/- for the treatment. Ext.A4 is the trip sheet of the taxi bearing KL-27-6373. The opposite party denied alleged incidents strongly. From the above discussion based on the available evidence we are of the opinion that pw1 has sustained injury by dropping of the window shutter on his right middle fingure while he was travelling in Kottayam – Quilon train and has undergone treatment for the same. The GD entry of the Kottayam railway police station dtd.07/03/2016 proves that the complainant has sustained injury by falling of the window shutter of the train No.56393, which was due to the deficiency and dereliction of the duty of the opposite party.
No doubt, the complainant had suffered much mental agony and sufferings due to the said act of the opposite party for which opposite party is liable. Considering the facts and circumstances of the case we are of the opinion that a compensation of Rs.50,000/- will meet the ends of justice. In the circumstances we allow the complaint and pass the following order.
- We hereby direct the opposite party to pay Rs.50,000/- (Rupees Fifty Thousand only) as compensation.
- We also direct the opposite party to pay Rs.2,500/- as cost of litigation.
Order shall be complied with within a period of 30 days from the date of receipt of Order.If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.
Dictated to the Confidential Assistant, transcribed and typed by her,
corrected by me and pronounced in the Open Forum on this the 03rd day of June, 2020
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Apendix
Witness
Pw1 : Visakh Viswanath
Exhibits marked on the side of the complainant
A1 : Medical certificate dtd.28/03/16issued by Dr. Ajaikumar Kammath
A2 : Railway platform ticket
A3 : Series of bills
A4 : Trip sheet of vehicle
Witness
Dw1 : Arun Kumar A.
Exhibits marked on the side of the opposite party
nil
By Order
Senior Superintendent
