SMT. RAVI SUSHA : PRESIDENT
complainant fled this complaint U/Sec.12 of Consumer Protection Act alleging negligence on the part of the opposite party No.2 and prays for getting a direction to pay Rs.5,00,000/- on account of loss suffered to the complainants due to untimed death of Premarajan and mental agony suffered by them besides a sum of Rs.5,00,000/- as compensation and Rs.50,000/- in account of transportation of dead body, funeral and other expenses.
The brief facts of the complainant's case is that
The 1st complainant is the wife of late Premarajan and 2 to 4 are the children of late Premarajan. That in order to see 4th complainant at Chennai, late premarajan reserved a journey cum reservation 2nd class ticket with PNR No.472/040123 and ticket No.57852295 in Train No.12602 Chennai mail on 25/11/2014 from Kannur to Chennai central. That he reserved his ticket on 11/11/2014 and he was allotted lower berth No.LB60 in coach No.S6 of the said train. that on 25/11/2015 he was board Kannur Railway station to Chennai in the above mentioned train and as per his reservation in S6 coach. That on the way to Chennai, when the train about to reach at Vadakara he felt sever chest pain and reported to the TTE, the 2nd opposite party in the compartment, one Ashokan K Kuniyil a co-passenger in the same compartment witnessed and heard the request of the deceased seeking medical aid. At that moment the concerned TTE was not take any care and neglected the words of the deceased. After the train was reached at Quilandy his pain became severe and he need emergent treatment, but the 2nd OP did not take any care in giving medical aid or any first aid to the deceased. After that the train was reached at Calicut railway station his pain was very serious and he became unconscious then also the 2nd Op did not providing any medical aid to the late Premarajan that the railway administration is bound to provide medical aid care and protection to its passenger. Here the railway administration totally failed , neglected and defaulted in providing medical aid to the deceased Premarajan. . That when the train was about to leave at Calicut railway station , the co-passengers in the compartment was quarrelled and immediately pulled the alarm chain and stopped the train and the RPF officers came to the compartment and took him to PVS Hospital Calicut , But unfortunately he was died in the hospital. At the time of death late Premarajan was 60 years old and having good health. The death was caused solely due to the rash and negligent act of 2nd OP in giving medical assistance on time. The 2nd Op is working under the 1st opposite party. The opposite parties are fully responsible for the care and protection of passengers including on time medical assistance, because in a running train it is not possible to a passenger to get such a medical aid or assistance without the intervention of the opposite parties. If the deceased have getting medical aid , when he complained to the TTE about the chest pain and difficulties proper treatment could have save his life indeed. Thus there is deficiency of service on the part of opposite parties. Hence the complaint filed this complaint for getting reliefs.
After getting notices, the opposite parties filed their vakalath and version through learned counsel Adv.K.Vinod Raj. The opposite parties denied the entire averments made in the complaint and they admitted the a ticket booked by the late Premarajan from Kannur to Chennai central for his journey by train No.12602 of 25/112014 in berth No.60 in S6 coach. Opposite parties submitted that when the train left Vadakara railway station, a passenger approached him and conveyed that Sri.Premarajan is not well. Then based on that information, 2nd OP contacted the commercial controller at Palakkad Divisional office for arranging ambulance and RPF staff to care of the patient and as per his message, the commercial controller at Palakkad informed the information centre at Kozhikode station to make necessary urgent medical care to the passenger and when the train reached at Kozhikode railway station , all the arrangements were made with ambulance and RPF officials carried the passenger to the PVS Hospital, which is the best hospital near to the railway station and further the staff informed late Premarajan’s relatives on the way to Calicut that in this connection. The train had an extra detention of 10 minutes . The 2nd OP further contend that because of the timely intervention and communication of 2nd OP’s timely medical attention was given to the deceased and he was alive more than 5 hours in the hospital. There is no deficiency of service on their part. Hence the opposite parties prayed the complaint is tobe dismissed with cost .
The points to be decided in this case are
1. Whether this complaint is maintainable before this Commission?
2.Whether there is any negligence or deficiency of service on the part of 2nd opposite party?
3. Quantum of compensation and cost?
In this case there is no dispute regarding to the facts such as the husband of 1st complainant late Premarajan had booked a ticket from Kannur to Chennai Central for his journey by the train No.12602 on 25/11/2014 under PNR No. No.472/040123 and as per the ticket he was having a confirmed berth No.60 in S6 coach and 2nd OP was on duty by that train on that day in Coach No.6. Further the H/O 1st opposite party Premarajan's cause of death is Cardiac arrest at PVS hospital, Railway station road,Kozhikode.
Complainant's allegation is that when the said train about to reach at Vadakara, the deceased Premarajan felt sever chest pain and reported to the 2nd opposite party in the compartment, but the 2nd OP was not taken any care and totally neglected the words of the deceased. Further when the train reached at Quilandy his pain became very severe and he had badly , needed emergent treatment, but the 2nd OP has not taken any step for a medical aid or to give any first aid to the deceased. Further alleged that when the train reached at Calicut railway station , his pain became very serious and he became unconscious. Then also the 2nd OP did not provide any medical aid to him. According to the complainant when the train was about to leave at Calicut , the co-passengers in the compartment was quarrelled with 2nd OP and they pulled the alarm chain and after stopping the train, the RPF officers came to the compartment and took him to PVS Hospital Calicut , at PVS hospital , he died on the same day, and the death was caused solely due to the negligent act of the 2nd OP in providing medical assistance to late Premarajan
For proving the allegations , 1st complainant, the wife of the deceased was examined as PW1, Dr.Jayarajan, Cardiac Surgeon, Director of PVS Hospital who issued death summary of deceased Premarajan, from PVS Hospital was examined as PW3, one Mr.Asokan who was present in S6 coach and involved in this incident was examined as PW2 and marked Exts.A1 to A9. Ext.A1 is reservation ticket, Ext.A2 is receipt issued from PVS Hospital, Ext.A3 is death summary of deceased Premarajan, Ext.A4 is ambulance service cash receipt. Ext.A5 is bill. Ext.A6 is bill, Ext.A7 is legal heir certificate.Ext.A8 is death certificate.Ext.A9 is case sheet of Premarajan from PVS Hospital. All the three witnesses were cross examined by the opposite parties counsel.
Opposite parties main contentions rebutting the allegations of the complainants are that when the train left Vadakara railway station, a passenger (PW2 Ashokan) approached 2nd OP and conveyed that Sri.Premarajan is not well. Then based on that information, 2nd OP contacted the commercial controller at Palakkad Divisional office for arranging ambulance and RPF staff to take care of the patient and as per his message, the commercial controller at Palakkad informed the information centre at Kozhikode station to make necessary urgent medical care to the passenger and when the train reached at Kozhikode railway station , all the arrangements were made with ambulance and RPF officials carried the passenger to the PS Hospital, which is the best hospital near to the railway station. The 2nd OP further contend that because of the timely intervention and communication of 2nd OP timely medical attention was given to the deceased and he was alive more than 5 hours in the hospital after the arrival of the train at Kozhikode.
For proving above said contentions, from the side of opposite parties DW1, 2nd OP, DW2 one Mr. P.V.Anilkumar ASIPF/CLT and DW3, Mr.Vinod G Nair, Inspector ,RPF Kozhikode were examined and marked Exts.B1 to B5. Ext.B1 is Duty journal book from 25/10/2014 to 22/12/2014. Ext,B2 is statement given to Senior Divisional Commercial manager by 2nd OP. Ext.B 3 is the message received by Commercial Controller. Ext.B4 is the statement of the Inspector RPF Kozhikode in this regard and Ext.B5 is message book of RPF from 28/8/2014 to 1/12/2014(original)
The parties have not submitted their written arguments, we heard the oral arguments placed by the learned counsels Adv. N Jayarajan for the complainants and Adv. Vinod Raj for the opposite parties and perused the records. Both the counsels argued in detail.
Point no.1: Learned counsel for the complainant firstly argued about the maintainability of the complaint that this complaint is maintainable before this commission because late Premarajan was a passenger in the train and his death was caused due to the deficiency in service on the part of TTE in the train. The learned counsel produced a judgment II (2007) CPJ 116 of Karnataka State Consumer Dispute Redressal Commission Bangalore in South Central Railway &Anr. vs. Kamalabai & Anr in which the Hon'ble state commission held that ' as per the provisions of sections 123,124,123A of the Railway Claims Tribunal Act,1987. The complaint filed by the complainant before the District Commission is maintainable in law” The learned counsel appearing for the opposite parties made only formel argument with regard to this point. Hence we are of the view that this complaint is maintainable before this Commission. The 1st point found accordingly.
Point No.2: The crucial question to be decided s whether there is any negligence or latches on the part of 2nd opposite party in providing medical aid, care and protection to the deceased passenger and death occurred to that passenger is due to the latches on the side of 2nd OP?
The learned counsel for the complainants argued mainly that the cause of death of late Premarajan was exclusively due to the latches on the part of 2nd OP as a TTE he had made medical aid to the patient only after 45 minutes late, after realising the ailment of the passenger, if the 2nd OP given medical aid to the deceased even at Koilandy, his life could have been saved.
The learned counsel appearing for the opposite party vehemently argued that there was no negligence or latches happened on the part of 2nd OP as a TTE , he informed the matter to his superior officers as early as possible and made arrangements at Kozhikode railway station with ambulance and RPF officers for giving medical aid to the deceased from a super speciality hospital and further as the patient was a known diabetic and cardiac patient, his life could not have saved. Further the death occurred was not due to the negligence on the part of opposite parties.
From these two arguments we have to evaluate and analyse the pleadings, contentions ,oral and material evidences brought before us.
For that at first there is difference of opinion regarding , from where the passenger felt chest pain. According to the complainant, the passenger felt chest pain when the train about to reach at Vadakara railway station and the passenger himself informed to the 2nd OP and PW2, a passenger in the same compartment witnessed and heard his request. But 2nd OP's version is that when the train ;left Vadakara station PW2 approached him and conveyed that Sri.Premarajan is not well. On analysing oral evidence before us, we can see that PW1( wife of late Premarajan) was not present along with the deceased. So even though she deposed as per the pleadings in the complaint, we cannot accept it. The only independent and eye witness evidence available here is the evidence of PW2, a co-passenger. On scrutinising PW2's evidence we can see that PW2 boarded in the train from Vadakara station and informed to the 2nd OP after 10 minutes from Vadakara Station and also in cross examination he deposed that ഞാൻ വടകരയിൽ നിന്നാണ് കയറിയത്. A¶v sNs¶ sabn 25þ11þ2014 Xo¿Xn bm{X sN¿phm³ h¶t¸mÄ HcmÄ asämcmfpsS aSnbn Xe sh¨v InS¡p¶pmbncp¶p. AhÀ cpt]cpw {]mbapÅ BÄ¡mcmWv. InS¡p¶ BÄ¡v Xosc kpJapmbncp¶nà TTE tbmSv ]dªt¸mÄ AbmÄ h¶v tcmKnbpsS ssI]nSn¨v t\m¡nbn«v t]mbn. tImgnt¡mSv F¯nbt¸mÄ H¶pw ]dbmsX Cd§nt¸mbn. ]ns¶ tImgnt¡mSv \n¶v s{Sbn³ hnSm³ t\m¡nbt¸mÄ Rm\pw aäpÅhcpw N§e ]nSn¨v hen¨v s{Sbn³ \nÀ¯n¨p. AXn\ptijamWv RPF ImÀ .h¶v Abmsf sImpt]mbXv.
The depositions are against the pleadings in the complaints. Since PW2 is the only co-passenger who was examined in this case as witness of the complainants, we are inclined to believe his evidence. So it is confirmed that message given to 2nd OP about the illness of the deceased passenger Sri.Premarajan was only after the train left Vadakara railway station.
Next we have to analyze that whether after getting information by the 2nd OP as TTE of the concerned compartment took necessary steps. In the version opposite parties contended that based on the information, 2nd OP contacted the commercial controller at Palakkad Divisional office for arranging ambulance and RPF staff at Kozhikode to take care of the patient and as per his message the commercial controller at Palakkad informed the information centre at Kozhikode station to make necessary urgent medical care to the ailing passenger and when the train reached at the Kozhikode station, all the arrangements were ready with ambulance and RPF officials carried the patient to the PVS Hospital which is the best hospital near to the station.
PWs 1&2 denied this contentions. PW2 deposed in the box that hSIc \n¶v
tImgnt¡mt«¡v 40 an\näv DmIpw. hSIc Ignªm sImbnemn ss{]häv Bip]{Xn Dv.
Kh¬saâv Bip]{Xnbpw Dv.
The opposite party's counsel cross examined him in detail. But he sticked on the point that the train was stopped after pulling the alarm chain. Opposite parties for proving their contention relying documents Exts.B1 to B4. On analysing Ext.B1 to B4 we can realize that the 2nd OP had informed the message to the Palakkad Commercial control officer for making arrangement of RPF officers and ambulance at Kozhikode railway station. But when he informed in time etc are not mentioned in any of those documents. Anyway it is not a disputed matter that the patient was taken to hospital for giving medical aid from Kozhikode station and the train had suffered an extra detention of 10 minutes at Kozhikode station.
The complainant's another main allegation is that when the train reached at Quilandy station, the 2nd OP did not take any care in giving medical aid or any first aid treatment to the deceased passenger. With regard to this allegation, we would have to find out why the 2nd OP didn't availed the first opportunity which was the next nearest station from Vadakara to give medical aid or any first aid treatment to the deceased passenger Sri.Premarajan and whether there is any hospital near to Quilandy station and further for that whether there is any latches from the part of 2nd OP in giving medical treatment to the deceased for saving his life. For deciding this point we have to analyse the oral evidence of PW2(Ashokan) and PW3 Dr.Jayarajan, Director of PVS Hospital and documentary evidence like Ext.A3 death summary of deceased Premarajan and Ext.A9 case sheet. Firstly on scrutinising PW2's evidence, he would depose that hSIc \n¶v tImgnt¡mt«¡v 40 an\näv DmIpw. hSIc Ignªm sImbnemn ss{]häv Bip]{Xn Dv. Kh¬saâv Bip]{Xnbpw Dv. That means there are Govt. and private hospitals at Quilandy . PW3 Cardiac Surgeon , deposed that there are several hospitals in Quilandy and first aid CPR could have given from any hospital. PW1 also deposed that there are hospitals at Koilandy. PW3,doctor further deposed that if a cardiac person gets treatment in right time if the heart attack is for the 2nd and 3rd time his life could have saved and in this case also if he is brought in proper time his life could have saved and if the patient is diabetic and the heart attack is occurring for 3rd time his life could have saved if treatment given in proper time. In this case the deceased was a known diabetic and cardiac patient. According to DW3, doctor even though the patient is a diabetic and cardiac patient, if gets treatment in right time, his life could have saved and the first aid CPR could have given from any hospital. Here as PW3 is a Cardiac surgeon, his evidence cannot be discarded. His evidence should be given due weightage Hence from the doctor's sworn statement and PW2's statement it is evidenced that at Koilandy there are hospitals. The TTE could have ,made arrangement for giving the deceased even the first aid CPR at any of the Koilandy hospitals.. A heart attack patient normally need emergent first aid treatment. Here the 2nd OP made arrangements only at Kozhikode station, ie about 40 kms away from Vadakara station. According to the 2nd OP, Koilandy station is a small station and there was no facility in that station. But he could have even arranged a doctor for giving his first aid treatment, because a heart attack patient need emergent medical aid. We have no opinion that it might have saved his life but giving emergent medical aid will certainly improve the condition of the patient. OP.2 deposed in the box that on getting information the patient was unconscious. Then he would have taken more serious. But the ailing passenger got treatment(even first aid) only after 45 minutes. So even we assumed 2nd OP made arrangements at Kozhikode station, there is some latches on his part in giving treatment to the deceased Premarajan as early as possible.
On the testimony of DW1(2nd OP) it can be revealed that he is the custodian of Ext.B1 to B4 documents and at the time of getting information the patient was unconscious, further the running time from Vadakara station to Koilandy station is only 17 minutes and he knows that there are Govt. hospitals and private hospitals at Koyilandy and he had not taken any steps to board out the patient at Koyilandy. According to him, it is against railway rules. But not produced any such railway rules or loco pilot diary before us for substantiating his evidence.
On analysing the depositions of DW2(RPF Officer), we can see that the railway made arrangements (ie, ambulance) and RPF officers at Kozhikode Railway station
On the testimony of DW3 Inspector RPF Kozhikode Railway station, it can be seen that Ext.B5 merge book was marked through him and deposed that there was train extra detention of 10 minutes at Kozhikode station. During cross examination about the veracity of relevant page of Ext.B5 he has deposed that he is not the custodian of Ext.B5 and he does not know about the authenticity of that document.
The 2nd opposite party had no pleadings that he had visited the patient in interval and watched his condition. That is also a latches from his side. Mere given a message to Palakkad station for making arrangement in Kozhikode station is not sufficient in case of a cardiac patient especially a senior citizen. The 2nd point found accordingly.
From the forgoing discussions , we are of the opinion that there is deficiency on service on the part of 2nd OP in doing his duty. 2nd OP is an employee of 1st OP. Since 1st opposite party is the principal employer of the 2nd opposite party, 1st opposite party also is liable for the deficiency in service of 2nd opposite party.
Pont.No.3: For fixing the quantum of compensation , we have to consider the loss of income occurred to his legal hires and status of them and mental agony . In this case the complainants pleaded that late Premarajan was a gulf returned person and was working as real estate broker and 2nd to 4th complainants are students. For proving those points and income of late Premarajan , the complainant did not produce any piece of evidence. So we cannot assess those points. He was 60 years of age at the time of death. Considering the age for the loss of normal income and mental agony of the complainants, we are allowing Rs.2,00,000/- as compensation for the deficiency in service on the part of the opposite parties and Rs.25000/- as cost of the proceedings of this case and other expenses incurred to the complainants.
In the result the complaint is allowed in part. The opposite parties are directed to pay Rs.2,00,000/- as compensation to the complainants and Rs.25,000/- as cost of the proceedings of this case and other expenses incurred to the complainants. The order is to be complied with within one month from the date of receipt of this order. Failing which the complainants are at liberty to realize the amounts as per the provisions of Consumer Protection Act 2019.
Exts:
A1- reservation ticket
A2 - - death summary of deceased Premarajan,
A4 - ambulance service cash receipt.
A5- bill.
A6- bill,
A7-legal heir certificate
A8- death certificate.
A9 - case sheet of Premarajan from PVS Hospital
B1-Duty journal
B2-statement given to Senior Divisional Commercial Manager OP.2
B3- statement given by -do-
B4-statement of Inspector RPF Kozhikode
B5-Message book of RPF(original)
PW1-Prabha.T- complainant
PW2-K.Ashokan- witness of complainant
PW3-Dr. Jayarajan, Cardiac Surgeon- do-
DW1- P.Gopalakrishnan-OP.2
DW2-P.V.Anilkumar- witness of Ops
DW3-Vinod G Nair- do-
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
eva
/Forwarded by Order/
SENIOR SUPERINTENDENT
