Per Shri A.Z.Khwaja, Hon’ble Presiding Member.
1. Appellant Nos.1 to 3 have preferred the present appeal challenging the judgment and order dated 30/01/2016 passed by the learned District Consumer Forum, Gondia, in Consumer Complaint No.CC/44/2014, by which the complaint filed by the appellants came to be partly allowed. (The appellant and respondent shall be referred by their original nomenclature).
2. Short facts leading to the present appeal may be narrated as under. :-
3. Complainant No.1 Dineshwari Chawalpane wd/o Chintesh Chawalpane is wife and complainant Nos.2 and 3 are the son and daughter of the deceased Chintesh Chawalpane. On 01/06/2012 complainant Nos.1, 2 and 3 were traveling alongwith the deceased from Raipur to Gondia by train and were to travel from Gondia to Balaghat by road. The deceased had also purchased one ticket of super fast train on 01/06/2012 and were traveling in Puri-Ahemadabad Express Train. The husband of the complainant No.1 was having ticket No.1804503 from Raipur to Gondia. Complainants have alleged that there was heavy rush in the train in all the general bogies and during the course of travel at Raipur, Durg and Rajanandgav the rush increased and more and more passengers entered in to compartment in which the complainant was traveling alongwith her husband. Complainant has further alleged that after Dongargarh the compartment in which the complainants were traveling was over crowded to such an extent that complainant and her husband Chintesh Chawalpane started feeling suffocation. Husband of the complainant also complained of loss of breath and was restless and so other passengers made available some space and helped him to sit in the passage between the two doors. After the train reached Gondia, some passengers alongwith the G.R.P. Gondia informed the concerned railway doctors and the railway doctors came on the platform and also saw the husband of the complainant, but by the time of arrival of the railway doctors the husband of the complainant died and no medical relief could be given to him when he was taken to him at KTS Hospital, Gondia. Body of the deceased was sent for postmortem and the viscera was forwarded for chemical analysis to Regional Forensic Science Laboratory, Nagpur, but it was found that there was no poison in the viscera and husband of the complainant had died due to suffocation due to over crowding in the train compartment. Complainant has contended that since prior to the death of her husband was traveling in the railway she was a Consumer and the railway department had not taken the necessary care and precaution regarding the safety of passengers including the husband of the complainant and so the O.P. had indulged in deficiency in service amounting to an Unfair Trade Practice. Complainant therefore lodged complaint before the learned District Consumer Commission, Gondia.
4. O.P. has appeared in response to notice and also filed its written version on record. O.P. has not disputed the death of Chintesh Chawalpane and further that the case was also registered by G.R.P. Gondia. O.P. has categorically denied that there was any negligence on their part or there was lack of medical treatment to the husband of the complainant. O.P. has also categorically denied that the complainants were entitled for compensation of Rs.4,00,000/- as claimed. On the contrary O.P. has taken a specific plea that the complaint itself was not tenable in law as the complainants were having an alternate remedy to approach the Railway Claims Tribunal for seeking compensation. For the forgoing reasons O.P. has contended that the complaint deserves to be dismissed with cost.
5. The learned District Consumer Commission Gondia thereafter went through the evidence led by complainant as well as the O.P. The learned District Consumer Forum also went through the notes of argument filed by both the parties. The learned District Consumer Commission gave a finding that there was huge crowd in the train in which the husband of the complainant was travelling. Learned District Consumer Commission also gave a finding the deceased had died due to suffocation in the railway compartment and he was not suffering any heart ailment. Further it gave a finding that the complainant Nos.1 to 3 who were the legal heirs were entirely dependent upon the deceased Chintesh Chawalpane and so they were entitled for compensation under the provisions of Consumer Protection Act 1986. Accordingly the learned District Consumer Commission partly allowed the complaint and directed O.P. to pay compensation of Rs.two lacs towards mental harassment and agony for the loss of life of deceased and also to pay Rs.15,000/- towards cost of litigation, by passing an order Dt.30/01/2016.
6. Appellant Nos.1 to 3, not satisfied with this order Dt.30/01/2016 passed by the learned District Consumer Commission Gondia has come up in the present appeal. We have heard learned advocate Mrs.Anupama Andhare for the appellant as well as advocate Mr.Shridhar Purohit for respondent. We have also gone through the papers produced on record as well as the written notes of argument filed by both parties.
7. At the out set it is necessary to note certain undisputed facts. It is not in dispute that the complainant Nos.1 to 3 alongwith deceased Chintesh Chawalpane were proceeding in Puri-Ahemadabad super fast express from Raipur to Gondia on 01/06/2012 and deceased was also having a ticket No.1804503. It is also not in dispute that the deceased started feeing suffocation in the railway compartment due to heavy rush and crowed of passengers and his condition deteriorated by the time the train reached at Gondia where he was declared died. There is also no serious dispute that thereafter as per procedure the case was registered and postmortem was also conducted. But the cause of death was reserved till the receipt of report of viscera. Complainants have placed on record copy of the report of viscera and the same shows the cause of death as Cardio reffritor arrest, meaning there by that the deceased had died due to suffocation and loss of breath. O.P. in their written version have not disputed these facts at all and on the basis of evidence adduced by the complainants, the learned District Consumer Commission Gondia reached the conclusion that the complainants being the wife and children of deceased were entitled for compensation under the provisions of Consumer Protection Act 1986 as the O.P. Railway Department has indulged in deficiency in service. But the learned District Consumer Commission Gondia has restricted the compensation to Rs.2,00,000/- without awarding any interest.
8. Mrs.Anupama Andhare learned advocate for the appellants has challenged these findings on the sole ground that though the compensation was granted the amount of Rs.2,00,000/- awarded to the complainants was highly inadequate and needed to be enhanced. Second limb of the argument is that the appellants/complainants were also entitled for interest on the said amount. We have also heard Shri Shridhar Purohit, learned advocate for respondent and he has strongly supported the findings given by the learned District Consumer Commission. Further advocate Mr.Shridhar Purohit has also taken a plea that complaint filed by the complainants under the Consumer Protection Act 1986 was itself not tenable in law since the complainants had an alternate remedy and the proper Forum was to approach the Railway Claims Tribunal for seeking compensation. However we would like to deal with the main contentions of the present appellants relating to quantum of compensation, in this regard it would pertinent to turn to the judgment delivered by the learned District Consumer Commission Gondia. If we go through the judgment, the learned District Consumer Commission Gondia has dealt with the aspect in para No.17 and has observed that the wages of the deceased can be calculated as per the wages prescribed in the table under the Minimum Wages Act. Further the learned District Consumer Commission has also taken in to consideration the age of deceased and dependants and thereafter has arrived at the figure of Rs.2,00,000/-. We have also given anxious consideration to these aspects and we feel that the compensation in case of accident can be awarded only as per the norms laid down in Minimum Wages Act. We are also of the view that amount so determined can not be termed as inadequate.
9. During the course of argument we have also gone through the judgment of Hon’ble Supreme Court in the case of Union of India……V/s……Rina Devi, in Civil Appeal No.4945 of 2018. In the said judgment the Hon’ble Supreme Court has already laid down the law relating to award of compensation under the Railways Act,1989, but the same would not be applicable in the present case. On the other hand, Shri Shridhar Purohit, learned advocate for the respondent has submitted before us that in view of the provisions of Railways Act the present complaint itself is not tenable in law. On this aspect he has relied upon judgment in the case of Mahant Dhangir and another……..V/s……Shri Madan Mohan and others, reported in AIR 1988 Supreme Court 54 and we have gone through the said judgment. However, we are of the view that the remedy to the Consumers under the Consumer Protection Act 1986 was in addition to remedy provided for grant of compensation under the Railways Act and so this argument can not be accepted. As such we feel that the learned District Consumer Commission Gondia has not committed any error in giving the findings and so the appeal is devoid of substance. As such we proceed to pass the following order.
// ORDER //
- Appeal is hereby dismissed.
- Both parties shall be bear their own cost.
- Copy of this order be furnished to both parties free of cost.
