ORDER As per Hon'ble Shri Justice V.K. Agrawal, President :- 1. This appeal, u/s l5 of the Consumer Protection Act, 1986 is directed against the order dated 5th January, 1999 in complaint no. 159/94 by the District Consumer Disputes Redressal Forum, Durg (hereinafter called the 'Distt. Forum' for short), dismissing the complaint. 2. It was averred by the complainant in the complaint and in his affidavit that the complainant had gone to Durg Railway Station on 28-4-94 after purchasing platform ticket. There was a pit dug on the platform which was neither fenced nor there was any notice of caution board. The complainant therefore, could not see the pit and fell down in it, resulting in injury to his hand and fracture of bones of his forearm. The complainant had to undertake a long treatment for the said injuries. The complainant prayed that compensation of Rs. 35,000/- be awarded to him. 3. The complaint was resisted by the respondents/Railway Administration. It was averred that the pit in the platform was dug for laying a new sewer line. It was also averred that the said pit was enclosed with tie bar fencing. It was averred that the area was well lit and a caution board and colour indication board was put up for public safety. It was denied that the complainant fell down in the pit. It was further averred that no consumer dispute was raised by the complainant. The opposite party/respondents therefore, prayed that the complaint be dismissed. 4. The Distt. Forum held that it was not established that there was deficiency in service on the part of Railway Administration. It accordingly dismissed the complaint. 5. The learned counsel for the complainant/appellant submitted that the complainant had purchased platform ticket and had gone to Railway Station at about 8.00 P.M. There was an unguarded pit in the platform which could not be noticed by the complainant and the complainant fell down in the pit and got injured. He had to undergo a long and expensive treatment. It was therefore, submitted that the complainant was entitled to damages as claimed by him. 6. The learned counsel for the respondents however, supported the impugned order and contended that the consumer Forum had no jurisdiction to hear the complaint in view of Section 124-A of the Railway Act, 1989 and the matter could be decided only by the Railway Claims Tribunal. 6. The learned counsel for the respondents however, supported the impugned order and contended that the consumer Forum had no jurisdiction to hear the complaint in view of Section 124-A of the Railway Act, 1989 and the matter could be decided only by the Railway Claims Tribunal. It was further contended that the pit dug in the platform was properly guarded and there was fencing placed around it as well as a notice of caution placed on the spot. It was submitted that the complainant was walking negligently and fell into pit due to his own negligence for which the respondents cannot be held liable. 7. The first question that arises for consideration is : as to whether the Distt. Forum was competent to hear and decide the complaint? 8. As noticed earlier, the learned counsel for the respondents urged in the above context that the dispute was covered u/s 124-A of the Railway Act, 1989 and therefore, the Railway Claims Tribunal alone had jurisdiction to consider the grievance raised in the complaint. It was accordingly submitted that the jurisdiction of other Courts and authority having been barred u/s 15 of the Railway Claims Tribunal Act, 1987, the Distt. Forum had no jurisdiction. It may be noticed that Section 124-A covers the liability arising on the happening of an untoward incident in the course of working in Railways. Untoward incident has been defined in Section 123 (C) as below: 123. (C) "Untoward Incident" means :-(1) (i) The commission of a terrorist act within the meaning of sub-section (1) of section 3 of Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or (ii) the making of violent attack or the commission of robbery 'or decoity; or (iii) the indulging in rioting, shootout or arson, by any person in 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. " 9. It is clear that in the instant case, no untoward incident as defined above occured as the accident did not take place due to any terrorist act or on account of commission of robbery or decoity, or due to rioting etc.. " 9. It is clear that in the instant case, no untoward incident as defined above occured as the accident did not take place due to any terrorist act or on account of commission of robbery or decoity, or due to rioting etc.. Thus, in the instant case, Section 124-A of the Railway Act would not cover the liability arising from the accident as above. Therefore, the contention of the learned counsel for the respondent that such a claim could be considered exclusively by the Railway Claims Tribunal as provided u/s 15 of the Railway Claims Tribunal Act cannot be accepted. 10. In the above context, reference was also made to the decision of M.P. High Court in Janki Bai Vs. Union of India) where in the scope of Section 124 of the Railways Act., 1989 corresponding to section 82-A of old Railway Act, 1890 was considered and it was held in that case that as the death was not caused due to 'untoward Incident' as defined in Section 123 (C) of the Railway Act, 1989. The Railway Tribunal was justified in dismissing the application u/s 125 of Rail way Act, as no compensation could have been awarded u/s 124-A of the Railway Act by the Railway Tribunal. Thus, the ratio of the said decision of M.P. High Court would also support our view that in the facts of the present case, the complainant could not have got redressal from the Railway Claims Tribunal as it had not been conferred with jurisdiction to consider and decide such claims consequently, it is clear that Distt. Forum had the jurisdiction to consider and decide the complaint. 11. The learned counsel for the complainant contended that there is sufficient material on record to corroborate the version of the complainant that the pit was unguarded and unfenced and that there was no notice of caution near the said pit in the platform. The question that requires consideration is as to whether the pit on the Railway platform was duly fenced and notice of caution was also placed near it to alert the passers by. 12. It may be noticed that the parties have led oral evidence in the above regard. The complainant has examined himself as well as Lallan Kishore Singh who have stated that the pit in which the complainant fell down was unguarded. 12. It may be noticed that the parties have led oral evidence in the above regard. The complainant has examined himself as well as Lallan Kishore Singh who have stated that the pit in which the complainant fell down was unguarded. The complainant has stated that there was darkness at the place where the pit was dug. The complainant's witness Lallan Kishore Singh categorically denied the suggestion that the said pit w-as fenced by rope. No suggestion on behalf of the respondent has been given to the above witnesses regarding any notice of caution having been placed near the pit. 13. The complainant has also examined N.K.V. Rao Station superintendent who has admitted that the report Ex. P-3 by the injured person was submitted to him. He has also stated that he has sent the injured person to the hospital as per letter Ex.P-1, according to which two persons were injured in the incident who were sent to Distt. Hospital, Durg by the station superintendent. In cross-examination on behalf of the respondents, the said station superintendent has tried to say that the pit was surrounded by rope and note of caution was also put up at the pit. However, though he says that the pit was surrounded by rope but in their written version, the respondents have pleaded that there was tiebar fencing with which the pit was surrounded. The discrepancy as above raises suspicion about the truthfulness of the respondent's version that the pit was duly fenced. There is no specific statement by N.K.V. Rao that any caution board or colour indication board was put up at the site of the pit, as has been pleaded by the respondents. There is no independent evidence led by the respondents to substantiate their" plea that the pit was duly guarded and fenced or that any caution note was put up at the pit. 14. In view of the above, it is clear that the pit was unguarded and unfenced and that there was no caution notice nearby, as has been alleged and stated by the complainant and his witness. It therefore, appears that the complainant was unable to notice the pit and accidentally fell down into it. 14. In view of the above, it is clear that the pit was unguarded and unfenced and that there was no caution notice nearby, as has been alleged and stated by the complainant and his witness. It therefore, appears that the complainant was unable to notice the pit and accidentally fell down into it. It may be noticed in the above context that some questions have been asked from the complainant regarding the shortcoming in his eye sight, in reply to which the complainant has honestly admitted that he is not in a position to see the things within short distance. Thus, it appears that the complainant's near vision is not normal and that he cannot properly see nearby things without spectacles. However, he has denied that he could not see the pit because of weak eye sight. 15. It may be noticed that firstly there is no material to hold that the complainant could not see the pit which could be noticed from a distance; if it has properly fenced and if notice of caution was also placed nearby. Thus, even if the complainant was having handicap regarding his near vision, the short coming as above would not have been a handicap for him to see the pit from a distance, especially if it was duly fenced and a notice board of caution was placed near it, Moreover, the railway administration should have taken precautionary measures to get the pit properly fenced and guarded as persons with handicap including that of eye sight, normally. visit railway platform and are entitled to safely use the platform, Thus, the respondents/railway administration are expected to take adequate safety measures keeping in view such handicapped persons also. The respondents therefore cannot get any benefit of the fact that the complainant suffered from handicap in his near Vision. 16. Thus, on consideration of the material placed on record, we find that the complainant's grievance that there was unguarded pit on the platform without any caution notice is justified. The complainant could not see the said pit as it was night time and fell down in it. In view of above, it is clear that the complainant has successfully established that there was deficiency in the service on the part of the respondents, railway administration, in not keeping the platform in a safe condition for passengers and other persons visiting and using the platform. In view of above, it is clear that the complainant has successfully established that there was deficiency in the service on the part of the respondents, railway administration, in not keeping the platform in a safe condition for passengers and other persons visiting and using the platform. Therefore, the finding of the learned Distt. Forum that there was no deficiency in service by the respondents, cannot be sustained and deserves to be set aside. The complainant, is therefore, entitled to get compensation from the respondents for deficiency in service as above on their part. 17. The next question that arises for consideration is: as to what should be the quantum of compensation to which the complainant is entitled? 18. It may be noticed that the complainant had alleged that there was fracture in his hand. The documents of treatment and tests including x-ray report as well as prescription of the doctor clearly indicate that the complainant sustained injuries and fracture in the right forearm. His discharge ticket from Distt. Hospital, Durg shows that the complainant was admitted there on 284-94 and was discharged on 11-5-94. Thus, he remained in the said hospital for about 14 days, There was fracture on his forearm and operation: was performed. It also appears from discharge certificate that he was advised for some exercises etc. He had to take follow up treatment and plaster was removed on 11-6-94. The prescription of Gayatri Hospital, Durg has also been placed on record by the complainant which shows that there was further treatment of the complainant and correction of bandage under general anaesthetia was done and the plaster was removed again. Some of x-ray reports and other documents showing treatment and purchase of medicine etc., are also placed on record. 19. From the above, it becomes amply clear that the complainant initially took treatment at Govt. Distt. Hospital, Durg where operation was performed subsequently, he was also admitted in private hospital namely Gayatri Hospital, Durg. It is clear that the treatment continued for a long time. Though it is true that bills of very small amounts have been placed on record but the complainant must have incurred expenditure for his treatment especially in the private hospital, the treatment as above would also have necessitated abstaining from his work for the period of treatment. Physical and mental pain must have also been caused to him on account of injuries. Physical and mental pain must have also been caused to him on account of injuries. Taking stock of the foregoing facts and circumstances of the case, we consider it just and proper to award damage of Rs. 15,000/- to the complainant. 20. Accordingly, this appeal and the complaint is allowed. The impugned order dismissing the complaint is set aside. The respondents shall pay to the complainant a sum of Rs. 15,000/- with interest thereon @ 10% per annum shall also be payable from the date to the complainant till payment. The respondents shall also pay the costs of litigation to the complainant which is quantified at Rs. 2000/-. Appeal Allowed: