General Manager, Eastern Railway, Kolkata v. Apurba Konar
2009-09-23
JAPAN KUMAR DUTT
body2009
DigiLaw.ai
Judgment :- (1.) Heard the learned Advocates for the respective parties. The facts of the case, briefly, are as follows : - The opposite party purchased a Railway Ticket at Katwa Junction on 4.10.2002 for undertaking a journey by Katwa-Howrah Local Train which was scheduled to leave Katwa Junction Station at 6 a.m. After the opposite party reached platform No.1 of such station the opposite party came to know that the Train will leave from platform No. 2. The opposite party decided to cross the Railway tracks since the over-bridge was closed at that time due to repairing work. The opposite party in his attempt to cross the Railway tracks fell on the Railway track and suffered a compound fracture in his right leg since his right foot got locked in between a boulder and Railway track. The opposite party had to rush to a nearby Nursing Home where he was treated for the fracture. The opposite party lodged a General Diary on 6.10.2002 with the Katwa GRP in respect of the said incident for which the opposite party had suffered 60% disability. The opposite party made a representation on 10th October, 2002 to the petitioner No.2 and sum of Rs. 5,000/-has been paid by the petitioners to the opposite party. The opposite party filed a case being CDF/UNIT-l/case No. 225 of 2003 before the Calcutta District Consumer Disputes Redressal Forum at Bhawbani Bhawan, Kolkata (Unit I) against the petitioners praying for orders directing the petitioners to make payment of compensation amount of Rs. 3 lacs on account of 60% disability caused to the opposite party and suffering of severe pain and mental agony and to make reimbursement of the balance sum of Rs. 29,585/-on account of medical expenditure and to make payment of Rs. 5,000/-towards costs of the proceedings. The said case was contested by the petitioners by filing written objection. It was alleged by the petitioners that the opposite party suffered the consequence of his own rash and negligent act and the opposite party committed an illegal act by trying to cross the Railway track directly from high platform. It is the case of the petitioners that immediately after the accident a stretcher was provided to the opposite party and medical assistance was offered to him and the Railway authority also offered and paid ex-gratia amount of Rs.5,000/- to the opposite party as per the provisions of law.
It is the case of the petitioners that immediately after the accident a stretcher was provided to the opposite party and medical assistance was offered to him and the Railway authority also offered and paid ex-gratia amount of Rs.5,000/- to the opposite party as per the provisions of law. It. was also the case of the petitioners that the passengers concerned were requested through public address system to avail the path-way at Azimgunj end at Katwa platform since that is an alternative path-way. (2.) That by an order dated 4.12.2007 the said District Forum allowed the said case by directing the petitioners to pay Rs. 18,900/-on account of medical treatment, Rs. 1,00,000/- on account of compensation and Rs. 2,000/-on account of litigation costs to the opposite party within a stipulated period of time failing which it was directed that the petitioners shall have to pay interest at the rate of 8% p.a. on the said amount till realisation. Against such order dated 04.12.07 the petitioners preferred an appeal before the State Consumer Disputes Redressal Commission being S.C. Case No. F.A./2008/ 148. The Learned State Commission by order dated 23.09.2008 dismissed the said appeal and affirmed the judgement passed by the District Forum. (3.) It appears that subsequently by order dated 3.11.2008 the Learned State Commission made some corrections in its judgement dated 23.9.2008. The petitioners have challenged the said order dated 23.09.2008, as corrected by the order dated 3.11.2008, passed by the Learned State Commission in the present application under Article 227 of the Constitution of India. At the very outset the learned senior Counsel for the petitioners has submitted that the Learned District Forum had no jurisdiction to entertain the claim of the opposite party and the jurisdiction to hear the present dispute exclusively lies with the Railway Claims Tribunal. He has also submitted that the accident which took place had no connection whatsoever with the services provided by the Railways and the opposite partys complaint is not in relation to any services hired or availed of by the opposite party because the injury suffered by the opposite party had no correlation with the services provided by the Railways.
He has also submitted that the accident which took place had no connection whatsoever with the services provided by the Railways and the opposite partys complaint is not in relation to any services hired or availed of by the opposite party because the injury suffered by the opposite party had no correlation with the services provided by the Railways. The said learned senior Counsel further submitted that in respect of the accident that had occurred the opposite party cannot indicate any fault, imperfection, short-coming or inadequacy in the quality, nature and manner of performance of any service required to be maintained by or under any law and/or contract by the Railways. (4.) The points raised by the learned senior Counsel for the petitioners involves the question of jurisdiction of the District Forum to entertain the petition filed by the opposite party. In other words, whether the District Forum could have entertained the case filed by the opposite. party in the facts and circumstances of the instant case. (5.) The learned Counsels for the respective parties made their respective submissions and cited some reported decisions and also referred to certain Sections of certain Acts. The opposite partys case was that the opposite party had no alternative way and under compelling circumstances he had to make an attempt to cross the Railway tracks and that he did not notice any display board indicating any alternative way to the platform No.2 for the use of the passengers. Be that as it may, the fact remains that the opposite party had decided to cross the Railway tracks and in such attempt fell on the Railway tracks and suffered the compound fracture in his right foot since his right foot got locked in between a boulder and Railway track. (6.) The learned senior Counsel for the petitioners referred to the application under Article 227 of the Constitution of India. It appears from paragraph 13 of the said application that the petitioners have taken a stand that according to Sections 13 and 15 of the Railway Claims Tribunal Act, 1987 read with Sections 123 and 124A of the Railways Act, 1989 the jurisdiction to hear the instant case lies exclusively with the Railway Claims Tribunal.
It appears from paragraph 13 of the said application that the petitioners have taken a stand that according to Sections 13 and 15 of the Railway Claims Tribunal Act, 1987 read with Sections 123 and 124A of the Railways Act, 1989 the jurisdiction to hear the instant case lies exclusively with the Railway Claims Tribunal. According to the petitioner, in terms of Section 13(1 A) of the Railway Claims Tribunal Act, 1987 the case of the opposite party falls within the expression untoward -incident as defined in Section 123(1)(c) of the Railways Act, 1989 and as such it will be governed by Section 124A of the said Act of 1989 which deals with compensation payable in case of a untoward incident. According to the petitioners, Section 13(1 A) which lays down that Railway Claims Tribunal will exercise jurisdiction over matters relating to compensation payable under Section 124A of the Railways Act, 1989 will be applicable in the instant case and therefore Section 15 of the Railway Claims Tribunal Act, 1987 which Bars jurisdiction of all Courts and other authority regarding matters falling under Section 13(1A) will be applicable. (7.) In paragraph 14 of the application under Article 227 of the Constitution the petitioners have stated that the Learned State Commission, Calcutta has made a substantial error of law by ignoring the fact that the proper remedy for the opposite party in the instant case lay before the Railway Claims Tribunal under Section 125 of the Railways Act, 1989 and not before the Learned District Forum. (8.) The said learned senior Counsel cited a decision reported at (1992)1 Consumer Protection Reporter 480 (Smt Savithri Bai v. General Manager, Southern Railway, Madras-2 and Ors.). In the said reported case involved an unfortunate lady aged about 55 years was involved who lost her both legs in the Railway Accident which took place at a certain Railway Station in which a certain Train was involved. The complainant had boarded the said train along with her daughter-in-law and her grand daughter and the said Train reached a certain station and it stopped there for a scheduled halt of one minute. At that time, the complainant while alighting from the Train slipped and her two legs were caught under the wheels of the Train and were cut. Both her legs were amputated below the thigh.
At that time, the complainant while alighting from the Train slipped and her two legs were caught under the wheels of the Train and were cut. Both her legs were amputated below the thigh. The Railways concerned in the said reported case took the stand that the accident occurred due to the gross negligence of the complainant in getting down from the off-side of the Railway track and that she was not entitled to the compensation as claimed by her. It also appears that the complainant had stated, in the said reported case, that she got down from off-side of the train where there was no platform and taking inter alia such statement into consideration it was decided in the said reported case that the accident occurred due to the negligence of the complainant and not due to the negligence of the Railways. It was found in the said reported case that the complainant was not entitled to any compensation and the complaint was dismissed. (9.) The said learned senior Counsel cited another decision reported at (1995)2 Supreme Court Cases 479 : 1995 WBLR (SC) 179 (Chairman, Thiruvalluvar Transport Corporation v. Consumer Protection Council). The facts in the said reported case was that a certain person while travelling in an Omnibus, the driver of the said bus had to apply the brakes under certain circumstances and as a result the said person who was sitting in the center of the rear seat was thrown in the front and he hit against the iron side-bar, sustaining a serious head injury and, subsequently, succumbed to such injury. The legal representatives of the deceased victim did not file any petition before the Motor Accident Claims Tribunal but an application was made before the National Commission. The question that arose before the Honble Supreme Court was as to whether the National Commission had jurisdiction to entertain the claim application and award compensation in respect of the accident, as indicated above.
The question that arose before the Honble Supreme Court was as to whether the National Commission had jurisdiction to entertain the claim application and award compensation in respect of the accident, as indicated above. The Honble Supreme Court was pleased to hold that the complaint in question cannot be said to be in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided to the deceased and that the expression service as defined by the 1986 Act (Consumer Protection Act, 1986) means service of any description which is made available to the potential users and includes the provision of facilities inter alia in connection with transport. The Honble Supreme Court was pleased to hold in the said reported case that the accident that occurred had nothing to do with the service provided to the deceased. The Honble Supreme Court was further pleased to observe in the said reported case that the complaint in the said case cannot be said to be in relation to any services hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but the fatal injury was the direct result of the accident on account of which he was thrown out of his seat and he dashed against an iron handle of the seat in front of him. The Honble Supreme Court was further pleased to observe that the said case squarely fell within the ambit of Section 165 of the 1988 Act and the Claims Tribunal constituted under such Act for the area in question had jurisdiction to entertain the said case. In paragraph 8 of the said reports the Honble Supreme Court was pleased to hold that the National Commission had no jurisdiction whatsoever and was entirely wrong in exercising jurisdiction and awarding compensation. (10.) The learned Advocate appearing on behalf of the opposite party relies upon Section 3 of the Consumer Protection Act, 1986 which provides that the provisions of the said 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. He also refers to Section 2(o) and submits that transport is included within the meaning of service.
He also refers to Section 2(o) and submits that transport is included within the meaning of service. He further submits that the case of the opposite party was based on deficiency of service on the part of the petitioners as contemplated under the said Act of 1986 and not on the basis of untoward incident as contemplated in the Railways Act, 1989. His submission was that the District Forum took a fair and reasonable view of the matter and came to the right conclusion. (11.) He refers to the judgement reported at (2004)1 Supreme Court Cases 305 (Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (Dead) Through LRs. and Ors.) wherefrom it appears that the facts of the said case were quite different. It appears that in the said reported case the facts were that certain paddy bags were pledged for obtaining loan and notices were issued to a certain party demanding payment of loan amount with interest thereon. However, in paragraph 12 of the said reports the Honble Supreme Court was pleased to hold that as per Section 3 of the 1986 Act the provisions of such Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. The Honble Supreme Court was also pleased to observe that such provisions are to be interpreted broadly, positively and purposefully in the context of the said case to give meaning to additional/extended jurisdiction, particularly when Section 3 seeks to provide remedy under the said Act of 1986 in addition to other remedies provided under other Acts unless there is a clear bar. (12.) The said learned Counsel cited another decision reported at (2003) 2 Supreme Court Cases 412 (State of Karnataka v. Vishwabharathi House Building Coop. Society and Ors.). In paragraph 16 of the said reports the Honble Supreme Court was pleased to observe that the provisions of the said 1986 Act are in addition to the provisions of any other law for the time being in force and not in derogation thereof as would be evident from Section 3 of the said Act of 1986. In paragraph 46 of the said reports the Honble Supreme Court was pleased to observe that the said Act of 1986 supplements and not supplants the jurisdiction of the civil Courts or other statutory authorities.
In paragraph 46 of the said reports the Honble Supreme Court was pleased to observe that the said Act of 1986 supplements and not supplants the jurisdiction of the civil Courts or other statutory authorities. In paragraph 48 of the said reports the Honble Supreme Court was pleased to observe that the provisions of the said Act of 1986 are required to be interpreted as broadly as possible and that the Consumer Forums of the said Act of 1986 have jurisdiction to entertain a complaint despite the fact that other Forums/Courts would also have jurisdiction to adjudicate upon the lis. (13.) Another decision cited by the said Learned Counsel is the one reported at (2004)6 Supreme Court Cases 113 (Sumatidevi M. Dhanwatay v. Union of India and Ors.). Even though the said reported case involved the Railways yet the facts were quite different. In the said reported case the appellant concerned was travelling by First Class Air Conditioned Berth from Nagpur to Bombay by Howrah-Bombay Mail with her luggage which included precious articles and while she was travelling, she was assaulted by some unauthorized passengers and her precious articles and valuables were taken away forcibly. It further appears that thousands of persons entered into compartment and assaulted the passengers including the appellant concerned. the crowd was so violent that they broke the doors, window bars, glass panels, seating berths and toilets, etc. This apart, the- crowd committed so many other illegal acts of assaulting the bona fide passengers. They also molested the women and even raped the young girl passengers. The appellant had pulled the alarm chain three times as a result of which, the train stopped at Igatpuri Station. The appellant with other bona fide passengers got down at that station and approached the Railway authority for protection but no protection was given. On reaching Bombay she lodged a complaint with the police about the incident. The appellant concerned approached the National Consumer Disputes Redressal Commission, Maharashtra State that is the State Commission by filing a complaint claiming a certain amount of compensation. Such facts will appear from paragraph 1 of the said reports. Thus it will appear that the facts in the said case were quite different from the facts of the instant case.
The appellant concerned approached the National Consumer Disputes Redressal Commission, Maharashtra State that is the State Commission by filing a complaint claiming a certain amount of compensation. Such facts will appear from paragraph 1 of the said reports. Thus it will appear that the facts in the said case were quite different from the facts of the instant case. In the aforesaid facts and circumstances of the said reported case the Honble Supreme Court was pleased to observe that the argument of the learned Counsel for the respondents in the said reported case that the Railway Administration is not liable for the loss suffered by the appellant could not be accepted. It further appears from paragraph 6 of the said reports that the Railway Administration did not raise any issue as to the maintainability of the complaint or jurisdiction of the State Commission to deal with the complaint. Of course, the Honble Supreme Court was pleased to observe that even otherwise, under Section 3 of the said Act of 1986 the complaint could be entertained by the State Commission in the absence of any such plea taken by the Railway Administration as to the jurisdiction to entertain the complaint. (14.) The said learned Advocate cited a decision reported at (2007)4 Supreme Court Cases 579 (Kishore Lal v. Chairman, Employees State Insurance Corpn.) and referred to paragraph 17 of the said reports wherein it has been inter alia observed by the Honble Supreme Court that the said 1986 Act being a beneficial legislation should receive a liberal construction and that the trend of the decisions of the Honble Supreme Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provisions prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil Court or any other Forum as established under some enactment. WBLR-47 (15.) The next decision cited by the learned Advocate for the opposite party is the one reported at (1998)3 Supreme Court Cases 67 (P. A. Narayanan v. Union of India and Ors.). From paragraph 10 of the said reports it appears that the Honble Supreme Court was pleased to observe that in the said case there had been a complete dereliction of duty which resulted in a precious life being taken away.
From paragraph 10 of the said reports it appears that the Honble Supreme Court was pleased to observe that in the said case there had been a complete dereliction of duty which resulted in a precious life being taken away. It further appears that in the said case the Honble Supreme Court was pleased to observe that "Had the deceased not pulled the alarm chain with a view to stop the train, the position might have been different. Liability in this case is fault-based. Such a liability is not inconsistent with the scheme of the Railways Act of 1890 either (refer Section 80 with advantage). The proof of a fault in this case is strong and Mr. Goswami has not rightly challenged it . either." (16.) Another decision cited by the learned Advocate for the opposite party is the one reported at 2003 CTJ 196 (CP) (NCDRC) (Union of India and Ors. v. Sanjiv Dilsukhraj Dave and Anr.) in support of his submission that existence of remedy provided under the Railway Claims Tribunal Act does not take away the jurisdiction of the Consumer Forums to decide the question of deficiency of service of the Railways. (17.) The commercial manual of the Indian Railways was referred to by the learned senior Counsel for the petitioners and attention of this Court was drawn to Rule 303 where from it appears that at stations were no over-bridges or sub-ways are provided, the passengers must use the ends of the platform for moving from one platform to another. In no circumstances should passengers be permitted to cross Railway lines without adequate precautions being taken for their safety. The learned Advocate for the opposite party has submitted that the over-bridge concerned was closed for a long period and as such the opposite party had to cross the Railway tracks. The stand taken by the petitioners was that the over-bridge concerned was under repairs and everyday the passengers were being requested repeatedly over the public address system to avail the path-way at the Azimgunj end of Katwa Station and such announcements were made repeatedly even on the day of the accident at the relevant time but the opposite party intended to go to the platform No.2 by crossing the Railway tracks.
The learned Advocate for the opposite party submitted that the petitioners did not render any medical assistance to the opposite party inspite of having opportunities for rendering such medical assistance and as such there was a deficiency of service. The said learned Advocate for the opposite party also referred to a certain portion of the Non-Suburban Time Table wherein some provisions regarding compensation for train accident/claims have been indicated. He submitted that since the petitioners had paid Rs. 5,000/- to the opposite party such fact indicates that the petitioners are liable to pay compensation to the opposite party. (18.) The learned Advocate for the opposite party also referred to Salmond on Jurisprudence, Twelfth Edition, at page 193. It appears from the passage referred to by the said learned Advocate that the said passage deals with the topic of conventional custom. Elaborate discussions on such topic, in the facts and circumstances of the present case, is not necessary. (19.) The learned Advocates for the respective parties have referred to certain provisions of the relevant Acts. They have referred to Sections 13 and 15 of the Railway Claims Tribunal Act, 1987, Sections 123,124, 124A, 128 of the Railways Act, 1989,2(c), (d), (g) and (o) and also Section 3 of the Consumer Protection Act, 1986 while making their submissions in support of their respective cases. (20.) Having heard the learned Counsels for the respective parties this Court is of the view that even if it is assumed that in appropriate cases the Consumer Forums under the Consumer Protection Act, 1986 can entertain the complaints made by the complainants even though remedies under other Acts and/or provisions of law are provided in respect of the same cause of action, the question would still remain, in a case where deficiency of service has been alleged, as to whether or not there has been any deficiency of service on the part of the person and/or authority against whom the complaint has been made. This is so, because unless the complainant satisfies the Consumer Forum concerned that there has been a deficiency of service on the part of the authority and/or person against whom the complaint is made, the Consumer Forum cannot pass any order awarding compensation in favour of the complainant in the event the dispute concerned relates to an alleged deficiency of service.
The moot question therefore in the instant case would be as to whether or not there was any deficiency of service on the part of the petitioners in respect of the injury that was suffered by the opposite party on a certain date. (21.) There is no dispute with regard to the fact that at the material point of time, the opposite party was waiting at Platform No. 1 to board the Train concerned and on coming to know that the Train will leave from Platform No.2 the opposite party decided to cross the Railway tracks to reach Platform No.2. In the process, the opposite party suffered an injury for which he claimed compensation before the Consumer Forum. It is the petitioners case that the opposite party could have easily used either end of the Platform for the purpose of moving from Platform No. 1 to Platform No.2, even if, the over-bridge was closed due to repair-work. But without doing so, the opposite party jumped on to the Railway tracks for the purpose of reaching Platform No.2. This Court is of the view that the opposite party failed to exercise ordinary prudence. Of course, it is the case of the petitioners that announcements were made at the material time through the public addresses system that the passengers concerned were requested to avail the path-way at Azimgunj end of the Katwa Platform since that is an alternative path-way. It is difficult to appreciate as to what prompted the opposite party to reach Platform No.2 by jumping on the Railway tracks and crossing the same. The opposite party has not shown anything to indicate that if the opposite party had availed of the Azimgunj end of the platform for the purpose of reaching Platform No.2 he could not have boarded the train in time. One cannot find fault with the Railways if the Railways had to close the over-bridge concerned for the purpose of making repairs. Since the opposite party could not dispute, by any proof, that there was an alternative way at the Azimgunj end this Court can come to the conclusion that such alternative way was available to the opposite party. A person, exercising ordinary prudence, may not even get near the edge of the platform beyond which the Railway tracks are laid.
Since the opposite party could not dispute, by any proof, that there was an alternative way at the Azimgunj end this Court can come to the conclusion that such alternative way was available to the opposite party. A person, exercising ordinary prudence, may not even get near the edge of the platform beyond which the Railway tracks are laid. It is not difficult to imagine that if a person falls on the Railway tracks there is likelihood that such person may suffer injury which at times can also be fatal. It further appears from the copy of the complaint petition that the opposite party happens to be a business-man and it is expected that being a man of worldly affairs the opposite party would exercise ordinary prudence in his activities. There is nothing abnormal in the existence of the boulders where the Railway tracks are laid for the purpose of running of trains. The abnormality lay on the part of the opposite party to jump-on such Railway tracks. It is difficult to imagine as to how any connection can be established between the services provided and/or expected to be provided by the Railways and the accident that took place which resulted in the unfortunate injury suffered by the opposite party. The learned senior Advocate for the petitioners has rightly submitted that the injury suffered by the opposite party had no correlation with the services provided by the Railways. The learned Advocate for the opposite party could not cite any decision where from it would appear that in similar circumstances, like the present one, the authority concerned granted an award of compensation in favour of any complainant. On the other hand, the learned senior Advocate for the petitioners cited the decision reported at (1995)2 Supreme Court Cases 479 where from it appears that even in a case where a person was travelling in the omnibus concerned sustained a serious head injury and ultimately succumbed to such injury owing to certain application of brakes by the driver of the said omnibus. The Honble Supreme Court, in the said reported case, was pleased to hold that the complaint filed by the legal representative of the deceased victim could not have been said to be in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided to the deceased.
The Honble Supreme Court, in the said reported case, was pleased to hold that the complaint filed by the legal representative of the deceased victim could not have been said to be in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided to the deceased. The Honble Supreme Court in the said reports was pleased to hold that the accident that occurred had nothing to do with the services provided to the deceased and that the complaint in the said case could not be said to be in relation to any services hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him. The Honble Supreme Court was pleased to hold in the said reports that the fatal injury was the direct result of the accident. In the present case, the opposite party was not even travelling in any train - while standing on Platform No. 1 the opposite party decided to jump on the Railway tracks and cross such tracks for the purpose of reaching platform No. 2. This Court is of the view that the accident and/or the injury that was unfortunately suffered by the opposite party had no correlation whatsoever with the services provided or expected to be provided by the Railways. (22.) In view of the discussions made above, this Court finds that the case, as aforesaid, filed by the opposite party before the Calcutta District Consumer Disputes Redressal Forum does not have any merit at all from the point of view of the Consumer Protection Act, 1986. The said Forum acted illegally and with material irregularity and also without jurisdiction in passing its order dated 4.12.2007, as aforesaid. The Learned State Commission also acted illegally and with material irregularity in affirming the judgement passed by the District Forum by its order dated 23.9.2008 as corrected by order dated 3.11.2008. In such circumstances, the impugned orders passed by the Learned District Forum and also the State Commission are set aside. (23.) It is, however, made clear that this order will not prevent the opposite party from taking appropriate steps against the petitioners under the appropriate law that is The Railways Act, 1989 read with The Railway Claims Tribunal Act, 1987.
In such circumstances, the impugned orders passed by the Learned District Forum and also the State Commission are set aside. (23.) It is, however, made clear that this order will not prevent the opposite party from taking appropriate steps against the petitioners under the appropriate law that is The Railways Act, 1989 read with The Railway Claims Tribunal Act, 1987. The application under Article 227 of the Constitution of India is thus disposed of.