State Consumer Disputes Redressal Commission
Krishna vs The General Manager, Northern Railways on 30 March, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision: 30.03.2007 Complaint Case No.154/1998 1. Smt. Krishna Complainants. W/o Late Sh. Ram Kishan, 2. Sh. Devender .. S/o Late Sh. Ram Kishan. 3. Sh. Som Dutt, S/o Late Sh. Ram Kishan All Resident of Gali No.7, Shankar Garden, Bahadurgarh, Haryana. 4. Smt. Kavita, . W/o Sh. Naresh Kumar Gali No.5, Patel Park, Bahadurgarh, Haryana. 5. Smt. Babita . W/o Sh. Rohtas, Village Khera, Distt. Meerut (UP). Versus The General Manager Opposite Party. Northern Railways through Mr. Daniel Allen Masih, Baroda House, advocate. New Delhi CORAM: Justice J.D. Kapoor President Smt. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D.Kapoor (Oral)
1. This is most unfortunate case where due to lack of proper care at the manned crossing the passenger travelling in the train died as one rickshaw laden with the iron door negligently came below the closed level crossing pole near the railway track and the projected iron door hit/struck the train so violently that the deceased fell down from the running train and received fatal injuries.
2. Alleging negligence and deficiency in service on the part of the Railways the complainants who are legal heirs of the deceased have claimed compensation of Rs.6,00,000/- with interest @18% p.a.
3. An eye witness account given by Diwan Singh who was travelilng in the train alongwith the deceased in his affidavit is as under:
That on 30.11.1997, I boarded intercity express around 2 PM to go to my home town (Bahadurgarh) from Delhi. That when the train reached at Nangloi at manned level crossing No.11-C all of a sudden Iron door struck to the running train and then hit Sh. Ram Kishan (since deceased) who had just come out of bathroom and was near the gate of compartment. The iron door hit so hard and all of a sudden to the deceased that the deceased fell down from the running train. The rickshaw puller laden with iron door had come near the Railway track despite the fact that the level crossing was closed for the passing of the train. The accident was caused due to the failure of Railway Administration to take the reasonable care for the safety of the passengers.
That since I was known to the deceased so I informed the wife and son of the deceased about the accident immediately after reaching Bahadurgarh so that they can take all possible measures for treatment of the deceased. Ultimately the deceased died in Dr. R.M.L. Hospital, New Delhi on 03.12.1997 due to the injuries sustained in the accident.
4. The OP in its reply denied any deficiency in service on its part as alleged by the complainant. It has averred that criminal proceedings were launched against the Rickshaw puller who was the main cause of the accident and he is being prosecuted under section 338 IPC i.e. endangering life and personal safety and under section 147 of Indian Railway Act for trespassing and refusal to desist from trespassing. According to the OP the deceased was also liable for prosecution under Section 156 of the Indian Railway Act for hanging out of the door. Thus deceased was also guilty of contributory negligence.
5. Besides this OP Railways has challenged the jurisdiction of this Commission by invoking provision of Section 15 and 13 read with Section 124 of the Railways Claims Tribunal Act 1987 as according to these provisions any claim arising from the railway accident is maintainable before the Railways Claim Tribunal.
6. At the outset we shall deal with the objections as to jurisdiction of the Consumer Forum/State Commission under the Consumer Protection Act 1986. Relevant provisions of Railway Claim Tribunal Act relied upon by the counsel are as under:-
Section 15:
Bar of jurisdiction. -On and from the appointed day. no Court or other authority shall have. or be entitled to. exercise any jurisdiction, powers or authority in relation to the matters referred to in [sub-sections (1) and I-A] of Sec. 13.
Section 13:
Jurisdiction, powers and authority of Claims Tribunal.-(l) The Claims Tribunal shall exercise. on and from the appointed day, all such " jurisdiction. powers and authority as were exercisable Immediately before that day by any Civil Court or a Claims Commissioner appointed under the provisions of Railways Act.-
(a) relating to the responsibility of the railway administration as carriers under Chapter VII of the Railway's Act in respect of claims for-
(i) compensation for loss. Destruction, damages, deterioration or non-delivery of animals or goods entrusted to a railway administration for carriage by railway;
(ii) compensation payable under Sec. 82-A of the Railways Act or the rules made thereunder; and
(b) in respect of the claims for refund of fares or part thereof or for refund of any freight paid In respect of animals or goods entrusted to a railway administration to be carried by railway. The Claims Tribunal shall also exercise. on and from the date of commencement of the provisions of Sec. l24-A of the Railways Act, 1989 (24 of 1989). all such jurisdiction. powers and authority as were exercisable immediately before that date by any Civil Court in respect of claims for compensation now payable by the Railway Administration under Sec. l24-A of the said Act or the Rules made thereunder.
(2) The provision of the (Railways Act.,1989] and the rules made thereunder shall, so far as may be. be applicable for inquiring into or determining any claims by the Claims Tribunal under this Act.
7. Apart from this provision of Railway Act 1989, counsel for the OP has also relied upon the provision of Section 124 and 124(a), in relation to Section 13. The aforesaid provisions are as under:
124. Extent of liability.-When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglector default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident.
Explanation.-For the purposes of this section "passenger" includes a railway servant on duty.
'[124A. Compensation on account of untoward incident -When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for 'loss occasioned by the death of, or injury to a passenger as a result of such untoward incident:
Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to--
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment, becomes necessary due to injury caused by the said untoward incident.
Explanation.-For the purposes of this section, "passenger" includes
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket (or travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.]
8. The bare perusal of the Section 13 of the Railways Act shows that the claims preferred by the complainants in this case do not fall in any of the category enumerated therein. Death was not due to railway accident. Passenger was travelling inside the train when a foreign object flew inside the compartment and hit the passenger so violently that it resulted in his death. The object was iron door. It was laden in a rickshaw that had crossed and come near the pole at the manned crossing and therefore allegation is of negligence or deficiency in service, in not taking reasonable care at the manned crossing.
9. Every passenger travelling inside the train is a consumer as defined by Section 2(1)(g) of the Consumer Protection Act 1986 by virtue of hiring service against consideration and therefore any loss or injury suffered by the passenger either at platform, inside or outside the train entitles him and his legal heirs as to a reasonable amount as compensation. Section 2(1)(d) (ii) defines consumer as under: -
Consumer means a person who hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person,.
10. As per Section 2(1(g) of the Consumer Protection Act 1986, deficiency in service means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service.
11. Section 14(i)(d) provides that a consumer is entitled to an amount as compensation for any loss or injury suffered by him due to negligence of the opposite party.
12. So far as jurisdiction of this Commission is concerned it is not barred even in respect of any mishap or accident that occurs inside or outside the train and at the platform.
As per Section 3 of the Consumer Protection Act 1986, the remedy is additional and independent remedy and not in derogation of any other law for the time being in force. This remedy involves compensation, which has too wide a connotation than what is referred and mentioned in Sections 13, 15, 124 and 124A of the Railways Act. In Ghaziabad Development Authority Vs Balbir Singh reported in (2004) 8 CLD 861(SC), the Supreme Court has defined the word compensation under the Consumer Protection Act 1986 to such an extent that it includes mental agony, harassment, physical discomfort, emotional suffering, loss of life, injury damage on any count whatsoever arising from the deficiency in service or negligence of the opposite party i.e. service provider. Observations in this regard are as under:
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
13. Thus the objection as to the jurisdiction of this Commission is groundless and not available to the OP. On the allegation of negligence of Railways it is apparent that the gate man of the level crossing and other staff was negligent in not checking the rickshaw coming through the level crossing pole near the railway track when the train was approaching. Railways are required to provide safety measures on the manned level crossing and since the railway failed to take reasonable care of sealing the level crossing so that no vehicle or person should cross or go near the railway track when the train is approaching and by not taking proper safety measures, it was guilty for deficiency in service as negligence is writ large that resulted in the death of a passenger who was inside the running train.
14. Railways are not only required to provide efficient service and every kind of facility in the train but also it is required to maintain the safety at platform and inside the train and provide every possible safety measures for protecting the life and property of the passengers. It is the duty of the Railways to see that no untoward mishap occurs on the railway tracks or on the platform or inside the train due to its negligence or deficient service. Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service amounts to an offence of deficiency in service.
15. It is most unfortunate that after so many years we are having hundreds of unmanned and manned railways crossings that pose grave threat to the lives of the passengers, passers by and people travelling in trucks and buses when they try to cross even the closed manned crossings and unmanned crossing. Large number of people have lost their lives. But no requisite attention has been paid to improve the infrastructure in this regard.
16. We have received large number of cases against the poor services by the Railways and have in the past awarded compensation because of deaths while crossing the railway lines from one platform to another.
We want to impress upon higher authorities of the Railways particularly the Honble Minister of Railways to ameliorate the plight of lacs of consumers and improve the conditions of railway platforms and take safety measures at railway crossings and railway lines by building over and under bridges.
17. In the given facts and circumstances of the case we deem that lump sum compensation of Rs.6,00,000/- for the LRs of the deceased i.e. complainants and Rs.4,00,000/- as punitive damage for grossest kind of deficiency in service and negligence on the part of the Railways that resulted in death of a passenger who was inside the running train, would meet the ends of justice. The punitive damages shall be deposited in favour of the State Consumer Welfare Fund (Legal Aid) whereas the sum of Rs.6,00,000/- shall be paid to the complainants.
18. Payment shall be made within one month from the date of receipt of this order.
19. A copy of this order, as per the statutory requirements be forwarded to the parties, free of charge and also to the concerned District Forum and thereafter the file be consigned to the Record Room.
20. Copy of this order be also sent to the following:
(ii) Honble Minister of Railways, Rail Bhawan, New Delhi.
(iii) The Chairman, Railway Board, Rail Bhawan, New Delhi.
Announced on 30th day of March, 2007.
(Justice J.D.Kapoor) President (Rumnita Mittal) Member Tri