State Consumer Disputes Redressal Commission
Rati Tripathi vs Union Of India on 22 April, 2016
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
CC No.34 /2015.
Filed on :01/07/2015
DECIDED ON : 22.4.2016.
1. Rati Tripathi,
d/o Shri Mahendra Nath Tripathi,
Aged around 29 years
2. Mahendra Nath Tripathi,
s/o Late Shri Narayan Datt Tripathi,
Aged around 60 years
3. Smt. Mithya Tripathi,
w/o Shri Mahendra Nath Tripathi,
Aged around 57 years,
All R/o 118/481, Kushal Puri,
Kanpur (U.P.).
....COMPLANANTS.
VERSUS
1. Union of India,
Through the General Manager,
West Central Railways,
Jabalpur (M.P.).
2. The Divisional Railway Manager,
West Central Railways,
Jhansi (U.P.).
....OPPOSITE PARTIES.
BEFORE:
HON'BLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT
HON'BLE SMT. NEERJA SINGH, MEMBER
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COUNSEL APPEARING FOR THE PARTIES :
SHRI DEEPESH JOAHI, LEARNED COUNSEL FOR COMPLAINANTS.
SHRI H.S. RAJPUT, LEARNED COUNSEL FOR
OPPOSITE PARTY NO.1.
SHRI RAMESHWAR PATEL, LEARNED COUNSEL FOR
OPPOSITE PARTY NO.2.
ORDER
The following order of the Commission was delivered by Rakesh Saksena, J. :
This order shall govern disposal of IA/1, an application filed by the opposite party no.1 under order 7 rule 11, C.P.C., and also the objection raised by opposite party no.2 challenging the maintainability of the complaint before this Commission. Learned counsel for the complainant has also filed reply to the said applications.
2. Briefly stated, facts of the case are that complainant no.1 / Ms. Rati Tripathi was working as an Academic Counselor in the Administration Department with PACE - IIT Education (P) Ltd. at Delhi after having completed her educational studies. In the night of 18.11.2014, Ms. Rati Tripathi boarded Train No.12920 Malwa Express from Nizamuddin Station for going to Ujjain. She had a reserved berth No.8 in coach No.S/7. In the late night she changed her berth and shifted to lower berth in the same compartment. It is alleged that some unidentified persons boarded the train from Lalitpur and tried to snatch the purse of Ms. Rati Tripathi. She resisted with all her strength, but they over-powered her and pushed her out of the running train and disappeared from the compartment. She was found lying on the railway tracks near station Karonda in unconscious and very bad physical state. She was referred to District Hospital, Sagar from where she was referred to Hamidia Hospital, Bhopal. She was subsequently -3- admitted in Bansal Hospital, Bhopal. She had suffered serious injuries and remained under critical condition for sufficiently long time. She was discharged from Hospital on 21.2.2015, but she remained completely dependent due to paralysis in her right side in the body. Still she is paralyzed and dependent on others for her daily activities. Before the incident she was working as an Academic Counselor in a reputed Company earning Rs.35,556/- P.M.. On the FIR lodged with the police, a case under section 394, Indian Penal Code was registered. With the allegation that it was on account of gross neglect in duties of the TTE and the staff of the Railways, the complainant / Ms. Rati Tripathi met with a such life threatening serious incident and that there had been no security personnel to prevent said untoward happening, the complainants have filed this complaint before this Commission claiming total compensation of Rs.99,40,000/-.
3. The opposite party / Railways have challenged the maintainability of this complaint in the Commission on the ground that in respect of the incident an offence has been registered under section 394, IPC and the case of the complainant falls under the definition of 'untoward incident' under section 123(c) of the Railways Act, 1989, therefore, in view of the provisions of section 124A of the Railways Act, 1989 and the provisions of section 13, 15 and 28 of the Railway Claims Tribunal Act, 1987, the complaint is not maintainable before the Commission. On the contrary, learned counsel for the complainant submitted that the objection taken by the Railways is grossly misconceived, since, despite existence of section 123 (c) of the Railways Act, 1989, provisions of section 124A of the Railways Act, 1989 cast an additional embargo on the opposite party to bear the liability on account of any accident arising out of their negligence. Since there are two different remedies available under the two different provisions of law, the complainants are free to seek redressal under the -4- provisions of Consumer Protection Act, 1986 also. The provisions of Railway Claims Tribunal Act, 1987 do not exclude the complaint filed under the provisions of Consumer Protection Act, 1986 especially in view of the fact that the Consumer Protection Act clearly postulates under section 3 that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
4. We have heard learned counsel for the parties at length and perused the record carefully.
5. Before reaching any conclusion, it is necessary to advert to the relevant provisions of the The Railways Act, 1989, The Railway Claims Tribunal Act, 1987 and the Consumer Protection Act, 1986.
The Railways Act, 1989 "Section 123 (c) "untoward incident" means ----
(1) (i) the commission of a terrorist act within the meaning of sub-
section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or 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.
- 5- "Section 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 dependent 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 for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.
- 6- Section 128. Saving as to certain rights. ---(1) The right of any person to claim compensation under section 124 or section 124A shall not affect the right of any such person to recover compensation payable under the Workmen's Compensation Act, 1923 (8 of 1923), or any other law for the time being in force; but no person shall be entitled to claim compensation more than once in respect of the same accident.
(2) Nothing in sub-section (1) shall affect the right of any person to claim compensation payable under any contract or scheme providing for payment of compensation for death or personal injury or for damage to property or any sum payable under any policy of insurance."
The Railway Claims Tribunal Act, 1987 "13. Jurisdiction, power and authority of Claims Tribunal. - (1) ...........................................
(a) ...........................................
(b) ........................................... (1A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of section 124A 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 section 124A of the said Act or the rules made thereunder.
(2) The provisions, of the Railways Act, 1989 (24 of 1989) and the rules made thereunder shall, so far as may be, be applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act.
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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 (1A) of section 13.
28. Act to have overriding effect. ---- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
Consumer Protection Act, 1986 "3. Act not in derogation of any other law. ---- The provisions of thie Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
6. Learned counsel for the complainant submits that the provisions of section 124A of the Railways Act, 1989 cast an additional embargo on the opposite party to bear the liability on account of any accident arising out of their negligence. Since there are two different remedies available to complainant under the two different provisions of law i.e. , the Railway Claims Tribunal Act, 1987 as well as under the Consumer Protection Act, 1986, the claim for compensation before the Consumer Forums cannot be held to be barred. He submits that in view of the provisions of section 128 the right of any person to claim compensation under section 124A does not affect his / her right to recover compensation under any other law for the time being in force. The bar is only to the effect that such person shall not be entitled to claim compensation more than once in respect of the same incident. Learned counsel further submits that the provisions of the Consumer Protection Act are since in addition and not in derogation of any other law which may provide compensation, the complaint before the Commission is clearly maintainable. To support his arguments -8- learned counsel for the complainants has placed reliance on the ratio of the Apex Court decision rendered in Sumatidevi M. Dhanwatay Versus Union of India and others, (2004) 6 SCC 113 and the decisions of the National Commission in Smt. Vinaya Vilas Sawant Versus Union of India, 2007 SCC OnLine NCDRC 86, Union of India & Anr. Versus Savitaben Sumanbhai Patel & Ors., 2011 SCC OnLine NCDRC 213, Smt. Nirmal Devi Chopra V. Union of India & Ors., 2013 SCC OnLine NCDRC 835 and Union of India Versus Ashok Prasad & Anr., 2015 SCC OnLine NCDRC 4137.
7. In case of Sumatidevi, supra, a violent crowd entered the compartment in Howrah Bombay Mail, broke the doors, windows and assaulted passengers and forcibly took away gold, silver and diamond jewellery and other valuables of the complainant. An argument was advanced by the Railways that the complaint was not maintainable under the provisions of section 100 and 103 of the Railways Act, 1989. The Apex Court observed "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 and even otherwise, under section 3 of the Consumer Protection Act, 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. In our opinion, the situation is different in the instant case since the plea about the maintainability of the complaint challenging the jurisdiction in this Commission has been specifically taken.
8. In case of Smt. Vinaya Vilas, supra the complainant and her husband after getting down from the train at station when were passing over the railway FOB, suddenly one slab of the said railway FOB collapsed as a result several passengers including complainant and her husband fell on the -9- railway track and sustained injuries. Before they were removed to Hospital their ornaments and belongings were robbed by some persons. The District Forum dismissed the complaint for compensation. The State Commission also dismissed the appeal solely on the ground of bar of jurisdiction by referring to section 124A of the Railways Act, 1989 and sections 13 (1A) and 15 of the Railway Claims Tribunal Act, 1987 hence the complainant preferred revision before the National Commission. The National Commission observed "that the submission made by the complainant's counsel that for such an accident neither the Railways Act, 1989 nor the Railway Claims Tribunal Act, 1987 provided any remedy, therefore, complaint before Consumer Forum was maintainable. The National Commission observed "In our view, the aforesaid submission is justified. If we refer to the definitions of the word 'accident' and 'untoward incident' provided respectively under sections 123 (a) and 123 (c) of the Railways Act, 1989 and the provisions of section 124 of that Act, the accident that took place on account of collapse of the FOB, and led to the consequent injuries caused to the complainant is not covered." It was further observed "that section 124 would be applicable in cases where an accident occurs either due to collision between trains carrying passengers or the derailment or other accident to a train or to any part of a train carrying passengers." It was thus neither an 'accident' as covered under section 124 nor an 'untoward incident' for which compensation is provided under section 124A of the Railways Act, 1989. The aforesaid part would not be applicable to the facts of the present case, because, in the said case, the complainant and her husband after getting down from the train were crossing FOB maintained by the Railways which suddenly collapsed. Since the facts of Smt. Vinaya Vilas, supra are distinguishable, it has no application in the instant case.
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9. In case of Ashok Prasad, supra the complainant fell asleep in the train. When he woke up in the morning he found that his three suit cases were missing. They were probably stolen by some unauthorized person travelling in the train. On Railway's taking plea about bar of jurisdiction of the Consumer Fora, the National Commission observed :
"Section 13(1)(b) deals with jurisdiction of railway powers which is also not the case before us. Section 13 (1A) provides that the Railway Claims Tribunal shall exercise its jurisdiction in respect of claims for compensation now payable under Section 124A of the Railways Act, 1989.
Section 124A deals with the claim relating to compensation on account of untoward incident, therefore, it is clear that the present case cannot be the subject matter of section 124A.
From the above discussion, it is clear that jurisdictional bar in view of section 15 of the Railway Claims Tribunal Act, 1987 does not operate in the instant case which relates to theft of luggage carried by the passenger by an unauthorized person / persons."
It is, thus, apparent that the facts of Ashok Prasad's case, supra, are not applicable in the case in hand.
10. In case of Smt. Nirmal Devi Chopra, supra, complainant's husband R.C. Chopra while travelling in train was administered tea by some unauthorized person travelling in the train which was laced with some drug which induced deep sleep. Shri Chopra was robbed off of his cash and demand drafts. On railways taking defence about the maintainability of the complaint before the Consumer Forum in the light of sections 13 and 15 of the Railway Claims Tribunal Act, the National Commission took the view that there lies no rub in entertaining this complaint because it does not fall under section 13 of the Railway Claims Tribunal Act, 1987. This case pertains to the 'service' provided
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by the Railways. Consequently, the objection raised by the counsel for the Railways was eschewed out of consideration. Similarly, in case of Savitaben Sumanbhai Patel, supra where the deceased was hit by a goods train while he was crossing the railway tracks to board the train and had died on the spot the National Commission keeping in view the provisions of section 128 of the Railways Act which saved the right of an affected person to recover compensation under any other law for the time being in force and provision of section 3 of the Consumer Protection Act that the provisions of the Act are in addition and not in derogation of any other law for the time being in force observed that the provisions of the Consumer Protection Act provided additional remedy to the consumer as such the Consumer Fora were competent to entertain claims cover and fall under relevant sections of the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987.
11. It is significant to note that in case of Rakesh Patralekh versus Union of India & others, 2010 CTJ 770 (CP) (NCDRC) in which complainant's father by a sudden moving of a train while boarding fell between the track due to which his leg got cut, a Bench comprising of Hon'ble Mr. Justice K. S. Gupta, Presiding Member and Hon'ble Mr. Justice R. K. Batta, Member after elaborately considering the provisions of the aforesaid three Act observed :
"6. On a conjoint reading of the provisions contained in aforesaid sections 123 (c), 124A of the Railways Act, 1989 and 13 and 15 of the Railway Claims Tribunal Act, 1987 would show that on establishing of Railway Claims Tribunal, any claim for 'untoward incident' payable under section 124A by the Railway administration shall be entertained only by the Tribunal and no court or other authority including the consumer forums shall have, or be entitled to exercise jurisdiction, powers or authority in relation to such claim. Obviously, present complaint is not
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legally maintainable before this Commission. In view of the bar of jurisdiction created by said Section 15, the decision in F.A. No.2209 of 2004 - Smt. Vinaya Vilas Sawant v. Union of India and in Kishore Lal v. Chairman, Employees' State Insurance Corporation, 2007 CTJ 557 (SCC) (CP)= (2007) 4 SCC 579 on which reliance has been placed will not be of any help to the complainant. Impleadment of the Railway Medical Officer and SHO, Mokama Rail Police as opposite party nos.4 and 5 will not make any difference as in substance the claim made is in respect of untoward incident which is entertainable only by the Railway Claims Tribunal.
7. Complaint is, therefore, dismissed being not maintainable under the Act."
12. The question before us is now as to what course should be adopted in view of the inconsistent views taken by the National Commission in cases of Rakesh Patralekh, supra, Savitaben, supra and Smt. Nirmal Devi Chopra, supra. All the aforesaid three decisions have been rendered by the Benches of equal strength. In case of conflict of decisions comprising equal number of Judges / Members, the decision of earlier Bench is binding unless it has been considered and distinguished. [Jabalpur Bus Operators Association and others vs. State of M.P. and others,2003 (1) M.P.L.J. (Special Bench of 5 Judges)]. The decision in case of Rakesh Patralekh was delivered on 19.4.2010 whereas in cases of Savitaben and Smt. Nirmal Devi, the decisions were rendered on 5.5.2011 and 16.9.2013, respectively. Admittedly, in cases of Savitaben and Smt. Nirmal Devi, the ratio of Rakesh Patralekh's case has not been considered. Therefore, as a matter of judicial discipline the ratio of Rakesh Patralekh case (supra) has to be followed.
13. It is also apposite to keep in view the objects and reasons for enacement of Railway Claims Tribunal Act, 1987 expressed in the Preamble of the Act. The preamble states :-
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"An Act to provide for establishment of a Railway Claims Tribunal for inquiring into and determining claims against a railway administration for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to it to be carried by railway or for the refund of fares or freight or for compensation for death or injury to passengers occurring as a result of railway accidents or untoward incidents and for matters connected therewith or incidental thereto."
14. As far as the applicability of section 128 of the Railways Act, 1989 is concerned in view of clear bar for exercise of any jurisdiction or powers or authority in relation to the matters referred to in sub-sections (1) and (1A) of section 13 of the Railway Claims Tribunal Act or any court or other authority, the provisions of section 28 of the Railway Claims Tribunal Act confer overriding effect to the provisions of the said Act clearly stating that the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. The use of words 'notwithstanding anything inconsistent' in any other law indicate exclusion of the applicability of section 128 of the Railways Act, 1989. In these circumstances, in our opinion, the exercise of jurisdiction by the Consumer Fora in the matters of 'untoward incident' would be in derogation of the provisions of the Railway Claims Tribunal Act, 1987.
15. For the aforesaid reasons and in view of the ratio of the decision rendered by the National Commission in case of Rakesh Patralekh (supra) we hold that the claim made by the complainant in respect of 'untoward incident' is entertainable only by the Railway Claims Tribunal and not by the Consumer Fora. The application IA/1, filed by the opposite parties is therefore allowed. The complaint is resultantly dismissed being not maintainable under the Consumer Protection Act, 1986. No order as to costs.
(Justice Rakesh Saksena) (Smt. Neerja Singh)
PRESIDENT MEMBER