National Consumer Disputes Redressal
Smt.Vinaya Vilas Sawant vs Union Of India on 29 November, 2007
NCDRC NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 864 OF 2006 (From the order dated 29.9.05 in Appeal No.2209/04 of the State Commission, Maharashtra) Smt.Vinaya Vilas Sawant Petitioner Versus Union of India Respondent BEFORE : HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER MR. ANUPAM DASGUPTA, MEMBER For the Petitioner :Mr.Shirish V. Deshpande, Advocate For the Respondent :Mr.Rajeshwar Singh, Advocate 29.11.2007 O R D E R
M.B.SHAH, J. PRESIDENT:
The question which requires consideration in this Revision Petition is :
Whether a passenger after alighting from a train, while passing over the railway foot-over-bridge (FOB) is injured because of the collapse of the bridge (i.e., the FOB), would be a consumer entitled to file a complaint under the Consumer Protection Act, 1986?
In our view, after purchasing a railway ticket, a passenger would be a consumer as he avails of the services of the Railways, including the use of platform, foot path, over bridges for ingress to and egress from train and, if there is any deficiency in service in providing defective ingress or egress which causes injury, then such a person is entitled to file a complaint under the Consumer Protection Act, 1986.
Facts:
It is the say of the complainant that she, along with her husband, Mr.Vilas Sawant, met with an accident on 28.9.1992 when they were returning home from Ghatkopar to Jogeshwari via Dadar by train. After getting down from the train at Jogeshwari Station, at about 8.30 PM, when they were passing over the Railway FOB to reach Jogeshwari (East), suddenly one slab of the said railway FOB collapsed. As a result of this collapse, the complainant as well as her husband, along with several other passengers, fell on the railway track and sustained injuries. At the relevant time, it was raining heavily, which made matters worse. Some passengers even died due to the collapse of the FOB.
The complainant and her husband were removed to the Cooper Hospital in an unconscious condition. Before she was removed to the hospital, her ornaments and belongings were robbed by some persons. It is her say that she suffered multiple injuries on her person as a direct consequence of the FOB collapse and steep fall from the FOB to the tracks.
She remained under treatment in the hospital from 28.9.1992 till 6.11.1992. Thereafter, she was shifted to Nanavati Hospital on 7.11.1992 where she was under treatment till 21.1.1993.
It is her say that she is working with MTNL as a Telephone Operator. She could not attend to her duties during the period of her hospitalization and was required to take Medical Leave from 28.9.1992 to 28.3.1995 as she became handicapped and disabled due to the accident. As per the Medical Certificate issued by the Medical Officer, Cooper Hospital, Municipal Corporation of Greater Bombay, she suffered the injuries as under:
i) D11 # with paraplegia
ii) MA over the (L) elbow post aspect
iii) MA over the (L) ankle
iv) (L) eye CLW (L) Cel
v) Fracture in the back bone (spine) On account of the grievous suffered by the complainant, she approached the District Forum, Mumbai Suburban District, by filing Complaint No.210/1999. The District Forum dismissed the complainant on the basis of the majority opinion.
However, one Member passed a specific order that the complainant was entitled to receive, in all, Rs.2,50,000/- with interest at the rate of 9% p.a. from the date of the accident till realization, along with Rs.3000/- as costs.
Against that majority order, the petitioner preferred Appeal No.2209/2004 before the State Commission, Maharashtra.
The State Commission dismissed the Appeal solely on the ground of bar of jurisdiction by referring to Section 124A of the Railways Act, 1989 and Sections 13(1)(a) and 15 of the Railway Claims Tribunal Act, 1987. Hence, the Complainant is in revision before us.
Learned counsel for the petitioner submitted that the impugned order passed by the State Commission was on the face of it illegal and erroneous because it did not at all appreciate the fact that with regard to such an accident neither the Railways Act nor the Railway Claims Tribunal Act provides for any remedy.
Findings:
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 Sec.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.
.I. The analysis of the relevant Sections is as under:
(a) Section 123(a) Section 123(a) provides that the word accident means an accident of the nature described in Section 124.
(b) Section 124 Nature of accident as described in Section 124, is 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, neglect or 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.
(c) Section 123(c) Similarly, Section 123(c) defines the phrase untoward incident would, inter alia, mean (i) the commission of a terrorist act within the meaning of sub-sectin (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or, (ii) a violent attack or the commission of robbery or dacoity; or, (iii) indulging in rioting, shoot-out or arson by any person or on any train carrying passengers, or in a waiting hall, cloakroom 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.
(d) Section 124-A Section 124-A provides for Compensation on account of untoward incidents. When in the course of working a railway an untoward incident occurs, then whether or not there has been an 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:
(i) Provided ..
From a bare perusal of the aforesaid definitions and provisions, it is clear that the accident that occurred in the present case, would not be covered by the said definitions. From the aforesaid Sections, it is also amply clear 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.
Further, Section 123(c) also does not cover the accident that took place in the present case, as the accident did not result due to (i) any terrorist activity; (ii) arosn/decoity; (iii) falling of any passenger from the moving train.
In the present case, it is thus neither an accident as covered under section 124, nor an untoward incident for which compensation is provided under section 124-A. The aforesaid part would not be applicable to the facts of the present case, because the petitioner/complainant, after alighting from the train, was crossing the FOB maintained by the Railways, which suddenly collapsed. Undisputedly, that FOB is part and parcel of the railway premises and is thus required to be maintained defect-free so that passengers can cross the premises safely, that is to say, without the risk of being injured by passing of trains on the tracks below.
II. Enquiry Report:
Further, in an enquiry ordered by the Railways, it was found that there was negligence on the part of the Railway officials concerned in maintaining the FOB. Learned counsel for the petitioner states that the said Enquiry Report was also produced before the District Forum. As per the said report, the cause of the collapse was negligence, which would be clear from the following extract of the Enquiry Report:
(a) Cause: the FOB has collapsed due to corrosion of weld connecting the cross girders to the boom of the foot over bridge truss. The cross griders slab did not have any other restrain to hold them. Signed Appropriate Authority.
(b) Staff responsible: Shri C.B.Shivcharan CBRI (I) BL. Signed Appropriate Authority.
(c) This bridge according to the register made available by the CBRI was inspected annually except in June, 1990-93. In the years 1984 and 85 the entries are that bottom boom angles are badly corroded and required to change immediately. The entries for the year 1986 to 1990 indicated general repairs carried out to bottom boom. On being asked as to specifically what repairs were carried out to the structure CBRI indicated that he had carried out repairs to the gussets connecting the different at bottom.
(d) It is apparent that the detailed and proper inspection of welds which were very important in the present case was not carried out. These welds gave away on fateful night.
(e) On the particular day, i.e. on 28 September 1992 there was a sudden wind with heavy rain fall. The monsoons in Bombay practically receded before 15 September 1992. The perfect shelter available on the foot over bridge was used by people and according to eye witness the bridge was packed. 3 stopping trains had cross the Jogeshwari Station just 5 10 minutes before the collapse.
(f) The loading of this bridge at the time of failure though cannot be ascertained exactly, appears to be higher than the design load of 500 kgs. Per square meter adopted for present day bridge.
The aforesaid inquiry report amply establishes deficiency in service on the part of the Railway administration in not maintaining the FOB properly.
III. Similarly, it is to be stated that the provisions of the Railway Claims Tribunal Act, 1987, would not be applicable to the present case because it confers jurisdiction on the Claims Tribunal constituted under the Railway Claims Tribunal Act, for claims for compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods, etc. Section 13 of the Railway Claims Tribunal Act, 1987 reproduced below:
13. Jurisdiction, powers and authority of Claims Tribunal.--- (1) 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 the Railways Act,--
(a) relating to the responsibility of the railway administrations as carriers under Chapter VII of the Railways Act in respect of claims for --
(i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to railway administration for carriage by railway;
(ii) compensation payable under Section 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.
[(1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Section 124-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 Section 124-A 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.
In the present case, the loss or injury is caused to human beings, and not to the animals and that it was not acting as a carrier of goods. Once Section 13 is not applicable, there is no question of applying the bar of jurisdiction under section 15 of the said Act.
IV. Apart from this, Section 128 of the Railways Act saves the right of the affected person to recover compensation under any other law for the time being in force.
Section 128 reads as under:
128. Saving as to certain rights: -- (1) The right of any person to claim compensation under Section 124 [or Section 124-A] shall not affect the right of any such person to recover compensation payable under the Workmens 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.
Further, Section 3 of the Consumer Protection Act, 1986, specifically provides that the provisions of the Act are in addition to and not in derogation of any other law for the time being in force.
Consumer Fora can exercise jurisdiction under the Act in cases when there is no specific bar. In Kishore Lal Vs. Chairman, Employees State Insurance Corporation, (2007) 4 SCC 579, the Apex Court has gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.
Dealing with similar contention, in the case of Geeta Jethani & Ors. Vs. Airport Authority of India & Ors., Original Petition No. 81 of 2001, decided on 5th August, 2004, (relying on the decision of the Apex Court in Indian Medical Association Vs. V.P.Shantha & Ors. (1995) 6 SCC 651), we have negatived the contention of the Airport Authority of India that as no consideration is received from the passengers who are coming from other countries, the provisions of the Consumer Protection Act, 1986 would not be applicable. It was held that mmaintenance of airports is a statutory function of the Airport Authority of India and, that without using the airport premises, passengers coming from other countries cannot enter into Indian territory.
Similar would be the position in the present case. It is the duty of the Railways to maintain, in good order, platforms, foot paths, over bridges for ingress and egress of the passengers and all other passenger facilities and amenities. For this maintenance, passengers are paying fee, by way of purchase of journey tickets or platform tickets.
The next question, which would require consideration, would be: Whether the petitioner can be said to be a consumer ?
In our view, a railway passenger, who purchases a ticket for traveling by the railway, would undoubtedly be a consumer because he pays for availing of the services to be rendered by the railways. That person would have right to ingress to the train as well as egress from the train.
For boarding and alighting the train, he is required to pass through the railway premises, i.e., the railway platform, over bridge, etc. In that set of circumstances, the services, which are required to be rendered by the Railways, would include maintenance of railway station, platform, as well as over-bridge, etc. It is not disputed that the FOB in this case is maintained by the Railways.
In view of the aforesaid discussion, in our view, impugned order passed by the State Commission, dismissing the complaint as not maintainable, is on the face of it erroneous and is set aside. Consequently, the majority order passed by the District Forum is also set aside.
It is to be stated that in the minority decision, one Member of the District Forum awarded compensation of Rs.2,50,000/- with interest at the rate of 9% p.a. from the date of the accident, i.e., 28.9.1992 till the date of realization, along with costs quantified at Rs.3,000/-. Undisputedly the accident took place on 28.9.1992 and the Complainant was required to remain as indoor patient upto 21.1.1993. The learned Counsel for the Petitioner submits that compensation more than what is awarded by the one Member of the District Forum should be granted.
At this stage, learned counsel appearing on behalf of the Railways seeks some time for obtaining instructions with regard to the compensation payable to the complainant for the injuries and loss suffered by her.
Stand over to 29th January 2008.
Sd/-
.J. ( M.B. SHAH) PRESIDENT Sd/-
(RAJYALAKSHMI RAO) MEMBER Sd/-
(ANUPAM DASGUPTA) MEMBER /sra/ 23 / Court-1