State Consumer Disputes Redressal Commission
Jyoti Mishra vs Indian Railways on 29 September, 2008
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: 29-09-2008 Complaint NO.C-85/2004. 1. Smt. Jyoti Mishra, W/o. Late Shri Rajendra Pd Mishra, R/o. 5B, Corporation Colony, Nagpur-10. 2. Shri Swadesh Mishra, S/o. Late Shri Rajendra Pd Mishra, R/o. 5B, Corporation Colony, Nagpur-10. 3. Km. Sakshi Mishra, D/o. Late Shri Rajendra Pd Mishra, R/o. 5B, Corporation Colony, Nagpur-10. (Through mother and natural Guardian Complainant No.1) . Complainants Through Dr. Bipin K. Dwivedi, Advocate Versus INDIAN RAILWAYS, Through: (i) The Chairman, Railway Board, Rail Bhawan, Rail Mantralaya, New Delhi. (ii) The Secretary, Ministry of Railways, Rail Bhawan, New Delhi. .. Opposite Parties Through Mr .S.A. Sattar, Advocate CORAM JUSTICE J.D. KAPOOR, PRESIDENT MS. 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. Briefly stated, the allegations of the complainants in the present complaint are that they are the LRs of late Shri Rajendra Prasad Mishra. The complainant No.1 and 3 along with the deceased had boarded the Howrah-Bombay Mail Train No. 2321 on 5-10-2002 at 5.20 AM at Gaya for Itarsi in a three tier reserved compartment. They ticket number was 22598173 and the reservation ticket No. was 199329. However, they were allotted one reserved berth by the TTE though he issued a receipt for sleeper charges for two berths but promised the allocation of second berth before Mughal Sarai. The doors of the compartment in which the complainants were traveling along with the deceased were open when the train started and they remained open throughout the journey. The train was scheduled to reach Mughal Sarai Station at about 8.00 AM.
When the Mughal Sarai station was approaching and the TTE still had not come to them for allocation of second berth, the deceased Shri Rajendra Prasad left the seat for going to the toilet as well as for searching out the TTE. However, due to some problem on the railway track the train stopped at Mughal Sarai station for a long time. When the deceased did not return for a considerable time, the complainant No.1 started looking for him in the compartment as well as on the platform and also went to the Help Centre at the platform for announcement though the person manning the help centre did not make the announcement and consoled her that her husband would return and she had no reason to worry. Thereafter when the train left Mughal Sarai station the complainant No.1 again searched for her husband in different compartments. The doors of all the compartments were open and there were no attendants or TTE in the compartments. There were also huge gaps in the vestibules joining the compartments and these vestibules were not having proper grill or other safety measures. However, the complainant could not search the entire train as her minor daughter was all alone and was sick. When the train reached Allahabad the complainant also approached the Deputy Station Superintendent who advised her to go to the help centre who informed that there was no accident report. The complainant spent a sleepless night with her minor daughter.
2. The train reached Itarsi on 6-10-2002 at about 7.30 AM and the complainant waited at the platform for about 10 minutes in the hope that the deceased would get down from some other compartment and join them. She again went to the Office of the Deputy Station Superintendent, Itarsi, for help where the officer on duty asked her to go to the GRP Itarsi and file a missing report and gave her a blank paper and asked her to sign it. A co-passenger wrote a complaint on the said paper and she signed it. As per the complainant since she was not in the right frame of mind at that particular point of time she did not bother to go through the contents of the complaint at that time. After being contacted, her elder son complainant No.2 and some relatives reached Itarsi station and on enquiry from the GRP Thana on the same day it was informed that one dead body had been recovered from near Chandauli Station which resembled the description of the deceased. The complainant and her son on being shown the photographs by the GRP personnel identified it as that of her husband. It was informed to her that the dead body was recovered between the two railway lines on a spot near Chandauli station approx. 18 Kms from Mughal Sarai station. The complainants received the dead body of the deceased and performed the last rites. However, after the mourning period was over, when the complainant read the missing report dated 6-10-2002 she was shocked to discover that it was incorrectly mentioned therein that her husband was suffering from anxiety, blood pressure and sometimes he suffered from bouts of fits etc. and that his slippers were lying at the wash basin. The complainant filed a representation dated 19-10-2002 to the OP stating the correct facts as her husband never suffered from any of the diseases mentioned in the missing report.
3. As per the complainant the deceased died due to the gross negligence of the OPs as the OPs were bound to provide safe vestibules and attendants in every compartment to ensure that the doors of the compartments are closed while the train is in motion. It is further alleged that had the TTE returned to them as promised before Mughal Sarai station to allocate the second berth the deceased would not have gone in search of him and would not have met with the accident.
4. On the above allegations the complainants have claimed a compensation of Rs. 50.00 Lacs on the ground that the deceased was getting a salary of Rs. 11,340/- and he was employed as Asstt. Librarian with Nagpur Municipal Corporation.
5. However, OPs while raising the objection as to the jurisdiction of this Commission on account of bar created by Sec. 13 & 15 of the Railway Claims Tribunal Act, 1987, and also its territorial jurisdiction as the accident in question had occurred between Mughal Sarai and Gaya, in their defence came up with the plea that the complainants and the deceased were not having tickets to travel in the reserved compartment and hence extra fare ticket (EFT) was issued by the TTE and no charges were levied towards berth and hence no berth was allocated to them. The EFT No. was 188329 instead of 199329 as mentioned by the complainant. The TTE never promised to allocate them berth before Mughal Sarai. It was further contended by the OPs that they were not bound to deploy at least two attendants or TTES to keep the doors of the compartment locked. OPs also deniedthe allegation that there was huge gap in the vestibules or that the doors of the compartments were open when the train was in motion. As per the OPs the deceased met with the accident due to his own negligence.
6. In order to demonstrate the negligence on the part of the staff of the OP in not ensuring that the doors of the compartments were closed in the running train in order to prevent people from falling down from the train, the counsel for the complainant has relied upon the report of GRP, P.S. Mughal Sarai, which is part of the OP-Railways, which is in vernacular and translated into English as under:-
The investigation was entrusted to the undersigned along with various documents like Panchnama and post-mortem report etc. in respect of the deceased Virender Ambika Pd. The facts as found were tha on 5-10-2002 the deceased along with his wife and brother-in-law were traveling, in Train No. 2321 UP Bombay Mail, to Itarsi. The deceased was a patient of heart and BP.
When the train reached before Chandoli and was earlier in the eastern direction the deceased went to the door of the train by telling his wife that he was feeling some difficulty. When the train reached near the outer western signal the deceased fell down from the gate of the coach and died by coming under the train. The investigation has not revealed any criminal offence nor is any need for any police action.
7. We have accorded careful consideration to the rival contentions of the parties. May be, the version of the OP is correct that the TTE never promised the passengers to allot any birth before Mughal Sarai station but once they were issued tickets by charging extra fare and allowed to travel in the train they became consumers of the OP-Railways and therefore it was the duty of the OP to protect their life and property.
8. The main defence raised by the OP is that the OP has not issued any tickets for reserved compartment and that they are not bound to deploy at least 2 TTEs to keep the doors of the compartments locked.
9. At the out set the OP has raised the legal objection as to the maintainability of the complaint before this Commission as the same is liable to be filed before the Railway Claims Tribunal and has relied upon the decision of the National Commission in the case of TC Juneja v Northern Railway.
10. We are sorry to point out that large number of decisions of the Supreme Court interpreting the provisions of Sec. 3 of the Consumer Protection Act have been totally ignored. The Supreme Court in case after case observed that the remedy under the Consumer Protection Act is in addition and not in derogation of any other law for the time being in force, including the Indian Railways Act. It has also observed that if there is any other legal forum or tribunal available still the consumer has the right to file a complaint under the Consumer Protection Act, so much so, the Supreme Court has held that even if there is an arbitration clause and arbitration proceedings or civil proceedings are pending before the Arbitrator or Civil Court, still the consumer has remedy for seeking compensation under the Consumer Protection Act. The reason is simple, that these remedies under the Consumer Protection Act are available from the charge of deficiency in service and not for any other violation of the terms of contract. Deficiency in service on the part of the service provider has to be tested on the anvil of Sec. 2(1) (g) of the Consumer Protection Act, which means:-
any fault, imperfection, shortcoming or inadequacy in the quantity, 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 undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
11. Another reason provided by the Supreme Court is that no other law provides remedy for compensating the consumer for mental agony, harassment, emotional suffering, physical discomfort etc. as the Consumer Protection Act. While expanding the word compensation the Supreme Court has in case after case and recently in Ghaziabad Development Authority v. Balbir Singh, has categorically held that each and every element of suffering while availing service as a consumer has to be taken into consideration while compensating him for the loss or injury or otherwise suffered by him due to the negligence or deficiency in service of the service provider.
12. The view taken by the National Commission may have a persuasive value but as per the Constitution of India, the law laid down by the High Court and Supreme Court are binding on all the Forums including the National Commission, as these are only authorities, which can law down the law.
All other authorities take decisions that may have persuasive value but have no binding value if there is a decision of the Supreme Court to the contrary. It is because of this law that large numbers of orders of the National Commission have been challenged before the High Court and some of them have been set aside by laying down the law giving directions to the Forum and Commissions.
13. As regards the objection that the provisions of Indian Railways Act bar the jurisdiction of any other Court, the 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 applicable for inquiring into or determining any claims by the Claims Tribunal under this Act.
14. A 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.
15. 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,.
16. There is a significant decision of the Supreme Court in the case of Sumati Devi M. Dhanwantay v Union of India II (2004) CPJ 27 (SC), in respect of injuries suffered by consumers while traveling in train. This decision has been given under the Consumer Protection Act, and while dealing with the concept of deficiency in service and liability, held that he railway administration was expected to take reasonable steps to safeguard the interests of passengers against any incident of theft by unauthorized passengers.
In this case, the lady passenger was traveling from Nagpur to Bombay by Howrah Bombay Mail and was carrying luggage which included gold, pearl, silver and diamond jewellery and other valuables valued at Rs. 1,11,756/- While she was traveling she was assaulted by some unauthorized passengers and her gold, silver, pearl, diamond and other valuables were taken away forcibly. This incident occurred on 4-12-1991.
Thousands of persons entered into the compartment and assaulted the passengers, including the appellant. The crowd was so violent that they broke the doors, windows, glass panels, seats, berths and toilets etc. The crowd committed so many other illegal acts of assaulting the bona fide passengers. They molested the women and even raped the young girl passengers. The appellant pulled the alarm chain three times as a result of which the train stopped at Igatpuri station. She along with other bona fide passengers got down at that station and approached the railway authorities for protection but without any assistance. On reaching Bombay, she lodged a complaint with the police about the incident and approached the Consumer Disputes Redressal Commission, claiming compensation of Rs. 9,32,256/-
The railway administration denied its liability as to the theft, injury suffered by her. The only contention of the railway administration was that it was not responsible for the loss of luggage and injuries cause to the passenger. All these pleas were repelled by the Maharashtra State Commission. On identical parameters Sec. 124A of the Railway Act, 1989 was referred. Under this provision of Railway Act it was held that the railway administration cannot escape the liability having regard to the facts and circumstances of the case and in the light of the incident that had taken place.
17. In S/W Railways V/s Pinki Gupta 2008 CPJ 184 (CP) SGTC, similar view has been taken, in which case the facts were almost identical. Certain observations made in this case are as under:-
Before parting with this case, we would like to observe that passengers possessing unreserved tickets, sales persons and other strangers casually sit and travel in reserved compartments and the railway staff does not seriously object to this. This poses a risk not only to the passengers traveling the reserved compartments but also to their luggage. For having collected reservation fee, the railway department is bound to provide sufficient safety to the passengers traveling in reserved compartments. The railway department should provide one guard at each door of the reserved compartment round the cloak and take all safety measures. We hope the railway department will take immediate steps in this regard in the interest of the public.
18. It is obligatory function of the service provider like the railways to take every precaution particularly in the running train at past speed that no door of the compartment is kept open as in the running train the temptation of the consumer standing at the door and the children running here and there in the compartment cannot be ruled out and if due to their negligence if anything happens the railways as service provider has to compensate the consumer though the contributory negligence of a person in taking the risk of standing near the door in the fast running train is only a mitigating circumstance.
19. In the instant case, the death was not due to the failure of heart but due to the person having come under the wheel of the train because he fell down from the running train door of which remained open. To say that it is not bound to post two TTEs or other persons to see that the doors are kept closed is all the more aggravating circumstance so far as the deficiency in service is concerned.
Whenever a consumer decides to travel by train it is the duty of the railways or the service provider to see that the life and property are not jeopardized or endangered and are protected at every cost. Wherever the service provider does not have the paraphernalia and wherewithal to provide such foolproof protection, it has to suffer the consequences. It is high time that the railways should improve their conditions particularly their staff to ensure safety of life and property of each and every consumer as it is now earning huge profits and is not an organization like other PSUs that are running in losses.
20. However, taking over all view of the matter as well as the deceased at the relevant time suffering from some health complications like heart problem and BP should have avoided going to the door of the running train, but at the same time the staff of the OP was expected to close the doors in the running train at least and not to allow passengers to stand at the gate and therefore we award compensation of Rs. 50,000/- only besides Rs. 10,000/- as cost of litigation.
21. The complaint stands disposed of in aforesaid terms.
22. Payment shall be made within one month from the date of receipt of a copy of this Order.
23. Complaint stands disposed of in aforesaid terms. Payment shall be made within one month from the receipt of a copy of this Order.
24. Copy of Order as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK