National Consumer Disputes Redressal
Vijay Bhargava vs Union Of India & Anr. on 24 November, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1073 OF 2019 (Against the Order dated 02/04/2019 in Complaint No. 98/2009 of the State Commission Daman and Diu) 1. VIJAY BHARGAVA FLAT NO.4, BLOCK M11, MAYFAIR ROAD, KOLKATA-700 019, WEST BENGAL ...........Appellant(s) Versus 1. UNION OF INDIA & ANR. THROUGH THE RAILWAY MINISTRY,
RAIL BHAWAN, 1, RAISINA ROAD, NEW DELHI-110001 2. THE GENERAL MANAGER, NORTHERN RAILWAY, BARODA HOUSE, COPERNICUS MARG, NEW DELHI-110 001 ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),MEMBER
FOR THE APPELLANT : MS.RITU SINGH MANN, ADVOCATE
MR. DHEERAJ K. GARG, ADVOCATE
MR. SANDEEP CHAUHAN, ADVOCATE FOR THE RESPONDENT : MR.SANJEEV KUMAR VERMA, ADVOCATE
Dated : 24 November 2023 ORDER
AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER
1. The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") against the Order dated 02.04.2019 passed by the learned State Consumer Disputes Redressal Commission, Delhi (hereinafter referred as "the State Commission"), in Consumer Complaint No. 98 of 2009, wherein the Complaint was rejected.
2. Brief facts of the case as per the Complainant are that on 04.05.2007, the Appellant was traveling to New Delhi from Kolkata by Howrah-Delhi Rajdhani Express in AC-II class. On 05.05.2007, when the train approached Shivaji Bridge Railway Station, New Delhi, the Appellant went to use washroom near the entrance of the Coach. When he stepped out, he saw an unruly crowd of about 10-12 people who did not appear to be passengers of the same coach. He tried to make way for other passengers waiting to use the washroom and return to his seat. Suddenly, he was pushed by the crowd towards the main door of the coach which was negligently left unlocked by the Respondent's staff on duty and open ajar. Consequently, he was thrown out of the train and fell on the railway track. After being found injured on the railway tracks, the Police first took him to Ram Manohar Lohia Hospital, New Delhi and informed the relatives. The relatives of the Appellant thereafter admitted him to the Indraprastha Apollo Hospital, New Delhi with injuries to his chest, pelvis, left arm and left foot. As the left foot was severely crushed with loss of skin and tissue, the doctors were constrained amputate his left leg from below the knee. The entire treatment, including post operative stay in the hospital lasted for over a month and the Appellant was eventually discharged on 07.06.2007. After discharge, he was fitted with a prosthetic limb. He had to remain in Delhi for follow up medical checks and undergo physiotherapy and rehabilitation for several days to be able to carry out his daily routine with minimal help. His family members had also to travel from Kolkata and stay in Delhi till he was able to return to Kolkata. His daughter, who lives and works in USA also had to travel to New Delhi to assist her mother, who was battling cancer and him. She had to take leave from her work to travel to New Delhi and stay at a considerable expense. The cost of the stay and treatment at the Indraprastha Apollo Hospital, medicines, doctors fee, prosthetic limb etc, incurred by the Appellant totaled to Rs.10,59,774. Most of the original bills for Rs.8,78,151 towards hospital expenses, stay and treatment were reimbursable and submitted by him to his insurer M/s Genin India Pvt Ltd for applicable re-imbursement as per his medical claim with New India Assurance Company Ltd. He was reimbursed Rs.3,75,000, the maximum payable by the insurer. He continues to require medication, physiotherapy, replacement of the prosthetic limb and accessories as necessary. He not only suffered the loss of his limb but he and his family underwent severe pain, emotional and mental trauma coupled with colossal expenses purely a result of negligence of the Respondent's staff in leaving the gate of the coach ajar, unsecured and unattended. His entire life is now an ordeal as he is inflicted with permanent disability. He is unable to regularly attend to his Company's matters, operations, meetings, and customers leading to loss in business. Although no amount of monetary compensation can be deemed sufficient for the loss of his leg, mental agony and trauma already undergone and will continue to be suffered lifelong on account the permanent disability suffered by him, he sought the following reliefs:
(i) Rs.6,84,774 for expenses incurred on treatment and hospital stay (after deducting Rs. 375,000 reimbursed by the Insurer out of Rs.10,59,774.00).
(ii) Rs.5,00,000 towards expenses incurred for travel and stay of his family members in Delhi to look-after him during this Hospital stay between 05.05.2007 and 07.06.2007 and post discharge stay in Delhi for follow up treatment and review.
(iii) Rs. 7,20,000 (@ Rs. 6000 per month) as recurring expenses for physiotherapy, medication, regular medical check-ups etc., calculated for a period of 10 years.
(iv) Rs. 3,04,000 towards cost of two replacements of prosthetic limb, which he would require in his lifetime.
(v) Rs. 1,98,000 as replacement cost of 18 rubber linings in the prosthetic limb, which he would require.
(vi) Rs. 5,00,000 as compensation towards physical and mental agony, emotional trauma and harassment undergone.
(vii) Rs. 50,00,000 as compensation for permanent physical disability on account of loss of the left leg.
3. The OP in its written statement before the learned State Commission contended that the Consumer Forum has no jurisdiction in the case as per Section 13, 15 and 8 of the Railways Claim Tribunal Act and Sections 123 and 124, 124-A and 125 of the Railways Act. Under Section 124-A of Railways Act, no compensation is payable to any such individual by the Railways, if the passenger suffered injury due to his foot Injury or his own criminal act. In terms of Section 125 of the said Act, remedy for such claims is only before Railway Claims Tribunal.
4. The State Commission vide the Impugned Order dated 02.04.2019 passed the following order:
"In view of the case law cited by counsel for OP. I find that jurisdiction of this Commission is barred by section 15 Railways Claim Tribunal Act. The complaint is rejected with liberty to the complainant to seek remedy before Railways claim Tribunal Act, after excluding the time spent in the present proceedings as per section 14 of the Limitation Act and decision of the Hon'ble Supreme Court in Laxmi Engg. Works vs P.S.G. Industrials Institute AIR 1995 SC 1428."
5. Being aggrieved, the Appellant/Complainant has filed the present First Appeal No.1073 of 2019 with the following prayer:
(a) allow the Appeal of the Appellant by setting aside the impugned order,
(b) requisition the judicial records of Consumer Complaint bearing No. CC/98/2009 titled Vijay Bhargava Versus Union of India & Anr. from the Ld. State Commission, Delhi,
(c) and decide the complaint of the Appellant on merits, and allow the same in terms of the reliefs claimed in the complaint,
(d) award the costs of litigation to the Appellant throughout, and
(e) pass any other order that this Hon'ble Commission may deem fit and proper in the interest of justice."
6. In the present Appeal the Appellant/Complainant raised mainly the following grounds:
(a) The State Commission errored in ruling that it has no jurisdiction to entertain the present complaint in terms of Sections 13,15 and 8 of Railway Claim Tribunal Act and Sections 123, 124, 124A, and 125 of the Railways Act.
(b) Section 128 of the Railways Act, 1989, which clearly stipulate that the right of any person to claim compensation under Section 124 or Section 124A of the Railways Act, 1989 shall not affect right of such person to recover compensation payable under the Workmen Compensation Act, 1923 or any other law for the time being in force.
(c) The State Commission failed to hold that Sections 13 & 13(1A) of the Railway Claims Tribunal Act has no applicability to the present case. The complaint is maintainable under the Act, as he is a consumer of services provided by the Respondents. The Act is a special legislation specially enacted to provide speedy redressal to Consumers. As he purchased a ticket and was a bonafide passenger it cannot be disputed that he is a consumer of services provided by the Respondent.
(d) Section 124A of Railways Act provides for compensation whether or not there lies any fault of the part of railways. The compensation payable by the Railway Claims Tribunal (as then in vogue) was maximum Rs. 4 Lakhs in case of death. Section 124A of the Railways Act provides right to bring action for default or negligence, which is distinct from the right of a passenger for compensation under Section 124A which is payable even if there is no fault of the Railways.
(e) The present was not a case of railway accident. It was a case of grievous injury to a passenger which was a direct result of negligence of Opposite Parties staff. Hence, the jurisdiction of the consumer courts could not be ousted.
(f) The reliance by the OPs on the judgement of the Hon'ble Calcutta High Court in General Manager, Eastern Railway, Kolkata & Ors Vs Shri Apurba Konar, MANU/WB/1370/2009 was entirely misplaced as the facts of the case are different. In case of Mr Konar, the compensation claimed was for compound fracture suffered as his leg got locked between a boulder and railway track while crossing the railway track at the Katwa Junction. The consumer court did not have jurisdiction as the accident that took-place had no connection with the services provided by railways and the injury suffered could not be corelated with services provided by the railways. In this case, the injury sustained by the Complainant was due to falling of a moving train as a result of being pushed out.
(g) The State Commission wrongly accepted the judgement of NCDRC in Rakesh Patralekh vs. UOI & Ors wherein NCDRC failed to consider the provisions of Section 128 of the Railways Act, 1989. Moreover, the facts of the said case were distinct and different from the facts of the present case wherein there are clear and categorical allegations of deficiency in failing to ensure that no unauthorized persons entered the reserved coach in which he was travelling and keeping the door of the coach locked and secure while the train was moving.
(h) The State Commission wrongly relied on Rathi Tripathi & Ors. vs. UOI & Anr', which ignored several NCDRC judgments.
(i) A 5 Member Bench of NCDRC in UOI & Ors vs. Nathmal Hansaria & Anr decided on 24.01.1997 has held that the falling of a passenger while passing through the inter-connecting passage between two coaches without grills and other safety devices in the passage, resulting in her death could not be described as a railway accident and awarded compensation for the death of the passenger, thus holding that claim under the Act was maintainable against the railways.
(j) The State Commission failed to take note of the judgment of NCDRC in Nirmal Devi Chopra vs. UOI & Ors, decided on 16.09.2013 held as follows:-
"We have perused the above provisions of law and the above said authority. We are of the considered 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 by the Railways. Consequently, the arguments advanced by the counsel for the OP, have to be eschewed out of consideration."
(k) The State Commission failed to consider the judgment of NCDRC in Northern Railway vs. Sachin Mittal IV (2017) CPJ 439 (NC) (decided on 15,02.2017) holding that:
"5. In so far as the question as to whether there was negligence on the part of its servants is concerned, the mere fact that it has come on record that there were unauthorized persons in the reserved coach, who were not asked to de-board, per se amounts to an act of negligence on the part of the ticket collector, a Railway employee. In that view of the matter, the finding recorded by the State Commission to the effect that there was deficiency in service on the part of the Railways in permitting the unauthorized persons to travel in a reserved compartment, having not been specifically challenged and the fact that the total amount involved in the case is a paltry sum of Rs.25,000/-, we do not find any jurisdictional error in the impugned order or a fit case for exercise of our Revisional jurisdiction."
(l) The State Commission failed to take note of the judgment of NCDRC in Western Railway vs. Vinod Sharma 2017 STPL 2359 NCDRC (decided on 18.01.2017) and UOI & Anr Vs Savitaben Sumanbhai Patel & Ors. - III (2011) CPJ 34 (NC).
"6. We have heard learned Counsel and have gone through the evidence on record. Petitioners have stated that the orders of the Fora below needs to be set aside and the present revision petition is not maintainable on grounds of jurisdiction since it is clear that Section 28 of the Railway Claims Tribunal Act, 1987 will have overriding effect vis-a-vis Section 3 of the Consumer Protection Act, 1986. We note that the issue of jurisdiction has been comprehensively dealt with in a number of rulings by this Commission including in the case of Vinaya Vilas Sawant (Smt.) v. Union of India, (supra) decided on 29.11.2007 and Gulshan Kumar Mendiratta & Ors, v. Union of India & Anr. I (2011) CPJ 268 (NC)=MANU/CF/0198/2010 decided on 3.2.2010. In this connection, it would be relevant to quote the relevant part of the judgment of the then Hon'ble President (M.B. Shah) of this Commission in Vinaya Vilas Sawant (supra), regarding jurisdiction wherein also a passenger was seriously injured while passing over the railway over-bridge:
"12...... 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.
13. 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 82A 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 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 enquiring into or determining, any claims by the Claims Tribunal under this Act.
14. 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.
15. 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 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 22 XL 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.
16. 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.
17. Consumer Fora can exercise jurisdiction under the Act in cases when there is no specific bar. In Kishore Lal v. Chairman, Employees' State Insurance Corporation, 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.
7. It is thus clear from the above that Section 3 of the Consumer Protection Act,1986 provides additional remedy to the consumer and as such the Consumer Fora are competent to entertain claims covered and filed under the relevant section of the Railways Act, 1989/Railway Claims Tribunal Act, 1987. In the instant case, the points of law are similar to those in Vinaya Vilas Sawant (supra). Following the above judgment of this Commission as well as a host of other judgments with similar conclusions, we agree with the Fora below that the present case is not barred by jurisdiction."
(m). The impugned order is arbitrary and was passed without application of mind.
7. The Respondents/Opposite Parties have not filed any objections/Reply to the present Appeal.
8. In his arguments, the learned Counsel for the Appellant reiterated the issues/grounds raised in the Appeal and relied on the following judgments:
(a) General Manager, South Central Railway and Anr Vs P. Padmaja Priya Darshini - 2019 SCC OnLine NCDRC 1552.
(b) Northern Railway vs. Neetu Gupta & Anr decided on 14.05.2018.
(c) Station Master, Indian Railway, & Anr. Vs Sunil Kumar-2018 SCC OnLine NCDRC 440.
(d) Northern Railway Vs. Sachin Mittal IV (2017) CPJ 439 (NC) decided on 15.02.2017.
(e) Western Railway Vs. Vinod Sharma 2017 STPL 2359 NCDRC (decided on 18.01.2017).
(f) UOI & Ors. through Secretary, Rail Mantralaya, Vs Syed Mabuddin Rizvi - 2016 SCC OnLine 2196.
(g) Smt. Nirmal Devi Chopra Vs. UOI & Ors decided on 16.09.2013.
(h) UOI & Anr. Vs Savitaben Sumanbhai Patel & Ors., III (2011) CPJ 34 (NC).
(i) UOI & Ors Vs. Nathmal Hansaria & Anr. decided by a full bench of this Hon'ble Commission on 24.01.1997.
9. The learned counsel for the Respondents argued in support of the impugned Order of the learned State Commission that the Consumer Fora has no jurisdiction to entertain the present case. He has relied upon the following judgments:
(a) The Chairman, Thiruvalluvar Transport Corporation Vs The Consumer Protection Council, I (1995) CPJ 3 (SC).
(b) UOI & Anr. Vs M. Adaikalam, II (1993) CPJ 145 (NC).
(c)GM,Telecom Vs M Krishnan & Anr III(2009) CPJ 71 (SC).
(d)Chief Commercial Manager (Claims) Vs Sanjiv Sharma, IV (2015) CPJ 655 (NC).
(f)Yogesh Kohli Vs Improvement Trust Gurdaspur & Anr., IV (2015) CPJ 657 (NC).
(e)UOI Vs Ashok Shankar Sarkale & Ors I(2007)CPJ160 (DB).
(f) BT Shivaprasad Vs Vyalikaval House Building Co-op Society Ltd., III (2013) CPJ 531 (NC).
10. We have examined the pleadings placed on record and the associated documents and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
11. The main issues involved in deciding the present matter are, whether the complaint is maintainable under the Consumer Protection Act, 1986 and whether there is any deficiency in service on the part of the Respondents of the alleged incident.
12. As regards to the first issue whether the said complaint is maintainable under the Consumer Protection Act, 1986, the Appellant/ Complainant argued that railway officials failed in their duty, leading to an 'untoward incident' to him, and sought compensation for the losses suffered. On the other hand, the OPs contended that proper procedures safety measures were followed, and that the complaint is not liable to be adjudicated by the Consumer Forum and the same is barred under Sections 13,14,15 and 28 of the Railway Claims Tribunal Act, 1987. The Appellant has also cited judgments to emphasize that consumer fora can exercise jurisdiction alongside the provisions of the Railway Acts. On the other hand, the Respondents asserted absence of any deficiency in service provided to the Appellant as well as absence of jurisdiction of consumer fora to adjudicate the matter.
13. The Appellant contended that the matter in question relates to 'untoward incident' and Consumer fora have jurisdiction to hear disputes between railway consumers and railway authorities in respect of "deficiency in service". Whereas the railway claims tribunal has jurisdiction to hear the claims made against the railways by railway customers/users. RCT Act has been enacted by the Parliament after the enactment of the Consumer Protection Act, clearly indicating thereby that the legislature intended to give special jurisdiction to RCT hear the railway disputes. Section 15 of the RCT expressly bars the jurisdiction of civil courts and other courts or authorities.
14. As regards scope of consumer claims in respect of rail accidents, in Chairman, Thiruvalluvar Transport Corporation Vs Consumer Protection Council, AIR 1995 SC 1384, [1995], wherein 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 its driver. The Hon'ble Supreme Court has held that the accident that occurred had nothing to do with the services provided to the deceased and that the complaint 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 fatal injury was the direct result of the accident; So, consumer forums are not having the jurisdiction to hear such claims. Further, in General Manager, Eastern Railway, Kolkata & Ors Vs Shri Apurba Konar (Supra) wherein a person who decided to cross railway track to reach platform fell down and sustained leg injuries. The District Forum admitted the petition and, held that railway is liable to pay compensation to the injured person. However, Hon'ble Kolkata High Court held that the district consumer forum did not have the jurisdiction to entitle such claims. There is no deficiency in service involved in this case and, RCT is having the special jurisdiction to hear railway accident claims.
15. Under Section 124-A of the Railways Act, 1989, a passenger who suffered injury or a dependent of a passenger who died because of an 'untoward incident' can get the compensation. "Untoward Incident" has been defied under Section 123(c) of the Railways Act, 1989, which reads as under: -
"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."
.
16. The Respondent cited UOI & Anr. Vs M. Adaikalam, II (1993) CPJ 145 (NC) wherein it was held that the Consumer fora have no jurisdiction to entertain complaints on account of deficiency in service arising from loss, destruction, damage, deterioration or non-delivery of the goods etc. entrusted to Railways. This jurisdiction is exclusively with the Railway Claims Tribunal under Railway Claims Tribunal Act, 1987. The learned counsel also cited a decision of the Bombay High Court in the case o f UOI Vs Ashok Shankar Sarkale & Ors. I (2007) CPJ 160.
17. The RCT Act expressly declares that, in case of any loss or destruction of goods by the railway as the "carrier" then, that claims must be made before the RCT only. In Union of India and another Vs B.M. Electric Press and another, MANU/UP/0710/1999 the Allahabad High Court held that, as per Section 15 r/w Section 13 of RCT Act, after the establishment of RCT, no Court or other authority had or is entitled to exercise any Jurisdiction, power or authority in relation to the claim for compensation for loss, destruction. Damage, deterioration, non-delivery of animals or goods entrusted to a railway administration for carriage by railway. In this case, a district consumer forum had awarded compensation to a consumer for the loss of his goods. Moreover, In Union of India v. M. Adair Kalam (Supra), the NCDRC held that it had no jurisdiction to entertain complaints of loss, destruction, damage or non-delivery of goods by railway on account of deficiency in service since such claims would fall under the railway Claims Act.
18. To sum up, so as to attract the jurisdiction of this Commission and to assert that it is not a case of 'untoward incident' but the falling was attributable to some deficiency in service on the part of OPs, the Complainant ought to bring forth a 'prima facie' case to that extent. However, no evidence whatsoever was led in support of the said claim. It is the version of the Complainant himself that on 04.05.2007, he traveled from Kolkata to New Delhi by Howrah-Delhi Rajdhani Express in AC-II class. On 05.05.2007, when the train approached Shivaji Bridge Railway Station, New Delhi, he went to use the washroom near entrance of the Coach. When he stepped out, he saw an unruly crowd of about 10-12 people outside the toilet who did not appear to be passengers of the same coach. He tried to make way for others waiting to use the washroom and return to his seat. Suddenly, he was pushed by the crowd towards the main door of the coach which was negligently left open ajar by the Respondent's staff. He sustained injuries to his chest, pelvis, left arm and left foot. As the left foot was severely crushed with loss of skin and tissue, the doctors were constrained amputate his left leg from below the knee. He, however, has not brought on record any evidence whatsoever of the circumstances and specific particulars of the actual incident which he stated to have happened in a moving train, while it was approaching Shivaji Bridge Railway Station, New Delhi, details or charter of duties of officials working with the OPs so as to examine whose duty it was to keep the doors of the coach closed at the relevant point of time of incident etc., and bring out any 'deficiency in service' that can be inferred due to non-performance of such duties. He has also not clarified as to how the presence of 10-12 people in the corridor made it so difficult for him to return to his seat from the washroom and how he got pushed towards main door of the coach and got thrown out of the moving train without any resistance. That is, even admitting hypothetically that there were around 10-12 persons in the area outside the washroom and near to either side doors of that compartment making that area extremely congested, it is clear that these persons were present on either side of his passage from washroom to the inner-door of the air-conditioned cabin. Further, for him to be thrown out of the train, the door ought to be fully/wide open and not ajar, particularly when the narrow space is crowded as stated. Pertinently further, to be so thrown out, the Complainant ought to have been the last person immediately next to the 'open door' to be the 'only person' thrown out of the moving train. However, 'while returning to his seat' or 'giving way to other passengers to use the toilet', there could not have been such an occasion for him to be present in such position. Thus, the contention of the Complainant that 'he was pushed by the crowd when he tried to move out of the way so as to make way for other passengers waiting to use the washroom and to return to his seat', do not elicit confidence with due regard to the stated narration of sequence of events. In such circumstances and in the absence of any corroboration and/or additional evidence as cited above, it cannot said that there is any evidence of negligence, default, or wrongful act on the part of the OPs constituting deficiency in service. Accordingly, Nathmal Hansaria's case (Supra) is not applicable in the present case. Thus, in our considered opinion, the case is required to be considered as a case of 'untoward incident' as defined in Section 123(c)(2) of the Railways Act, 1989.
19. In addition to the above, the Appellant has also claimed that the case is within the scope of Section 123(c) of the Railways Act, 1989 and thus he has right to claim compensation for accidental fall. In this regard, in addition to the above deliberations, since he sustained grievous injuries and contended that he was pushed and thrown out of the train by some unknown offenders, resulting in an untoward incident as defined under the Railways Act, 1989, the Consumer Fora lacks jurisdiction to hear such claims. This aligns with the principles outlined in UOI Vs. Ashok Shankar Sarkale and Ors. (Supra). As per Section 124-A of the Railways Act, 1989, compensation is provided to passengers in cases of injuries/death due to 'untoward incidents.' Therefore, the claims arising from such untoward incidents are not within the scope for adjudication under Consumer Protection Law. Consequently, the second issue pertaining to claim with respect to the alleged untoward incident does not fall under the jurisdiction of the Consumer Protection Act.
20. In view of the foregoing discussions, we do not find any infirmity or illegality in the impugned order dated 02.04.2019 passed by the learned State Commission. Consequently, the present Appeal is dismissed. However, the Appellant is at liberty to approach appropriate forum to seek redressal of his grievances as per law.
21. There shall be no orders as to costs.
22. All pending application, if any, stand disposed of.
...................................... SUBHASH CHANDRA PRESIDING MEMBER ................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) MEMBER