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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 602 OF 2013 (From the Order dated 09.11.2012 in Appeal No. 1460/2011 of U.P. State Consumer Disputes Redressal Commission, Lucknow)With IA/1062/2013 (Stay) Union of India Through its General Manager North Eastern Railway Gorakhpur
Petitioner VersusDr. (Smt.) Shobha Agarwal W/o Dr. M.C. Agarwal Head of the Department T.B. & Chest B.R.D. Medical College Gorakhpur
Respondent BEFORE: HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. Rajeshwar Singh, Advocate For the Respondent : Mr. Ajit Sharam, Advocate Pronounced on : 22 nd July, 2013 O R D E R
PER SURESH CHANDA, MEMBER
This revision petition is directed against the order dated 9.11.2012 passed by the U.P.
State Consumer Disputes Redressal Commission, Lucknow in appeal No.1460 of 2011 by which
the State Commission upheld the order dated 14.7.2011 passed by the District Forum, Gorakhpur
in complaint case No.612 of 1997 and dismissed the appeal filed by the petitioner. The petitioner
was the OP before the District Forum and the respondent was the original complainant.
2. The factual matrix of this case are that on 10.10.1996 the complainant/respondent along
with her daughter was travelling in a AC second class sleeper with reserved berth Nos.35 & 36
from Gorakhpur to Beena by 1016 UP Kushinagar Express. It is alleged that there was lot of
disarrangement in the reserved AC coach and some suspected person was seen snooping here
and there about which a complaint was made to the ticket checker but no action was taken by
him. The same suspected person was again seen in reserved coach at about 2’O clock in the
night. When the complainant woke up at 7’O clock in the morning, she found that her grey
colour suitcase which had been tied under the berth with the help of chain and lock, was missing
from there. As per the allegation in the complaint, the said suitcase had been stolen by cutting the
chain and lock. Information about the said incident was given to the ticket checker who after
some initial reluctance received the same after being forced to do so by certain co-passengers but
the ticket checker refused to receive the list of the articles. The complainant brought the incident
to the notice of the Railway Department and Railway Minister by writing letters to the
authorities and it appears that after about one year, the railways lodged an FIR in regard to this
incident sometime in the year 1987. Alleging negligence on the part of the OP, the complainant
lodged a consumer complaint before the District Forum praying for compensation of Rs.1.5
lakhs along with interest @ 12% w.e.f. 10.10.1996, i.e., the date of loss of the valuables along
with Rs.30,000/- by way of compensation on account of mental agony. On notice, the complaint
was resisted by the OP and in the written statement filed by the OP, it denied any negligence on
its part and also submitted that railway administration is not liable for the goods which were not
booked with them. It also raised the question of jurisdiction of the District Forum in the matter.
3. On hearing the parties and appreciating the evidence placed before it, the District Forum
allowed the complaint vide its order dated 14.7.2011 in terms of the following directions:-
“The present of the complainant is accepted against the opposite party. It has been directed to the respondent to pay Rs.1,50,000/- along with interest to the complainant from the date of filing of the application / complaint from the date of filing of the application/complaint till its realization. Besides this, the opposite party to pay Rs.50,000/- towards the compensation account of mental and physical agony and Rs.1000/- towards the costs of the litigation and the said amount is to be given in the shape of demand draft before this forum which could be given to the complainant within one month from the date of passing of the said order. In case the opposite party failed to pay the same within stipulated period of one month, then the same will be recovered from the opposite party as per the law.”
4. Aggrieved by the aforesaid order of the District Forum, the petitioner carried the same
before the State Commission by filing an appeal against it but the same was dismissed by the
State Commission vide its impugned order which is now under challenge through the present
revision petition.
5. We have heard learned counsel Mr. Rajeshwar Singh, Advocate for the petitioner and
learned Mr. Ajit Sharma, Advocate for the respondent. Learned counsel for the petitioner has
submitted that there was no negligence on the part of the railway administration and unless the
goods in question are booked with the railways, the railway administration under the provisions
of Railway Act are not liable to pay the compensation. He further submitted that the luggage in
question being carried on by the complainant along with her daughter, it was under her custody
and it was for her to take care of that. The onus of proof regarding negligence on the part of the
railway staff lies on the complainant which she has failed to discharge.
6. Learned counsel has also relied on the provisions of sections 97 and 100 of the Railways
Act, 1989 under which the railways cannot be held liable for compensation in this case and the
State Commission erred in wrongly appreciating these provisions. Another contention raised by
learned counsel was that section 15 of the Railway Claims Tribunal Act, 1987 bars the
jurisdiction of the consumer Fora to deal with this case. In view of these aspects, learned
counsel submitted that orders of the Fora below cannot be sustained in the eye of law and are
liable to be set aside. On the other hand, learned counsel for the respondent submitted that the
impugned order is a well-reasoned order passed in accordance with the provisions of law and the
same deserved to be maintained and the revision petition be dismissed.
7. We have given our anxious thought to the submissions made by the parties. We may note
that the broad facts of this case not being under dispute, the two Fora below have returned their
concurrent finding in respect of the allegation of negligence on the part of the petitioner based on
the facts placed before them. The order of the State Commission is in line with the judgements of
this Commission in similar cases including those of Union of India & Ors. Vs. J.S. Kunwar [1
2010 CPJ 90 (NC)] and Union of India & Ors. Vs. Sanjiv Dilsukhraj Dave & Anr. [2003 CTJ
196 (CP) (NCDRC) and Mrs. Kanthimathi & Anr. Vs. Govt. of India where the liability of the
railways in such cases has already been examined established in such cases in the light of the
provisions of sections 97 and 100 of the Railways Act. We do not wish to reiterate here the
details of these cases except to refer to the observations of this Commission in the case of Sanjiv
Dilsukhraj Dave & Anr. (supra) and the same are reproduced thus:-
“A major responsibility cast on the TTE in addition to examining the
tickets is that of ensuring that no intruders enter the reserved
compartments…………..This is certainly a gross dereliction of duty which
resulted in deficiency in service to the Respondents.
The price difference between the unreserved ticket and a reserved ticket is
quite high and the traveling public who buy a reserved ticket would
expect that they can enjoy the train journey with a certain minimum
amount of security and safety.
………. …… One has to presume that passenger would take reasonable
care of his luggage. But, he cannot be expected to take measures against
intruders getting easily into reserved compartments and running away
with goods, when the railway administration is charged with the
responsibility to prevent such unauthorized entry. We have entered the
21st century and we cannot carry on our daily life in the same age old
fashion with bearing brunt of indifferent service provided by public
authorities like Railways. People expect in the 21st century a modicum of
efficient and reliable service, which provides at least safety of person and
property while traveling in reserved compartments”.
8. Undisputedly, the complainant and her daughter were travelling in a reserved coach and
it was the duty of the TTE to ensure that no intruders entered the reserved compartment. Since
apparently there was a failure on the part of the TTE to prevent entry of unauthorized person in
the coach during the night, the Fora below were right in holding the petitioner liable for
deficiency in service to the respondent in this regard. So far as the applicability of section 15 of
the Railway Claims Tribunal Act, 1987 is concerned, we cannot agree with the contention of
learned counsel because this section bars jurisdiction of the other courts only “in relation to the
matters referred to in sub-sections (1) and (1A) of section 13”. Section 13 is reproduced thus:-
“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
Railway 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, damages, deterioration or non-delivery
of animals or good 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.
[(1-A) The Claims Tribunal shall also exercise, on and from the date of
commencement of the provisions of Sec.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 Sec. 124-A
of the said Act or the Rules made thereunder.]
(2) The provision of the [Railways Act, 1989] and the rules made thereunder
shall, so far as may be, be applicable for inquiring into or determining any
claims by the Claims Tribunal under this Act.”
9. Plain reading of section 13 indicates that the case of the respondent does not fall under
any of the categories mentioned in the section. In view of this, the jurisdiction of the Consumer
Fora cannot be barred by virtue of the provisions of section 15.
10. In view of the foregoing discussion, we do not find any infirmity or jurisdictional error
with the concurrent finding of the Fora below which could justify our intervention under section
21(b) of the Consumer Protection Act, 1986. The scope of powers of this Commission while
exercising its revisional jurisdiction under section 21(b) of the Consumer Protection Act, 1986
being very limited, we do not find any justification to interfere with the impugned order. We,
therefore, dismiss the revision petition in limine with no order as to costs.
……………Sd/-……..………..(AJIT BHARIHOKE, J.)PRESIDING MEMBER ……………Sd/-….……………(SURESH CHANDRA)MEMBERSS/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
Revision Petition no. 628 of 2013(Against the order dated 15.10.2012 in Appeal nos. 2166 of 2010 and 72 of 2011 of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal) Union of India Through the General Manager East Central Railway, Patna Station Manager Muzaffarpur Railway Station Bihar North Central Railway Through Station Manager Railway Station Gwalior
Petitioner(s) Vs Smt Kavita Madan Wife of Shri Ranjan Madan H – 9, Govind Puri Post Office R K Puram Gwalior
Respondent Before: HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBERHON’BLE MRS REKHA GUPTA MEMBER For the Petitioner (s) Ms Rekha Aggarwal, Advocate Pronounced on 16 th August 2013 ORDER REKHA GUPTA
Revision petition has been filed against the order dated 15th October 2012 passed by the Madhya Pradesh State Consumer Disputes RedressalCommission, Bhopal in appeal nos. 72 of 2011 and 2166 of 2010 filed by the respondent whereby both the appeals were dismissed.
The brief facts of the case as given by the respondent/complainant are that the respondent has gone to Muzaffarnagar along with her two daughtersPrachi and Bhagi and father-in-law Kishan Lal Madan to attend a wedding ceremony. The respondent purchased tickets on 06.02.2008 from petitioner no. 3 for the return journey from Muzaffarpur on 18.02.2008 in train no. 1123. She got reserved tickets nos. 49, 50, 51 and 52 for herself and her family.
On 18.02.2008 respondent went to Muzaffarpur Railway Station along with her two daughters and father-in-law for the return journey by train no. 1123 in coach no. S 3 on reserved seats no. 49 to 52 and the journey was to start at 05.00 p m.
When the train started from Muzaffarpur and reached Sonepur Railway Station at about 02.00 a m most of the passengers were asleep. At this time 5-6 boys boarded the train and after sometime they broke the chains which were attached to the suit cases and they collected the suit cases at the gate of the train. At this time, the respondent woke up and raised a cry and other passengers also woke up. At this the boys threw the suit cases from the running train and when the train slowed down they jumped out of the train. Her father-in-law gave a complaint of this incident to the guard at Chapra Railway Station. The guard told him to inform the TT. But there was no TT available in the train. Her father-in-law tried to lodge the complaint at Chapra Junction, Lucknow junction and Bara Banki station but as the stoppage time was less and they had children with them, they could not lodge the complaint.
Out of the eight suit cases stolen by the boys, the respondent had three suit cases of VIP make in blue colour. One was of 36”, the second was medium and the third of small size. In the big suit cases there were five suits, six sarees and woolens as well as gold jewellary which included 1 gold necklace, 2 rings, 2 tops, 2 ear rings and four bangles weighing about 10 tolas. The second
suit case contained 5 sets each of cloths of the 2 children, 4 sweaters. The third suit case contained 4 trousers, 4 shirts, 1 coat other clothes and the passbook of saving account no. 10504757769 of State Bank of India, Murrar. The total value of the goods was about Rs. 1.00 lakh.
When the train reached Gwalior on 20.02.2008, the respondent’s father-in-law gave a written complaint to the police station GRP at Gwalior. When no action was taken on this complaint, then her father-in-law wrote letters dated 02.04.2008, 10/11.02.2009 by registered post to Mazaffarpur, Chapra, SonepurStation and on 11.11.2009 but the petitioners did not give any suitable reply. On 30.04.2008, the Commissioner of Police, Railways Muzaffarpur informed that due to lack of any evidence the police had filed a final closure report on the complaint.
The petitioner/ opposite party in their written statement have denied the entire complaint stating that the alleged incident has been concocted to make a legal issue and gain unlawful advantage. It is denied that any thief had entered the Barauni Gwalior mail no. 1123 on 08.02.2008. No information of any such incident has been received from any other passenger. It is also denied that there was no TT or guard in the train. The TT was present throughout the journey and checking the tickets of the passengers from time to time. It is also denied that due to less stoppage time of the train, the respondent could not make report of the alleged incident as the complaint book available in the coach itself in which any passenger can note down his complaint.
The District Consumer Disputes Redressal Forum, Gwalior (MP) vide order dated 17.08.2010, while allowing the complaint ordered that “the opposite party is directed to pay Rs.50,000/- within 30 days to the complainant failing which they will have to pay interest @ 9% per annum. The opposite party will also pay Rs.1,000/- towards cost of the expenses incurred. The complaint is closed”.
Aggrieved by the order of the District Forum, two appeals were filed before the State Commission. Appeal no. 2166 of 2010 was filed by respondent/complainant for enhancement and the second appeal no. 72 of 2011 was filed by the petitioner for setting aside the order of the District Forum. The State Commission “dismissed both the appeals with no order as to costs”.
Hence, the present revision petition.
Along with the revision petition, the petitioner has filed an application for condonation of delay of 29 days. As per the application, the certified copy of the impugned order was delivered by the State Commission on 22.10.2012. Thereafter it took some time for the petitioners to engage a lawyer in Delhi to file the revision petition. Moreover all the documents are in vernacular and it took considerable time to translate the same in English. All this exercise has taken some time and there was some unavoidable delay beyond their control.
We have heard the learned counsel for the petitioner and have gone through the records of the case. No cogent reasons have been given either by the counsel for the petitioner or in the application for condonation of delay to explain and justify the day to day delay of 29 days.
It is well settled that “sufficient cause” for condoning the delay in each case is a question of fact:
In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in
the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;
“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”
In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”
Recently, Hon’ble Supreme Court in Post Master General and others vs. Living Media
India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
“After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
“It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to
courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”
The Court further observed;
“It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
In the light of the above discussion, the appeals fail and are dismissed on the
ground of delay. No order as to costs”.
Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.
Even, after getting two adverse findings, petitioners have chosen not to settle the claim of the respondent but have dragged him to the highest Fora under the Act. It is not that every order passed by Fora below is to be challenged by a litigant even when the same are based on sound reasoning. It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so. Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.
The Apex Court, in the case State Bank of India vs B S Agricultural Industries II (2009) SLT – 793 = (2009) 5 SCC 121 have held as under:
“As a matter of law, the Consumer Forum must deal with the complainant on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet the Consumer Forum decided the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”
The present case is fully covered under the case laws cited above Supra.
The petitioners have failed to produce any detailed reasons to explain the delay of 29 days.
Accordingly, no sufficient grounds are made out for condonation of delay of 29 days in filing the present revision petition. The application for condonationof delay under these circumstances is not maintainable and the present revision petition being barred by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees ten thousand only).
Petitioner is directed to pay a sum of Rs.5,000/- by way of demand draft directly in the name of respondent and the balance amount of Rs.5,000/- be deposit by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission within four weeks from today. In case the petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till its realisation.
List for compliance on 20th September 2013.
Sd/- [ V B Gupta, J.]
Sd/- [Rekha Gupta]Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIORIGINAL PETITION NO. 72 OF 2001
Smt. Nirmal Devi Chopra W/o Late Sh.R.C.Chopra B-28, Lajpat Nagar-III New Delhi
… Complainant
Versus 1. Union of India Through Secretary, Railway Board (Rail Mantralay) Raisina Road, New Delhi
2. General Manager, Northern Railway Baroda House, New Delhi
3. Divisional Railway Manager Northern Railway, Delhi Division State Entry Road, New Delhi
4. Divisional Railway Manager Northern Railway, Muradabad, U.P.
5. Divisional Railway Manager Northern Railway, Lucknow Hazarat Ganj, Lucknow, U.P.
… Opposite Parties
BEFORE:
HON’BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. M.L.Sharma, Advocate
For the Opp, Parties : Mr. Apurb Lal & Mr.Niraj Anand, Advocates
PRONOUNCED ON_16.09.2013
O R D E RJUSTICE J.M. MALIK
1. Smt. Nirmal Devi Chopra, the complainant has claimed a sum of Rs.35.00 lakhs for the
deprivation of the income that R.C.Chopra, her deceased husband, would have earned during
his balance life span, Rs.10,00,000/- for widowhood and lack of consortium suffered by the
complainant, due to being widowed prematurely and Rs. 5,00,000/- as compensation for the
death and bereavement suffered by the four daughters and their families.
2. Sh.R.C.Chopra, died while he was travelling in Lucknow Mail, AC-III Tier, in the night
falling between 21st -22nd December, 1998, due to deficiency in the service and for non-
compliance of the rules on the part of the administration and employees of the Northern
Railways, the Doctors and Staff of SuchetaKriplani Hospital, New Delhi. He
was allotted berth No.15 by the Train Conductor/Coach TTE, Lucknow. Due to fog, the train
was running late. On 23.12.1998, at about 7.30AM, it transpired that an unknown passenger
(Late Sh.R.C.Chopra), was admitted in an unconscious condition in the above said hospital at
11.25 hrs by Government Railway Police, New Delhi Station on 22.12.1998. His son-in-
law, identified him. Sh.R.C.Chopra, passed away, on 24.12.1998 at about
10.50 hrs, without regaining consciousness. The cause of his death was shown as (i) unknown
poisoning (ii) pontine Haemorage. The patient was brought by the police from the Railway
Station. The autopsy report mentions the cause of death due to Nitrazepam and acute adverse
effect thereof happening subsequently. Subsequently, it also came to light
that R.C.Chopra was looted off all his cash and Demand-drafts. His briefcase, alongwith suit-
case, was delivered in an open condition to the family by Government Railway Police, New
Delhi. The brief-case contained few documents only.
3. The main grouse of the complainant is that no medical aid was given to the patient, on the
way. The train halted at Ghaziabad Station for over one hour, for this purpose and no steps
were taken. Memo was given but Railway DMO or any other Doctor did not attend the
patient. Improper and inadequate medical aid was given at the Sucheta Kriplani Hospital, New
Delhi. It also transpired that one, Mr. H.M.Behal, along-with his wife and son was to travel
fromLucknow to Delhi. He held reserved accommodation for three persons. However, due to
thick and
foggy weather, he abandoned his plan to travel by this train and got refund for his
tickets. Their tickets were treated as ‘non-issued’ by the Reservation Office at Lucknow and
were re-sold to some unauthorized persons, perhaps those persons who were travelling, robbed
off R.C.Chopra of his cash and demand-drafts. Those three unauthorized persons travelled in the
train, while working in cahoots with the reservation staff and the TTE. The said miscreants
gave tea to the deceased, after making friendship with him. The tea was heavily laced
with Nitrazepam, which induced deep sleep to the victim. No medical assistance was given to
the patient. After their arrival, in New Delhi, the TTE and the Coach Attendant left the patient
in lurch. They did not swing into action. No ambulance or doctors were arranged by the
Railway authorities at the New Delhi Railway Station. The empty rake of the train
was shunted into the yard and washing lines from where Sh.Chopra was carried in a luggage
trolley to the Sucheta Kriplani Hospital by the GRP, New Delhi at 11.30
hrs. The Railway authorities did not make any attempt to identify those three
miscreants. Their identity was never established.
4. The deceased was an affluent and influential person and his relatives would have taken
him to a superior medical hospital, if they were intimated in
time. Immediate medical help would have saved the life of the deceased. It is alleged that the
Railway authorities washed off their hands from the medical emergency. The deceased was aged
about 65 years and was physically very active and mentally alert, who,
could have lived upto age of 85 years. His grand-father lived upto the age of 95
years. The deceased was having high income. His declared income was
Rs.6,66,790/-, he was paying income tax of Rs.1,37,069/- for the year 1998-
99. The deceased had declared an income of Rs.6,00,000/- in the year 1998, which was, in
addition to his declared income in the regular Income Tax Returns.
DEFENCE :
5. The Opposite Parties have enumerated the following defences in their written
statement. The Railway Claims Tribunal Act, through its Sections 13,15 and 28, strikes a snap
over the jurisdiction of other Tribunals. The Railway Claims Tribunal has got the executive
jurisdiction to try this compensation case. In this case, best efforts were made to call
the Railway Doctors at Ghaziabad Railway Station, but could not arrange due to short
stoppage. When the train arrived at New Delhi Railway Station,
the message was conveyed to the police and the deceased was immediately taken to the
hospital. As such, there is no deficiency on the part of the Railways. A message was sent to the
New Delhi Railway Station that a passenger was lying in a coach in an unconscious
condition. The deceased was admitted in ICU. It is
explained that the coach of Lucknow Mail, wherein the deceased was travelling was
locked from inside, as soon as the train left from Lucknow Station and remained under the
watch and duty of Conductor and Attendant, upto New
Delhi. Nounauthorized person entered the compartment. The
schedule stoppage of the train at Ghaziabad Railway Station is for two minutes only
and during the stoppage also, necessary arrangements were made,
for providing medical facility at Ghaziabad Railway Station
and New Railway Station. Under the said circumstances, the possibility cannot be ruled
out that the deceased might have consumed the Nitrazepam himself. It is
stated that from Ghaziabad, the train arrives at New Delhi, after about 40 minutes.
6. Both the parties have led evidence by way of filing their affidavit. The complainant has
also filed affidavit of Shri H.M.Behal, which carries infinite value.
7. The principal argument advanced by the counsel for the OPs was that the
consumer fora have no jurisdiction to try this case. He submitted that thisCommission can
not arrogate to itself, the powers which do not vest in it. He has invited our attention
towards Sections 13 & 15 of the Railway Claims Tribunal Act, 1987, which are reproduced
hereunder :-
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 Railway 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, damages, deterioration or non-delivery of animals or good 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.
[(1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Sec.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 Sec. 124-A of the said Act or the Rules made thereunder.]
(2) The provision of the [Railways Act, 1989] and the rules made thereunder shall, so far as may be, be applicable for inquiring into or determining any claims by the Claims Tribunal under this Act.
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 1-A] of Sec.13.
8. He has also cited one authority reported in Chairman, Thiruvalluvar Transport
Corporation Vs. Consumer Protection Council, AIR 1995 SC 1384. The relevant para runs
as follows :-
“6. …………The complaint in the instant case cannot be said to be in relation to any service 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 but the fatal injury was the direct result of the accident, on account of which, he was thrown out of his seat and dashed against the iron handle of the seat in front of him. We, have, therefore, no manner of doubt that this case squarely fell within the ambit of section 165 of the 1988 Act and the Claims Tribunal constituted thereunder for the area in question had jurisdiction to entertain the same.
9. 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 counsel for
OP, have to be eschewed out of consideration.
10. Now, we turn to the facts of this case. The learned counsel for the
complainant invited our attention towards the affidavit
of Mr.Hari Mohan Behal. Mr.H.M. Behal was to travel in the said train. We have seen the
reservation chart for AC-III Tier, which has been placed on the
record. It clearly goes to show that R.C.Chopra was allotted seat No. 11,
and Mr.H.M.Behal, Mrs.Manju Behal and Rohit Behal were allotted seat Nos. 14, 15 and
16. Mr.H.M.Behal, i.e. Hari Mohan Behal has filed an affidavit which goes to show that he,
along with his wife Smt.Manju Behal and son, Mr.Rohit Behal, were to travel in this
train. They had confirmed tickets. It was further stated on oath that it was height of winter
season and the trains were notorious for late running due to thick foggy weather. He further
stated that he cancelled his programme at the last moment and asked his driver to return the
tickets and obtain the refund. He further stated that his driver returned the
tickets and obtained a refund of 50% of the fare paid by him, as it was a last minute
cancellation.
11. However, it is surprising to note that in the record of the Railways, it was argued that all of
them had travelled. Their seats were not kept vacant, somebody had travelled, on their
behalf. The learned counsel for OPs did not pick up a conflict with this contention. They
did not state that Mr.H.M.Behal and his close relative had cancelled their seats. They
have made a vain attempt to file frivolous defence in support of their case.
12. The learned counsel for the complainant argued that those three
passengers must be miscreants who, after putting the complainant in an unconscious stage,
robbed off his valuable belongings and went away. He contended that those
persons must have given poison to the passenger for which the OP is liable.
13. The first deficiency is apparent on record. Three passengers did not travel, but they were
shown to have travelled. From where, those three persons cropped up, dollops of mystery
surround this case. No explanation of Conductor, T.T.E. was called. The attempt was made to
whitewash the truth.
14. However, the other part of the story that the three miscreants came, gave a cup of
tea, laced with poison and robbed off the passenger, is not worthy of credence. The possibility
of the passenger committing suicide can not be ruled out. It is not this Commission’s duty to
write definitions on invisible blackboards with non-existent chalk. However, the
Conductor and the Assistant/Attendant, could not get knowledge about this incident, is the
second deficiency, on their part. Their bizarre conduct is unfathomable.
15. The third deficiency on the part of OP is discernible. Memo has been
placed on the record, which reads as follows :-
“DMO/GZB, NDLS
Through ASM, Mehrauli
Please attend a patient in AC-3 Tier Coach No.15535 on Berth No.13 as passenger is serious ill by 4229 UP, Dt.22.12.98. Coach position is 13 from Engine.
Sd/-
Shiv Singh
22/12
CC:
GZB
Received by
ASM, Inform to NDLS & CHC
At 8.15A.M”.
16. The counsel for the OPs vehemently argued that the
Railway administration was conscious about the serious condition of the
deceased. The saidMemo was sent from Mehrauli. Best efforts were made to call the
Doctors at the Railway Station, Ghaziabad, but could not be arranged due to short stoppage of
the train, i.e., for two minutes. Consequently, message was conveyed to the New Delhi
Railway Station & GRP. After arrival at New Delhi, the complainant was admitted in the well-
known hospital, i.e., Sucheta Kriplani Hospital by GRP staff.
He received the best treatment in ICU.
17. This argument is a strawman, intended to divert our intention from the main issues. It
came to light that a patient was lying sick, at about 7.25 AM/8.25AM. He could not get any
medical aid till 11.25AM. This is a case of negligence, inaction and passivity on the part of the
Railway authorities. Para3.35 of the Indian Railways Commercial Manual, Vol.I, enjoins
upon the Railways to secure medical assistance to the sick
passengers. Noexplanation is forthcoming, as to why did the train not halt at
Ghaziabad? Had the medical aid been given to the patient at Ghaziabad Station itself, it could
have saved the precious life of the deceased. It is well said that “A Stitch in
Time, Saves Nine”. What are the duties of Train Conductor/ Coach Attendant and the
TTE?. All of them were sleeping and did not do the needful. Where was the
Doctor? Negligence is rust of soul that corrodes through all her best resolves. The
Railway Department itself is trying to defend their own
employees. The names of concerned employees, did not find mention in the written
statement. As a matter of fact, those were the persons, liable for the death
of late Sh.R.C.Chopra. The compensation should have been recovered from them. It is
surprising to note that the Railway Department commits so many mistakes as well as the
mistakes of defending their wrong officers. These persons are also responsible for giving
the seats of Mr.H.M.Behal and his family members, illegally and unauthorisedly to the three
unknown persons, for earning some illegal amount, they have played havoc with the life of a
person. No Ambulance was called at the Ghaziabad Railway
Station. No Ambulance was called at the New Delhi Railway Station. The patient was carried
in a Railway Luggage Trolley, i.e. Thela. The
Railway staff was not sensitive and was discharging their duties in a ‘happy-go-lucky’
manner. Had it been a case of their near and dear, the things would have been
otherwise. Flushing off the stomach by the Doctors immediately, could have saved the life of
the deceased, irrespective of the fact, whether, it is a case of murder or it is a case of
suicide. The train should have halted at Ghaziabad, itself. The person should
have been removed in the Ambulance and be treated, immediately. The
Great Shakespeare says, “In persons, grafted in a serious trust, negligence is a crime”. In the
lump, the higher authorities are prone to turn a Nelson’s eye to indiscipline, in the
Department, rather than taking the bull, by horns. The case also stands proved under Section
123(c) andSection 124 A of the Railway Act.
18. We, therefore, allow the complaint, but the compensation demanded by the
complainant is on the excessive side. Keeping in view the facts and circumstances,
we grant total compensation in the sum of Rs.10,00,000/- amount be paid, within 90
days, otherwise, it will carry interest @ 9% p.a., till its realization.
19. We, further, direct the Divisional Railway Manager, Northern Railway, Muradabad,
U.P, to make an enquiry against the Doctor at Ghaziabad, Conductor, T.T.E. and
Assistant/Attendant, within a period of six months and file the report, with the Registrar of this
Commission on or before 1st April, 2014. Disobedience shall tantamount to contempt of court.
The original petition is disposed of, in the above terms.
.…………………………J.
(J. M. MALIK)
PRESIDING MEMBER
……………………………..
(DR.S.M. KANTIKAR)
MEMBER
dd/24
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1874 OF 2012 (Against the order dated 16.02.2012 in Appeal No. 1778/2005 of the State Consumer Disputes
Redressal Commission, Rajasthan, Jaipur)
1. Union of India Through General Manager, West, Central Railway Jabalpur, M.P.2. The Divisional Railway Manager West Central Railway Kota, Rajasthan3. The Station Superintendent, Railway Station, Hindoncity, District Karauli, Rajasthan4. The Chief Commercial Manager, West Central Railway Jabalpur, M.P.5. The Chief Claim Officer, West Central Railway Jabalpur, M.P.6. The Chief Claimant Officer, West Railway Churchgate Mumbai, Maharashtra
...........Petitioners
Versus
1. Yash Industries Near Industries Area, Water Tank, Hindoncity, Through Proprietor Rajesh Kumar, S/o Shri Babulal By Caste Mahajan R/o Mohan Nagar, Hindoncity District Karauli, Rajasthan2. Manij Kumar S/o Shri Babulal, By Caste Mahajan,R/o Mohan Nagar, Hindoncity District Karauli, Rajasthan
...........Respondents
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBERHON’BLE DR. S.M. KANTIKAR, MEMBER For the Petitioner : Mr. Shailesh Prakash Sharma, Advocate For the Respondent : Ex parte
Pronounced On 3 rd October , 2013 ORDER
PER DR. S.M. KANTIKAR1. The present Petition is filed under Section 21 of the Consumer Protection Act, 1986 against
the impugned judgment of State Consumer Disputes Redressal Commission, Circuit Bench, Rajasthan, Jaipur (in short, ‘State Commission’) in Appeal No. 1778/2005 where by the Appeal filed by the Appellant has been dismissed and the order of District Consumer Disputes Redressal Forum, Karauli (in short, ‘District Forum’) in CC No. 11/2004 has been upheld.
2. The brief facts of this case are:Total 19 cartons of plastic frames, used for slates, were booked by the complainant, under two separate builties from Paladhar station to be delivered at Hindon city station. But, complainant received only 17 cartons. The Station Master at Hindon issued a short certificate for deficit. On several enquires, the complainant did not get satisfactory reply from OP. Each carton was of 32 kg in weight, at the rate of Rs.111/- per kg, for two cartons amounting to Rs.7104/-. The Senior Divisional Manager, Western Railway, Kota had granted the claim for Rs.500/-. Hence, alleging deficiency in service by OP, the complainant filed a complaint
before District Forum for an award of Rs.1,49,000/- towards compensation, along with Rs.7104/-.
3. That the District Forum after hearing arguments of the parties, partly allowed the complaint and ordered that out of both builties, one carton not being given, measuring 32 kg material @ Rs.111/- per kg., Respondents would make payment of Rs.7104/- to the Complainant, along with 6% interest, from 29.04.2003. If any amount has been paid to the Complainant, earlier, the same is to be adjusted and Rs.200/- will be paid towards cost of litigation. The aforesaid amount to be paid within two months.
4. Aggrieved by the order of District Forum, the OP filed an appeal No.1778/2005, before the
State Commission. The State Commission dismissed the said appeal.
5. Against the order of State Commission, OP preferred this revision.
6. We have heard the counsel of both the parties. The learned Counsel for petitioner vehemently argued that Consumer Fora have no jurisdiction to entertain such claim. But, it could only have been decided by Railway Claims Tribunal. The Counsel for the Petitioner brought our attention to the provisions of Sections 13 and 15 of the Railway Claims Tribunal. The relevant provisions of Sections 13 and 15, referred above, are reproduced hereunder: “ 13. Jurisdiction, powers and authority of claims Tribunal – (1) The claims Tribunals 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 claim commissioner appointed under the provisions of the Railway 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 of non-delivery of animals or goods entrusted to a railway administration for carriage by railways;
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 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 railways” “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-section (1) of Section 13.”
7. The OP submitted that the value of such consignment was not declared by the Complainant, at
the time of booking. As per the provisions of Section 103 of the Railways Act, 1989, for any consignment entrusted to Railway Administration for carriage by Railway and the value of such consignment has not been declared as required under Sub Section (2) by the consigner, amount of liability of the Railway Administration for the loss, destruction, damage, deterioration or non-delivery of the consignment, shall, in no case exceed such amount, calculated with reference to the weight of the consignment, as may be prescribed. It is submitted that the amount, as was paid for non-delivery of the consignment was, as per the provisions of Railway Act, 1989.
8. Therefore, we are of considered opinion that, both the fora below have erred in not observing
the provisions of Sections 13 and 15 of Railway Claims Tribunal Act. The Consumer Fora
have no jurisdiction to decide this case on hand, under the Consumer Protection Act, 1986. Accordingly, we allow the revision petition and dismiss the complaint. Parties are directed to bear their own cost. Liberty is given to the Complainant to approach proper Forum for his claim.
..…………………..………J(J.M. MALIK)PRESIDING MEMBER ……………….……………(DR.S.M. KANTIKAR)MEMBER
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