DIVISIONAL RAILWAY MANAGER, CENTRAL RAILWAY vs ASHA ABHIMANYU MULADE

-THIS appeal is directed against the order passed by District Consumer Forum, Solapur in consumer complaint No. 119/2002 dated 2.1.2006, whereby the learned District Consumer Forum was pleased to direct Railways to pay to the complainants an amount of Rs. 1 lakh towards mental compensation and Rs. 500 towards cost. Brief facts of the case may be narrated as under:

COMPLAINANTS who are legal heirs of deceased Abhimanyu Mulade are resident of Solapur. They had filed consumer complaint alleging negligence and deficiency in service on the part of Indian Railways. According to complainants, Abhimanyu Mulade was working as Bill Collector in Allahabad Bank, Mumbai branch. He used to reside in Mumbai and intermittently used to go to Solapur to meet them. On 7.5.2001, he was travelling from Mumbai to Solapur by Hussain Sagar Express. He was hale and hearty, when he started train journey. But when the train was approaching Kurduwadi about 20-25 minutes before Kurduwadi station, in the Railway journey Abhimanyu Mulade was feeling restless. The co-passengers reported this fact to on-duty constable at Kurduwadi station. Co-passengers requested railway police that Abhimanyu Mulade was having pain in the chest, he was feeling restless and some medical help should be given. But railway police did not give any positive response. In fact those passengers were abused and directed to approach station officials at Solapur. When train streamed into Solapur junction, one duty constable Mr. Waghmare, Bakkal No. 475 was approached and passengers told him that Abhimanyu Mulade expired, because no prompt medical aid was given at Kurduwadi junction. Deceased was to get down at Solapur itself. So they requested that dead body of Abhimanyu Mulade should be taken out from the compartment. But constable did not help the co-passengers and, ultimately, the dead body was taken out from the compartment at Wadi junction in Karnataka State. FIR was lodged at Wadi station and after post-mortem was over, on next day, dead body was given to the complainants by railway police at Wadi junction and, therefore, complainant filed consumer complaint alleging that Railways were negligent and deficient in service in not giving prompt medical aid to Abhimanyu Mulade and, therefore, they claimed damages of Rs. 3 lakh for mental agony suffered by them. They filed abstract of diary, abstract of memo, post-mortem report, statements recorded by police, action taken report against constable Mr. Waghmare and also filed affidavit in support of their complaint. O.P./Railways filed written statement and pleaded that dispute involved was not a consumer dispute and consumer Forum had no authority in law to entertain such type of complaint. Jurisdiction was with the Railway Claims Tribunal and there is clear cut bar under Sections 13 and 15 of the Railway Claims Tribunal Act, 1987 and railway constable was the employee of State Government and, therefore, State of Maharashtra should have been proceeded against and they had been wrongly impleaded in the consumer complaint. According to Railways, Hussain Sagar Express was having stop at Kurduwadi junction and deceased passenger should have contacted Guard or TTE in the train itself. Compartment of the Guard was adjacent to general bogie and if they would have been contacted, the Railways would have provided immediate medical aid, but the co-passengers approached wrongly to Government Railway Police and for the negligence of the railway police, railways cannot be held responsible and, therefore, railway pleaded that complaint should be dismissed with cost. However, it was found by the Forum below that Railways had not filed any documents or affidavits in support of written statement.

Thereafter, on the basis of affidavits and documents, learned District Consumer Forum held railways vicariously liable for the negligence exhibited by Government railway police. The policeman on duty at Kurduwadi as well as at Solapur did not take due and proper care of the passengers travelling by Hussain Sagar Express and, therefore, Forum below held railways responsible for the omission to perform his duty by police constable Mr. Waghmare, Bakkal No. 475. Forum below also noted that dead body should have been taken out at Solapur junction itself, but it was allowed to go upto Wadi Junction. So there was further deficiency in service on the part of Railways and, therefore, the learned District Consumer Forum was pleased to pass an award for Rs. 1 lakh and directed Railways to pay the said amount. Aggrieved thereby, Railways has filed this appeal.

WE heard Mr. S.M. Sayyed Advocate for appellant/Railways and Mrs. Anita Marathe Advocate for respondents. We perused the impugned order. We have also seen the post-mortem report and the cause of death mentioned by post-mortem surgeon conducting autopsy. Cause of death as reported in the post-mortem report is the patient died due to cardiac vascular failure as a result of cardiac arrest. In fact in the police papers, it has been mentioned by the relatives of deceased that deceased Abhimanyu Mulade was chronic patient of Asthama and at the time of hearing, relative of the respondent told that deceased was carrying necessary medicines required for patient of Asthama. But deceased died because of cardiac arrest and it is always on the spur of moment and in Railway compartment or in the running train, one may not get any medical aid promptly. This must be borne in mind while appreciating the facts on record that death by cardiac arrest is not unusual. It is common phenomena and a person who is getting heart stroke can be given very little help, if he is travelling in train or undertaking journey by bus. However, what we are finding is the fact that railway police did not render expected help to the deceased passenger, who was travelling by Hussain Sagar Express from Mumbai to Solapur. At Kurduwadi junction, co-passengers alerted police and constable Mr. Waghmare of railway police station, Solapur was also alerted at Solapur railway station. He did not bother to get removed dead body of Abhimanyu Mulade at Solapur itself and allowed dead body to go upto Wadi junction at State of Karnataka. So Government Railway Police, who is in the employment of State of Maharashtra had shown dereliction in duty in not bothering to remove dead body from the compartment at Solapur junction itself. As regards constable''s negligence at Kurduwadi junction, there is some evidence. But then Kurduwadi is a small place, where one may not get any doctor required, who can deal with emergency like that of heart stroke.

IT is debatable point, whether Government of Maharashstra should be made necessary party, since Government Railway Police establishment is the department of State of Maharashtra, but equally it is pertinent to note that these officers from the cadre of State of Mahrashtra are assigned to Railways exclusively for discharging official duties for Railways, that is to protect railway property and to curb the criminal activities, etc. So Railways must be held vicariously responsible for the acts and omission done by Government Railway Police Force given at the disposal of Railway Authorities. When whole the establishment of Government Railway Police throughout Maharashtra is at the command of railway administration, Railway s cannot be heard to say that they are not liable for any wrong done, for any deficiency in service exhibited by railway police officials. Railway administration is equally responsible or liable for the negligence of the Government railway police officials and in the instant case, railways police of Kurduwadi junction and Solapur station were very negligent in dealing with the case of Abhimanyu Mulade, who suffered heart stroke at Kurduwadi and had died before train reached at Solapur. The least police could have done is to remove dead body from the compartment at Solapur proper and to hand over the same to the relatives of deceased. Railway Police, railway administration did not take due and proper care in this behalf and allowed dead body to travel upto Wadi junction in State of Karnataka. We are aware that Wadi junction is 50-60 kms. away from Solapur. But the fact remains that ultimately, complainants herein had to go to Wadi and collect dead body after legal formalities were over. So complainant''s relatives did face mental agony, harassment because of inaction on the part of Railway Authorities of Kurduwadi and Solapur and particularly, Government Railway Police officials of both the stations and, therefore, Railways cannot shirk its responsibility in the instant case. However, though there is no doubt negligence and deficiency on the part of railway administration primarily or vicariously, question is what amount of compensation should be paid to the respondents. Compensation must be commensurate with the deficiency in service established and it must be judicious and reasonable one. Relatives of deceased claimed compensation of Rs. 3 lakh and learned District Consumer Forum was pleased to grant compensation of Rs. 1 lakh, but how they arrived at figure of Rs. 1 lakh is not spelt out in the judgment of the learned District Consumer Forum. For the death of a passenger in the course of railway journey, railway cannot be held responsible for the loss of remaining service of the employee. Because Indian railway is not insuring the travellers at large undertaking railway journey and death of the passenger was on account of heart stroke and not on account of omission on the part of Railways, except the omission mentioned above. So simply because life of deceased Abhimanyu Mulade got curtailed because of heart stroke, that would not mean that Railways should compensate the family of the deceased passenger for all the benefits deprived of by the relatives. So granting of Rs. 1 lakh compensation according to us is slightly on higher side. Deficiency in service was simply on the part of Government Railway Police of Kurduwadi and Solapur and nothing else and, therefore, we are of the view that compensation of Rs. 1 lakh is on higher side and, as such, by allowing the appeal partly, we are inclined to reduce compensation substantially. Hence we pass following order: ORDER 1. Appeal is partly allowed. 2. In column No. 1 of the operative part of order, compensation payable is reduced to Rs. 40,000 in place of Rs. 1akh. 3. Misc. application for stay stands disposed of. 4. Rest of the order is confirmed. 5. Copies of the order herein be furnished to the parties.

Appeal partly allowed.