M.Chidambaram vs SOUTHERN RAILWAYS

THIS complaint is filed under Section 12 r/w Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') by M. Chidambaram of T. Nagar, Chennai, against the opposite parties-Southern Railways and another, for deficiency of service.

THE factual matrix of the case as set out in the complaint are as follows : (a) THE complainant''s son C. Jayendra, aged about 18 years, studying B.E. Computer course at M.V. College of Engineering at Whitefield, while travelling from Madras to Bangalore by Madras Mail met with an accident at about 5.50 a.m. on 9.6.1994. It is alleged that when the train was passing the Whitefield Station, he slipped from the compartment and fell through the space between the moving train and the Platform, with the result, his legs were run over and he was lying on the track profusely bleeding. It is stated that according to the eye witness, Jayendra was fully conscious after the accident and was pleading with opposite party-2 - Station Master to save his life. He even took out Rs. 2,000/- from his pocket and removed his finger ring and offered them to opposite party- 2, begging to do something to relieve his pain and to save him from the jaws of death. (b) It is the case of the complainant that the opposite party-2 inhumanly refused to tender any help on the plea that it was a police case and till the police arrived nothing could be done. It is alleged that he was quite adamant and in fact prevented others who offered to render help, threatening that they will be held responsible if any legal complications arose later. Jayendra in the meantime bled himself to death sans any help from any quarter. THE death came at 7.00 a.m. and by about 7.30 a.m. opposite party-2 left the station as his shift had ended. When A. Rajan, a first year B.E. student of the same college came with his friends and seniors to render necessary help, Jayendra was already dead. (c) It is alleged that 3 students of the same college had filed F.I.R. before the jurisdictional police alleging that when one among them tried to lift a profusely bleeding Jayendra from the track for rendering medical aid, opposite party-2 prevented him from touching him. Opposite party No. 2 also did not offer any first-aid which would have been helpful at the critical time. In fact, it is alleged right outside the Railway Station there was a medical centre (Dakshina Bharat Mahila Sangham, Kadugodi) which had an Ambulance-Rural Mobile Hospital on wheels, available round the clock. It is stated that at a later point of time, the President of the Mahila Sangham had mad a public statement in the wake of an outcry about this incident that had the Station Master requisitioned any help, it would have been rendered post- haste; but it was only when a lady resident of the area asked for help, an Ambulance was despatched. Moreover, the renowned Satya Sai Hospital was situated just a kilometre and half away from the scene of accident and if at all opposite party- 2 had sought for timely help, a precious life could have been saved. It is alleged that the life of a bright, industrious student was nipped in the bud due to utter negligence and callous indifference of opposite party- 2, for which opposite party-1 also takes as much blame vicariously. It is, therefore, prayed that even though the loss of life of a boy who had all the prospects in the world to succeed is not susceptible of being evaluated in terms of money, the opposite parties are liable to compensate for their negligence by paying compensation of a sum of Rs. twenty lakhs. This is the sum and substance of the complaint in its naked form.

Opposite party-1 filed their objection and also the affidavit-evidence. The complainant also filed his affidavit. C. Ws. 1 to 3 were examined for the complainant while R.W. 1 was examined for the opposite parties. Some documents produced, except statement under Section 161, Cr.P.C. are marked for the complainant subject to objection by the opposite party-Parties have filed a joint memo on 10.2.2000 adopting the evidence recorded earlier, in view of the change in the complexion of this Commission.

THE opposite parties contested the complaint stoutly on the following grounds : (1) THE Madras-Bangalore Mail had no stop at Whitefield Railway Station. When the train was in motion, the deceased attempted to alight from it negligently, which resulted in his falling into the space between the train and the platform, hurting himself grievously in the process and ultimately succumbing to the injury.

(2) THE allegation that the Station Master was adamant and callous and did not render any basic help is false. It is also false to say that he prevented others from rendering timely help. THE allegation that the deceased gave him Rs. 2,000/- and a finger ring to save his life is not supported by evidence. THE Station Master had in fact informed his superiors about the incident. When shift duty came to an end, he had handed over charge to his successor and departed, which cannot be termed as deficiency of service. Consequently, opposite party-1 is also not liable to be branded as negligent vicariously, particularly when no case has been registered by police against opposite party-1, much less having initiated prosecution for any ofence.

(3) Even though there are instructions to the Railway personel regarding railway disaster management, the same cannot be taken advantage of by the complainant inasmuch as the instant incident is due to the gross negligence of the deceased in attempting to alight from a moving train which had no stop in the platform when he made the attempt.

(4) THE injured could not be shifted from the track immediately due to the fact that his limbs had severed and he had sustained multiple injuries on his head and body, making it impossible to lay persons to shift him for fear of aggravating the injury. THE Station Master had attended on the injured in the midst of his various other duties and had rendered all possible humanitarian aid. THE fact that the injured died nevertheless is no reflection on him since it is not so much the response of opposite party No. 2 as the grievous nature of the injury sustained which took the life of the injured.

(5) THE claim for compensation is unfounded and unjust since the incident has not occurred on account of any act of commission or omission on the part of the opposite parties, but due to the negligence of the deceased himself for which the opposite parties cannot take the blame. THE complainant only wants to enrich himself taking advantage of an unfortunate incident. Moreover, the amount claimed is beyond any rational bounds, being highly exaggerated and out of tune with the realities of the incident. For these and other defence pressed into service, the opposite parties prayed that the complaint be dismissed as devoid of merits.

We have heard Mr. P.B. Appaiah, learned Counsel for the complainant and Mr. A.N. Venugopal Gowda, learned Counsel for opposite party-1. Mr. P.B. Appaiah, while taking us through the facts narrated in the complaint, sought to lay particular stress on the human aspect of the case, elaborating that but for an indifferent attitude of opposite party-2 at the crucial moment, the deceased had every chance of survival. The learned Counsel pointed out that though the accident took place at 5.50 a.m. on 9.6.1994, the boy was lying on the track for over one hour writhing in fear of impending death, constantly calling out for help. It was pointed out that despite clear instructions in the Railway Safety Diary, 1990, as to the process to be put into gear to cope up with a situation of this nature, the Station Master not only violated the basic obligation of rendering assistance to the injured, but by a streak of strange obstinacy, did not even allow the collegemates and the on- lookers to come to the aid of the injured. While calling this is case of sadistic indifference and misplaced duty awareness, the learned Counsel contended that what the media and the people saw in this incident was an example of official apathy and insensate detachment of humanitarian outlook in a person who, in his capacity as the official of the highest grade on the spot, had all the resources at his disposal to render all possible help to the injured. Instead, by a false obsession, he chose to refrain from giving even a first-aid to the injured, with the result, he allowed a grieviously injured person to slowly bleed himself to death. Such a thing was allowed to happen when a Medical Centre was located just beyond the Railway Station and a little ahead the well-known Satya Sai Hospital is also situated. The learned Counsel submitted that this is eminently a case of gross negligence resulting in loss of a precious life for which opposite parties are to be held totally liable. In support of his contention, the learned Counsel cited the following case laws while summing up his arguments : 1997 (1) CPR 133 1998 (3) SCC 67.

MR. Venugopal Gowda, learned Counsel, on the other hand contended vehemently that it was the negligence of the deceased which cost him his life. The learned Counsel stated that since the M.V. College of Engineering where the deceased was studying at the time of the incident was nearer to the Railway Station, he wanted to alight at the station when the train was in motion despite knowing that such an attempt may lead to a mishap. Evidently, the deceased wanted to avoid the odium of covering the distance back to the college from Krishnarajapuram Railway Station which was the next stop for the Madras Mail. The deceased had paid the price for a misadventure which he ought not to have undertaken, knowing fully well that alighting from a fast moving train may lead to grievous injuries. The Station Master was informed abouT the accident at 6.10 a.m. and the boy had succumbed to his injuries at 6.55 a.m. During the interrugnum he could do precious little since scheduled trains were expected at that hour. Nevertheless, the Station Master had done what was expected of him by way of accident management, but since the boy had been injured critically, no one could save him. When the ambulance arrived, the boy had breathed his last which cannot be considered as a black spot on either of the opposite parties, particularly on opposite party-1. The learned Counsel submitted that while everyone sympathised with the complainant for the unfortunate incident, it is not as if the incident occurred on account of the negligence of opposite party-1. Negligence, if at all, has to be ascribed to the deceased for the misadventure he undertook for no apparent benefit, knowing fully well that it is fought without danger. Hence, it was contended, the complainant lacked genuine credential to brand opposite parties as negligent. The learned Counsel contended that the 2 citations relied upon by the complainant has no applicability to the present case, but the citation reported in III (1997) CPJ 523 (NC), is on the point and has to be relied upon by this Commission. Summing up his arguments on these lines, the learned Counsel contended that there is no merit in the complaint and hence it is liable to be dismissed in the interest of justice. In the context of these rival contentions, it is imperative to frame the following issues : (1) Whether the opposite parties are guilty of deficiency of service within the meaning of that expression under the Act ? (2) If so, what order ? Poini No. 1 : During cross-examination, R.W. 1, B. Prasantha Kumar, Sr. Divisional Operator- Manager, Southern Railways has volunteered to speak as follows : "The instructions relevant in this connection are : (1) Render first-aid to the extent possible. (2) Summon the medical assistance required. (3) Convey the information to the Police. (4) Issue message to the concerned Railway Officer, as indicated in the Accident Manual." These are the responsibilities of the employee f the highest grade at the accident spot, who in the instant case was the Station Master-opposite party 2. In his re-examination, R.W. 1 has further admitted as follows : "Respondent No. 2 has carried out the instructions reflected in the mannual except that he did not give message to the Railway Controlling Officer and that he did not shift the injured to the platform from the track and he has failed to summon the medical assistance from the nearest facilities available."

HOWEVER, R.W. 1, seeks to qualify these admissions by stating that the instructions are relevant only whenever there is a train accident and that the incident in question is not a train accident. This contention, prima facie, contradicts the earlier admission that the instructions relevant in the case like the one in hand are rendering first- aid, summoning medical assistance, etc. In the case of a train accident, the "disaster management" itinerary includes : (1) Immediate medical relief. (2) Quick redressal to the injured by transporting them to the nearest hospital/dispensary, requisitioning road transport available. (3) Advise and get help from the civil authorities and police. These are, of course, the modus operandi in the wake of train accidents involving injuries to many. According to the complainant, the same modus operandi has to be adopted when a passenger is injured even without a train accident. R.W. 1 concedes during his cross-examination that first aid is to be given to an injured. This is a humanitarian action and no responsible authority, much less the Railway would contend, justifiably, that if a passenger is injured not as consequence of a train accident, no first-aid is liable to be provided. In fact, during the course of his cross-examination, R.W. 1 does a turn around and states as follows : "I agree that whenever an incident like the one in hand occur at the Railway Station, certain actions are required to be followed by the Railway Officials, as laid down in the Railway Manual."

IN the context of such admission, what is required to be seen, is whether the basic requirement as laid down in the Manual has been complied with. One of the specific allegations of the complainant is that no assistance whatsoever was provided to the injured by opposite party-2, which evidently means that even first-aid was not administered, though the manual prescribes immediate medical relief to the injured. IN fact it is the case of the complainant that opposite party-2 not only stood firm against rendering any help before police arrived, but also prevented others from shifting the injured to a hospital. Opposite party-1, while generally stating that opposite party-2 has done what was possible in the circumstance, have not chosen to elaborate as to what were the specific actions taken by opposite party-2 to render help to a passenger who had sustained multiple injuries including loss of legs. C.W. 2 has stated during his cross-examination that the "Station Master told us that it was a police case and nobody should go near the injured". Opposite party-1 has however sought to defend opposite party-2 stating that he (opposite party 2) had informed the higher authorities about the incident promptly. But information to higher echelons per se cannot take the place of rendering basic aid to a passenger who was grievously injured, nor such an act washes away the stigma of inaction on the part of opposite party No. 2 in rendering necessary assistance when such assistance was needed most. From the general behaviour of opposite party No. 2, what strikes us as probable is not any antagonistic or inimical disposition towards the injured or even a devil-may-care attitude, but a false sense of duty or misplaced apprehension that things should be left as they are till police arrived. Perhaps hosuffered from too much of an obsession that if he shifted the injured from the track, something may go wrong for which he will be called upon to account for. This presumption gains credibility in the light of the deposition of C.W. 2 that opposite party-2 warned him not to go near the injured till police arrived. It is evident that opposite party-2 is either unaware of what his priorities are in a situation like the one presented itself before him, or having known about them, he was too scared to do anything to render help to the injured. In either case it has resulted in expending a precious life which cannot but be construed as having occurred on account of the negligence of opposite party-2.

At this juncture it is necessary to take a look at the true import of what is negligence. The word ''negligence'' is not defined in the Consumer Protection Act. However, ''The Law Lexicon'' (P. Ramanatha Iyer-page 862) defines negligence in the following terms : "Negligence in law signifies a coming short of the performance of duty." "Negligence is the absence of care according to the circumstance. The sole standard is the want of that amount of care which is required to be shown in the circumstance of each particular case by a reasonably careful man. "The definition given by Judge Cooly in his work on Torts and quoted with approval in many decisions is perhaps the most comprehensive. He defines it as "the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance, which the circumstances justly demand, whereby, such other person suffers injury."

GOING by the terms and spirit of this definition, we have no hesitation whatsoever to hold that opposite party-2 was negligent and has come short of the performance of his duty of taking due care of the injured. He has failed to . protect the physical well-being of the injured by refraining from administering any first aid, not to speak of preventing the removal and transport of the injured to the nearby medical centre. He has failed to exercise care or vigilance for the welfare of the injured which the circumstances of the incident justly demanded whereby the injury caused to the passenger led to his ultimate death. We find that even though no motive is discernible in the odd behaviour of opposite party-2, he is guilty of blatant negligence amounting to deficiency of service within the meaning of that expression under the Consumer Protection Act. The fact that he refrained from rendering even the first aid is one of the circumstances which ought to brand him as uncaring and pitilessly deficient inhuman approach. Simultaneously, we hold that opposite party-1 is also guilty of deficient service vicariously, in view of the negligence of opposite party-2, but for which, it has to be presumed, the injured had a chance of survival. At the Bar, it was brought to our notice that opposite party-2 has been absconding since the date of this incident. Such a happening per se cannot absolve him of his liability for the type of deficient service rendered by him, nor would it lighten or dissipate the liability of opposite party- 1 in relation to the lapses of opposite party-2. From the material placed on record we do not find any circumstance which would come in aid of opposite party-2 to lessen the burden of his guilt. We find clear shortcomings in the nature and manner of performance of his duties which ought not to have occurred when a human life is at stake. We are, therefore, constrained to answer point No. 1 in the affirmative. Point No. 2 :

IN the view that we have taken under point No. 1, what remains to be seen is what is the compensation the complainant is entitled to. There is no gain-saying the fact that loss of a life is not susceptible of being evaluated in terms of money. IN the instant case the boy who succumbed to the injury was hardly 18 years of age, academically bright and had offers to prosecute his studies abroad. His untimely demise was naturally a tragic incident of the highest magnitude for the family. It is the case of the complainant that if timely medical help had been rendered to the boy who was fully conscious till the end came, he would have had every chance to survive. Such a contention is however not to be accepted on its face value, since it cannot be said with certainty that even with the best possible medical care he would survive the type of injury he had sustained. It is also relevant in this context to take cognizance of the fact that he had fallen at a platform where the train in which he was travelling was not supposed to stop. Taking into account these diverse factors, and on due consideration of the facts and circumstances of this case, we believe that the ends of justice will be served if we award a compensation of Rs. 3 lakhs to the complainant. The opposite parties will be jointly,and severally liable to pay this amount to the complainant. IN the result, we pass the following ORDER The complaint is allowed. The opposite parties are directed to pay jointly and severally a sum of Rs, 3,00,000/- (Rs. three lakhs only) to the complainant towards compensation, within 6 weeks of receipt of this order, failing which the amount will attract interest @ 15% p.a. from the date of complaint till payment. We also award costs of Rs. 3,000/- (Rs. three thousand only) to the complainant in these proceedings. Complaint allowed.