PREM JAIN vs Union of India

MRS. Prem Jain, widow and her minor daughters Jyoti Jain and Tina Jain, aged about 17 and 11 years respectively through their mother filed the present complaint against Union of India and others, claiming Rs. 19,20,000/- as damages suffered on account of death of Narinder Kumar Jain, which occurred in the train on his journey from Ludhiana to Dhanbad near Banaras. According to allegations made in the complaint, Narinder Kumar Jain boarded Kisan Express train from Ludhiana for Dhanbad on a ticket No. 0446817, Annexure Cl. He was allotted Berth No. 62 in Coach No. S-2. He was hale and hearty when he left for Dhanbad. Near Banaras Railway Station, he complained of chest pain and requested the Ticket Collector and Coach Attendant for providing him first aid. He was assured that the same would be provided at Banaras. Since, no medical aid was provided to him even at Banaras, he died in Coach itself on June 15, 1995. The Railway Police recovered the dead body and got post-mortem conducted, copy of the post-mortem report and death certificate being Annexures C2 and C3. Narinder Kumar was stated to be 47 years of age. News regarding his death appeared in the Newspaper, copies Annexures C4 to C6. He was earning Rs. 10,000/- per month and the complainants were dependent upon him. Non-providing of medical aid by employees of the Railway ultimately resulted in his death. This was the deficiency in rendering service, a negligent act attributed to the opposite parties. On these allegations, the complaint was filed. The opposite party contested the complaint and took up preliminary objections in the reply. Territorial jurisdiction of the State Commission to entertain the complaint was disputed; proper parties were not impleaded; complaint was barred by time; allegations were not covered under the provisions of Section 124 or Section 124 (A) of the Railways Act. The factum that the deceased was travelling in the train and died on account of heart failure was admitted. However, negligence on the part of the Railways in the matter was denied. Rejoinder was filed by the complainant reiterating the stand as taken up in the complaint. The complainant, MRS. Prem Jain, submitted her affidavit in support of the complaint referring to documents Cl to C6 produced with complaint and order of Income Tax Department, Annexure C7. On the other hand, affidavit of I.J. Malhotra, Chief Commercial Officer, Northern Railway, New Delhi was produced in support of the reply filed.

WE have heard learned Counsel for the parties. For the purpose of deciding the territorial jurisdiction of the State Commission to entertain the complaint, reference be made to Section 11 (2) of the Consumer Protection Act. Apart from the fact that the Railways have their branch office in the State, present is a case where part of cause of action can be held to have arisen within the territorial jurisdiction of this Commission. Journey was commenced from Ludhiana against a ticket purchased at Ludhiana, which was to be upto Dhanbad. Therefore, part of cause of action accrued at Ludhiana from where ticket was purchased and journey commenced. Anything happening during the course of the journey would be a set of circumstances or facts constituting the cause of action. Thus, the present complaint could be filed before the State Commission. Since, the journey was performed on June 15,1995 and the death also occurred on that date, which fact is not disputed, the present complaint filed on August 29,1996 well within a period of 2 years as provided under Section 24 (a) of the Consumer Protection Act, is within the period of limitation. It is so held.

Learned Counsel for the opposite parties referred to the provisions of Sections 124 and 124 (a) of the Railways Act and argued that the present case is not covered by such provisions and the Railways cannot be made liable for the death of Narinder Kumar. While referring to the Post Mortem Report and Death Certificate as produced by the complainant, it is not disputed that Narinder Kumar died on account of heart failure, which according to Counsel for the Railways had no connection with the services to be rendered by the Railways. Section 124 of the Railways Act, 1989 refers to the extent of the liability of the Railways in respect of any accident occurred, either collusion between trains or derailment or other accident to the train or any part of a train carrying passengers. Obviously present is not such a case of accident as referred to in Section 124 of the Railways Act. The present is also not a case of untoward occurrence as contemplated under Section 124(A) as amended in 1994.

UNDER the Consumer Protection Act, the complainant is to succeed on establishment of deficiency in rendering service on the part of the opposite party or proof of any negligent act causing loss or damages suffered by the complainant. The burden is on the complainant to prove the same and present is a case where the complainant has utterly failed to prove the same. From perusal of the affidavit of Mrs. Prem Jain, it is clear that she was not present at the time of death of Narinder Kumar Jain. On coming to know about her death as per her affidavit, she had gone there, identified the dead body and taken possession of the same. Thus, her assertion either in the complaint or in her affidavit that the deceased Narinder Kumar had asked for medical aid to the Ticket Collector or the Coach Attendant of the train is nothing but hearsay and cannot be relied upon. Learned Counsel for the complainant referred to the documents i.e. Annexures C4 to C6, which are clippings from the Newspaper reporting the death of Narinder Kumar during his journey on the train. These clippings from the Newspaper as such cannot be treated as substantive evidence to be relied upon, more particularly with the facts as referred to above. Orally learned Counsel for the complainant argued that the report was also lodged with the police at the time of recovery of the dead body from the train and the police must have recorded statement of the witnesses, co-passengers. His request that such police record be summoned to go through such statements, which would corroborate the complainant''s case. This course at this stage is not permissible. A fishing enquiry is not contemplated under the Consumer Protection Act. Furthermore, statement of witnesses recorded by the police under the provisions of Cr.P.C., particularly Section 161 of Cr.P.C., cannot be treated as substantive evidence to be relied upon in other proceedings. They can be used only in the trial of the criminal case in which such statements are recorded. There is no direct evidence produced in the present case to prove any deficiency in rendering service on the part of the Railways in the matter of providing medical aid or negligent act on the part of the opposite parties. For the reasons recorded above, this complaint is dismissed, leaving the complainant, if so advised to approach Civil Court, where evidence in detail can be produced by the parties. There will be no order as to costs in this complaint. Complaint dismissed.