RAMESH CHANDRA BHATNAGAR vs Union of India

THIS is a complainant''s appeal against the order dated 10.3.1997 passed in Case No. 63/96 by the District Consumer Disputes Redressal Forum, Ratlam (for short the ''District Forum'').

FACTS giving rise to this appeal are thus : that the appellant purchased two reserved tickets No. 26206 and 21664 for travelling from Ratlam to Indore in Awantika Express, 9061 Down. The appellant was allotted reserved seat No. 15 in coach No. 5374 on 11.1.1996. The appellant to take tea from the tea vendor at the railway platform lifted the shutter of window at Nagda Railway Station, which fell down as it was without spring and stopper as a result of which the appellant received grievous injury in two fingers of his right hand. The appellant complained and lodged the claim but no heed was paid, hence, he filed the complaint before the District Forum to claim the amount of Rs. 5,000/- for deficiency in service in keeping the window without its shutter and spring. The respondent after notice raised a preliminary objection that the claim for such an accident falls within the purview of Section 124 or 124A of the Indian Railways Act, 1989 (for short "Railways Act"), and therefore, the jurisdiction to entertain and decide such application lies with the Railways Claims Tribunal established and constituted under the Railways Claims Tribunal Act, 1987 (for short "RCT Act") and the jurisdiction of the Consumer FORA is barred under Section 15 of the RCT Act. The objection so raised found favour, hence, the complaint was returned to the appellant for its presentation before the Railways Claims Tribunal. Mr. S.K. Menon, learned Counsel for the appellant contended that it was not a case of an accident as defined in Clause (a) of Section 123 or untoward incident as defined in Clause (c) of Section 123 of the Railways Act, hence the Railways Claims Tribunal has no jurisdiction to entertain such complaint, for deficiency in service, therefore, the complaint was maintainable before the Consumer FORA, Counsel cited a decision of the National Commission in case of Union of India & Ors. v. Nathmal Hansaria & Anr., I (1997) CPJ 20 (NC).

To consider the question of jurisdiction, it would be appropriate to refer the definitions of "accident" and "untoward incident" and Sections 124, 124-A and 125 of the Railways Act, which we quote : "123. Definitions-In this Chapter, unless the context otherwise requires- (a) "accident" means an accident of the nature described in Section 124; (b) ........................................ (c) "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 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 railways station; or (2) the accidental falling of any passenger from a train carrying passengers. 124. Extent of liability-When in the course of working a railway, an accident occurs being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident. Explanation-For the purpose of this section "passenger" includes a railway servant on duty.

124-A. Compensation on account of untoward incident-When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to a passenger as a result of such untoward incident : Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident. Explanation-For the purpose of this section, "passenger" includes- (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident. 125. Application for compensation-(1) An application for compensation under Section 124 or Section 124A may be made to the Claims Tribunal- (a) by the person who has sustained the injury or suffered any loss; or (b) by any agent duly authorised by such person in this behalf; or (c) where such person is a minor, by his guardian; or (d) where death has result from the accident, or the untoward incident by any dependant of the deceased or where such a dependent is a minor, by his guardian. (2) Every application by a dependent for compensation under this section shall be for the benefit of every other dependent."

IT would also be proper here only to refer Sections 13 and 15 of the RCT Act, which reads 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 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, damages, deteriorations or non-delivery of animals or goods entrusted to a railway administration for carriage by railway; (ii) compensation payable under Section 82A of the Railway 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. (1a) 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, applicable to the inquiring into or determining, any claims by the Claims Tribunal under this Act. 15. Bar of jurisdiction-On or 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 (1A) of Section 13."

From a bare look to the definition of "accident" and Section 124 it is clear that the accident should be of the nature envisaged in Section 124 of the Railways Act, i.e. the ''accident'' should be to a train or the derailment or part of the train carrying passengers, reason of either collision of two trains derailment of such train; or other accident to such train, then only liability arises of railway administration whether or not there has been any wrongful act, neglect or default on the part of the railway administration. Such passenger who has been injured or has suffered a loss would be entitled to maintain an action and recover damages in respect thereof and the railway administration shall notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only a loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident. See the decision of Supreme Court in Union of India v. Sunil Kumar, AIR 1984 SC 1737, followed by Division Bench of High Court of M.P. in case of Janki Bai v. Union of India, 1998 (1) MPLJ 54.

THE alleged injury suffered by the appellant is also not due to "untoward incident", hence, in view of the definition of ''accident'' and ''untoward incident'' and clear language of Sections 124, 124-A and 125 of the Railways Act, the application cannot be maintained by the appellant before the Railways Claims Tribunal as the jurisdiction, powers and authority of the Claims Tribunal to deal with an application under Section 16, are given in Section 13 of the RCT Act, hence, bar of jurisdiction contained in Section 15 of the RCT Act would not apply in a complaint filed by the complainant for the deficiency in service. In case of Union of India & Ors. v. Nathmal Hansaria & Anr. (supra), the National Commission considered the question wherein the death of a passenger while passing through from one compartment to another, because of absence of grills and other safety devices in the passage, the National Commission after referring to Section 13 of the RCT Act and Section 124 of the Railways Act, held that such an accident cannot be described as a railway accident so as to exclude the jurisdiction of the Consumer FORA by Railways Claims Tribunal Act. In the case in hand, the deficiency in service has been alleged in not providing the window shutter with spring and stopper in a working condition so that its shutter may not fall on any of the passengers sitting and using the window. Therefore, the Consumer FORA has to consider whether there was deficiency in service in view of the definition of deficiency and service as defined in Sections 2(1)(g) and 2(1)(o) of the Consumer Protection Act, 1986.

IN view of the above, the case has to go back for its decision afresh on merits in accordance with law. As the complaint was dismissed on preliminary objection, hence, the respondents shall be given an opportunity to file their defence version and then after affording the opportunity of hearing to the parties the case shall be decided within ninety days from the date of appearance of the parties.

IN the result, the appeal is allowed, the order of the District Forum is set aside and the case is sent back to the District Forum for its decision afresh. IN the circumstances, the parties to bear their own costs. A copy of this order be conveyed to the parties and a copy be sent to the District Forum alongwith the record of the case post-haste. Appeal allowed.