SHIV DEVI AGARWAL vs Union of India

SMT. Shiv Devi Agarwal and Shri Ram Vilas Agarwal, who are the bereaved mother and father respectively of Shri Raju Agarwal deceased, have filed this complaint under Section 12 of the Consumer Protection Act, 1986 (the ''Act''), alleging therein that while in the course of his journey by train on 2.8.1999, from Kherli to Jaipur via Bandikui, the deceased was waiting at Platform No. 1 of Railway Station, Bandikui for the arrival of Delhi-Jodhpur (Intercity) Express Train No. 4859 at about 9.00 p.m., he went to drink water at the hydrant (drinking water booth) at the Platform, that when he was drinking water at the hydrant, the foundation wall of the hydrant fell down causing the fall of the hydrant above and resulting in grievous head injury to the deceased, leading to his death instantaneously.

THE complainants alleged negligence on the part of the respondent-Authorities of the Railway Administration in getting the walls of the hydrant constructed with inferior/sub-standard quality of raw material and in not maintaining the same in order to avoid the happening of any untoward incident/accident. THE complainants thus alleged deficiency in service on the part of the respondent and claimed Rs. 15,00,000/- as compensation for mental agony and expenses plus Rs. 25,000/- towards cost of litigation. Apart from challenging the jurisdiction of this Commission to entertain and decide the complaint on the grounds of absence of the relationship of "consumer" and "provider of service" between the deceased on the one hand and the respondent on the other and the bar created by Sections 13, 15 and 28 of the Railway Claims Tribunal Act, 1987 to the maintainability of such complaints before the Redressal Agencies under the Consumer Protection Act, 1986, the respondents claimed the complaint to be quite false and baseless against them. Their version of the case is that in order to provide drinking water facility to the railway passengers and others hydrant drinking water booths are constructed almost on all the platforms of Railway Stations according to the technically approved specifications using quality controlled raw material, that the hydrant drinking water booth in question was newly constructed at Platform No. 1 of Bandikui Railway Station and the same had not yet been connected with water supply system and as such was not being used by the passenger - public and other persons for drinking water therefrom, that on the fateful day and time four or five passengers, including the unfortunate Raju deceased, made themselves seated on the lower part of the hydrant and since the supporting walls could not bear the weight of those persons, it fell down on the ground causing the projected portion of the hydrant to fall on the person seated below, that whereas other passengers were lucky enough to flee from the place of fall of the projected roof of the hydrant, the deceased was not so lucky and did sustain the fatal injury on his head. The respondents thus asserted that it was totally an unforeseen and unfortunate accident to which they were not contributorily negligent in any way and, therefore, not guilty of rendering negligent or deficient services to the deceased Raju, if at all a relationship of a consumer and provider of service be remotely found existing between them.

In support of their version, the complainants relied upon the affidavit of Shri Ram Vilas Agarwal, the bereaved father of the deceased Raju (26) and a number of documents marked as Ex. A1 to Ex. A20. Such documents mainly include the copies of FIR, seizure memos and statements of persons recorded by G.R.P. in course of enquiry under Section 174 of Cr. P.C., notice, photos, receipts, etc. etc.

ON the other hand, the respondents have relied upon the affidavits of S/Shri Rami Mohan Sharma, Senior Regional Engineer, Western Railways, Jaipur, Krishna Nand Sharma, Mahendra Kumar Sharma, Banwari Lal, Vinod Kumar all residents of Bandikui and Nanag Ram Saini, r/o Dausa. Certain sketch-maps, calculation sheets and designs have also been filed. It has been very vehemently urged by the O.Ps. through their written reply and arguments that by the mere seizure of one ticket from Kherli Railway Station to Bandikui Railway Station and the other from Bandikui Railway Station to Jaipur Railway Station, by the Railway Police from the pocket of the pant of deceased Raju, it cannot be concluded that the deceased had hired the "services" of Railway Administration for consideration and as such he had become a "Consumer" and the present persons, "Complainants" within the meaning of the terms defined in Section 2(1)(d) and Section 2(1)(b) of the Act respectively. This argument proceeds on the ill-founded assumption that some well-wisher of the deceased might have placed/planted the ticket from Railway Station Bandikui to Jaipur Railway Station in the pocket of the pant of the deceased after his death with a view to prove him to be the hirer of the services of the Railway Administration for consideration. We fail to accord our judicial recognition to such baseless, misleading and mischievous argument.

IT is an undisputed fact that the deceased had sustained fatal injuries on head and other parts of his body as a result of the fall of the hydrant wall over him at Bandikui Railway Station Platform No. 1, at about 9.30 p.m. on 2.8.1999. IT is also not disputed that the police personnel at the G.R.P. Police Station at that platform had immediately taken cognizance of the shockingly unfortunate incident, registered FIR No. 8/1999 under Section 174 of Cr.P.C. at 9.45 p.m. at the instance of Ticket Collector (Annexure 1), taken possession of the dead body of Raju, prepared the Panchnama (Annexure 2), got the photographs of the dead body of Raju taken (Annexures 7 to 11), sent the requisition to the Sub-Divisional Magistrate, Bandikui for approval of Board of Doctors (Annexure 4). The GRP Police Station was located at a distance of 250 feet only from the place of incident and, therefore, it was quite natural for the Railway Police to have taken possession of the dead body at 9.45 p.m. on 2.8.1999 and to have busied themselves in discharging their official and statutory duties in such cases. In the course of discharge of such duties the police officer had also searched the belongings of the deceased on his person. On making such search in presence of Shri Chain Singh, Vendor Trolly Stall No. 1 and Shri Pappu, Vendor at a Tea Stall at the platform, the police had recovered a purse containing Rs. 216/-, a letter-pad, whereupon M/s. Billoo Engineering Works, Kathumar Road, Kherli, Alwar, Telephone No. 20310, STD No. 01492 were written, two Railway Tickets one from Kherli to Bandikui and the other from Bandikui to Jaipur both dated 2.8.1999 from his clothes and duly seized them (Annexure 14). The post-mortem examination on the dead body of the deceased was conducted at 9.00 a.m. on 3.8.1999, (Annexure 5). By that time information of the incident had been given by the police at the address, obtained from the letter-pad seized from the person of the deceased and Shri Ram Vilas Agarwal, father co-complainant, had reached Bandikui. He then lodged a First Information Report (FIR) with the GRP whereupon Crime No. 50/1999 under Section 304A of I.P.C. was registered (Annexure) 2A and 3). The sequence of events, as stated above, not only fully supports the version of the complainants regarding the deceased having undertaken a railway journey from Kherli to Jaipur via Bandikui on 2.8.1999. It is not disputed by the O.Ps. that in order to reach Jaipur from Kherli by train, one shall have to board a train from Kherli to Bandikui and then another train from Bandikui to Jaipur. The deceased was found keeping the tickets for both the trains in his possession is fully established from the search and seizure proceedings conducted by the GRP personnel in this case during the very night, as otherwise the identity and his address at Kherli could not have been known by them to facilitate the arrival of the father of the deceased by 9.00 a.m. on 3.8.1999. The only argument that in order to purchase a ticket for his journey from Bandikui to Jaipur, the deceased was necessarily required to surrender his ticket from Kherli to Bandikui in order to reach the booking/ticket window outside the platform and since he was found in possession of both the tickets, it should be assumed that some well-wisher of the deceased had placed/planted the ticket from Bandikui to Jaipur in the rear pocket of the pant of the deceased, does not impress us in any way. It is matter of day to day common experience that many a passengers by trains pass through the exit on the platform without surrendering the tickets with them, either due to the rush at the exit or even absence of the Ticket Collector thereat. We are, therefore, not prepared to accept that in the wake of such a horrifying painful incident, taking the toll of a young man by the violent fall of the very foundation of the hydrant, which was a commonly visited place, some assumed and unknown well-wisher of the deceased or even the police officials of the GRP would plant a railway ticket in the presence of a number of passengers, visitors at the platform or quite independent and impartial members of the Railway Staff and GRP Staff. In our opinion, the objections raised by the O.Ps. against the maintainability of the complaint on the basis of unfounded assumption of the deceased having not hired the services of the Railway Administration for his journey from Bandikui to Jaipur on 2.8.1999 by Delhi-Jodhpur Express Train are quite baseless, ill-conceived and ill-advised and are emphatically rejected as such. It was next urged on behalf of the O.Ps. that even if it be held that the deceased Raju had hired the services of the O.Ps. for consideration for journey by train from Bandikui Railway Station to Jaipur Railway Station, then such services did not include providing any further service to him on the platform and if on the platform he met with some accident, causing some sort of inconvenience or bodily injury to him or even loss to his life, either as a result of his own fault or fault of any other person, including an employee, servant, labourer, contractor, agent of the Railway Administration, the O.Ps. cannot be held liable for rendering deficient "service" to him. This argument too is totally misconceived, quite illogical and signals a totally wrong notion, held by the O.Ps. of the concepts of "service" and "deficiency" used in the context of the aims and object of the Consumer Protection Act, 1986.

THE terms "service" and "deficiency" have been defined in Sections 2(1)(o) and 2(1)(g) of the Act respectively as under : "Section 2(1)(o). ''service'' means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"

"Section 2(1)(g). ''deficiency'' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

A bare reading of the definition of the term "service", as reproduced above, informs that it includes service of any description which is made available to potential users. This definition of the term "service" in this Act is quite exhaustive and wide enough to embrace within its fold not only the act of rendering the service of actual journey only, contracted for by and between the parties. It includes all such other acts to be done by the provider of service which are incidental to and necessary for the availment of the services hired by the hirer. In other words, if the provider of service has agreed to provide to the hirer the means of journey, he has necessarily undertaken to provide to him such facilities also which are necessary for peaceful and comfortable journey by him. The provider of service necessarily undertakes to provide to the hirer seating arrangement, risk-free journey and safe transportation of his belongings. The definition of the term "service" clearly refers to such provisions of facility in connection with his journey not only in the compartments of the train but also on the platform, the access whereto is legally permissible after the hiring of the services for consideration either through purchase of a ticket for undertaking the journey or for visit to the platform. The provision of space for standing or sitting at the platform and availability of free drinking water and other like facilities are very much included in the definition of the term "service" as given in the Act. Any fault, imperfection or shortcoming in the quality, nature and manner of performance which is required to be maintained by the Railway Administration by or under the provisions of the Railways Act and rules made, instructions issued and directions given thereunder and are in force at the relevant time or has been undertaken to be performed by them in pursuance of a contract or otherwise in relation to the journey by train by the passengers would fall within the ambit of the term "deficiency", as defined in Section 2(1)(g) of the Act. Once it is noticed that deceased Raju had hired the services of the O.Ps. by purchase of a railway ticket for undertaking journey by train from Bandikui Railway Station to Jaipur Railway Station and in order to avail of such contracted services he was to wait for the arrival of the train at the Platform No. 1, and provision for facility of free drinking water at the hydrants at that platform had been made by the Railway Administration, it was for the O.Ps. to have provided such facility to him free from any fault, imperfection, shortcoming or inadequancy in quality, nature and manner. In order to provide such facility of drinking water, the O.Ps. were required to maintain the hydrants as per provisions of the Railways Act and the rules made, instructions issued and directions given thereunder from time to time. The fall of the wall of the hydrant on Raju, when he was drinking water thereat, loudly speaks of the fault, imperfection, shortcoming or inadequancy in the quality, nature and manner of performance of the services by the O.Ps. promised by them to be rendered to Raju as per provisions of the Railways Act.

It was then urged by the O.Ps. that the hydrant was still, under construction and a notice board to that effect had also been placed at the platform and that if Raju had acted in disobedience of the instruction given on the notice board, it was his own fault and the O.Ps. cannot be held liable for his negligent or faulty act. This argument is not only after-thought but also finds no support either from any fact established on record or from any circumstance attending upon the unfortunate incident.

AS stated earlier, the incident had taken place at about 9.30 p.m. on 2.8.1999. By 9.45 p.m. the GRP at Bandikui had taken cognizance of incident, written the report and prepared the panchnama. Photographs of the place of occurrence were also taken at that time. In none of these documents no reference to any notice board, as was alleged by the O.Ps. to have been placed either on the hydrant and close to it, has been made. The photographs do not show the presence of the so-called notice board. In fact the version regarding placement of notice board on or near the hydrant had been given to strengthen the version that the hydrant was still under construction and a water supply connection thereat had not been provided by that time. This version is supported with no evidence at all. The O.Ps. did not disclose as to when the hydrant had been completely constructed and the water supply facility was provided to it. No report regarding its inspection by the O.Ps. or their engineers at under construction stage was on record. The Railway Administration has its own Construction Department and water supply system. All the relevant documents, which could have thrown light on the truth in the version of the O.Ps., if any, were in possession of the O.Ps. But none was brought on record and no plausible explanation for their non-production was given.

ABOVE all, even if it be assumed for arguments'' sake that the hydrant was still under construction and was not opened for use by the travelling public, it was for the O.Ps. to see that no passenger goes to the hydrant. For that purpose, it would have enclosed the minimum space around it by placing blockade, encircling it with ropes or wires and deputing some person to see that no passenger goes there and cause damage either to the alleged under construction hydrant or to himself. We thus find no force in such submission of the O.Ps. It was also urged in the same continuation that four or five passengers including deceased Raju, had made themselves seated on the wall of the water collecting tray of the hydrant and their cumulative weight on the wall, which was without any support under it, caused the fall of the hydrant and its wall and for that the O.Ps. cannot be blamed. We find no force in this argument. In support of their above version reliance was placed by the O.Ps. on the affidavits of S/Shri Ravi Mohan Sharma, Senior Divisional Engineer (East), Western Railways, Mahender Kumar Sharma, Beldar, Krishna Nand Sharma, Nanag Ram, Banwari Lal, Inspector Construction, Vinod Kumar, Contractor. Out of these deponents, S/Shri Mahender Kumar Sharma, Krishna Kumar Sharma and Nanag Ram have claimed themselves to be the eye-witnesses of the occurrence. The first two claimed to have gone to Platform No. 1 on that day either to see-off or to receive their relatives. Neither of them could produce even the platform ticket of that date to support their version. Nanag Ram claimed to be visiting the platform No. 1 too often in connection to go to Phulera Railway Station to supervise his construction work there. He appears to have come forward to oblige Vinod Kumar, the Contractor of the guilty hydrant and other officers of the Railway Administration responsible to supervise construction work of the Railways. They came forward as late as in the month of July, 2001 to lend support to the palpably false version and culpably negligent conduct of the O.Ps.

AS against the above evidence produced by the O.Ps., Roshan Coolie who was examined by GRP soon after the occurrence in the course of proceedings under Section 174 of Cr.P.C. and Kailash Chand Sharma, a trolly vendor at Railway Station, Bandikui, who was examined under Section 161 of Cr.P.C. in the course of investigation of Crime No. 50/99 under Sections 288, 304A, IPC. GRP Bandikui, had stated in their respective statements that they were very much present at Railway Platform No. 1 at 9.30 p.m. on 2.8.1999 and then had been that as soon as a boy had pushed the water-tap at the hydrant near the Railway Over-bridge, the hydrant had fallen upon him and they and other four-five persons pulled out the injured boy from under the fallen hydrant. Their version finds support from the facts found on the spot and as are gathered from a bare look at the photographs of the injured Raju and the objects surrounding his dead body.

ON the basis of our appreciation of the evidence produced by the parties, we have not the least hesitation in holding that the O.Ps. were guilty of gross negligence in maintaining the hydrant and has thus rendered deficient service to the deceased Raju. It was further urged by the learned Counsel for the O.Ps. that the fall of the hydrant has been attributed to the use of sub-standard raw material and poor quality of masonary work and such facts can be established on the basis of detailed and exhaustive enquiry necessitating a lot of scientific and technical evidence to establish their existence which can be done only by the Civil Courts in a regular way and not by the Redressal Agencies in a summary way within their limited jurisdiction under the Consumer Protection Act, 1986. This argument too is totally misconceived in the facts and circumstances of the instant case.

It is required to be noted that the instant case is essentially a case of "hiring or availing of service for consideration" attracting Clause (ii) of Section 2(1)(d) and not of "buying of goods for consideration" so as to fall within the purview of Clause (i) of Section 2(1)(d) of the Act. That being the nature of the complaint and the relief claimed therein, the provisions contained in Sections 2(1)(c)(iii) and 2(1)(c)(vi) read with the definition of the term "deficiency" in Section 2(1)(g) and the definition of "service" in Section 2(1)(o) and not the provisions contained in Section 2(1)(c)(ii) and Section 2(1)(c)(v) read with the definition of the term "defect" in Section 2(1)(f) of the Act, would stand attracted for application. In this position of facts, the scope of enquiry into the allegations made by the complainants against the O.Ps. stands necessarily restricted to the extent of ascertaining the "deficiency" in "service" rendered or promised to be rendered by them for consideration to the deceased Raju. Ascertainment of that fact may very well be made by this Redressal Agency within its limited summary jurisdiction under the C.P. Act on the basis of the affidavits and other documentary evidence as adduced by the parties in support of their respective versions of the case. No enquiry into the fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under the contract, express or implied, or as is claimed by the O.Ps. in any manner whatsoever in relation to any goods and the masonary work, namely the raw material used and masonary skill applied in the construction of the hydrant, is to be done in this case in order to grant or refuse to grant the relief claimed by the complainants in their complaint.

FINALLY it was urged that the express provisions contained in Sections 13 and 15 of the Railway Claims Act, 1987 clearly bar the jurisdiction of this Commission to entertain, try and decide the present complaint. In our opinion, this argument too is quite misconceived and proceeds on wrong interpretation of the above provisions of the Railway Claims Tribunal Act, 1987 and Section 3 of the Consumer Protection Act, 1986. In order to appreciate the merits of the arguments advanced by the learned Counsel for the O.Ps., it would be necessary to reproduce the relevant provisions in the Railway Claims Tribunal Act, 1987, Railways Act, 1989, and Consumer Protection Act, 1986. Railway Claims Tribunal Act, 1987 "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 Administration as carriers under Chapter VII of the Railways Act in respect of claims for - (i) compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to a Railway Administration for carriage by railway; (ii) compensation payable under Section 82A 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."

"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."

Railways Act, 1989 "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 railway 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 train 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 entitled 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 dieing 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."

"124A. 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 purposes 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 resulted from the accident, or the untoward incident by any dependent 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."

Consumer Protection Act, 1986 "3. Act not in derogation of any other law.-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."

ON a close and careful study of the above provisions in the light of the decision of the Hon''ble National Commission in the case of Union of India v. Nathumal Hansaria, I (1997) CPJ 20 (NC)=(1997) 1 CPC 420, we are unable to agree with the learned Counsel for the O.Ps. that our jurisdiction to maintain, try and decide this complaint stands barred by Section 15 read with Section 13(1) of the Railway Claims Tribunal Act, 1987 (RCT Act, 1987). Section 82A of the Railways Act, spoken of in Section 13(1) of the RCT Act, and the rules made thereunder provide for compensation for "Railway Accidents" and not for "accidental deaths" of the nature met by deceased Raju in this case. ON reading the definition of "accident", as given in Rule 2 of the Railway Accidents Compensation Rules, 1990 and as explained in Section 124 of the Railways Act, it is amply clear that in order to successfully apply the exclusionary provisions of Section 15 read with Section 13(1) of the RCT Act a passenger should sustain injury or suffer loss as a result of an accident, occurring in the course of working of a Railway, either by collision between trains of which one is a train carrying passengers or by the derailment of or other accident to a train or any part of a train carrying passengers. Injury to deceased Raju were not, admittedly, caused in the course of working of a Railway and in the manner talked of by Section 124 of the Railways Act. Nor the injuries to him were caused in an "untoward incident" as defined in Section 123 of the Railways Act, reproduced above. Injuries to deceased Raju were admittedly caused as a result of fall of the wall of the hydrant on Platform No. 1 on his head and other parts of his body. To such set of facts the provisions contained in Section 15 read with Section 13(1) of the RCT Act do not obviously stand attracted so as to oust the jurisdiction of this Commission to maintain, try and decide the present complaint. In arriving at such conclusion, we are guided by the observations made by the Hon''ble National Commission in the case of Nathumal Hansaria (supra), and V.K. Upadhyay v. General Manager, Central Railways, III (1997) CPJ 97 (NC)=1997 (2) CPC 490, and borrow with respect the reasonings adopted by the M.P. State Commission in the cases of General Manager, Central Railways v. S.S. Pillai, 2001(2) CPC 383, and Ramesh Chand Bhatnagar v. Union of India, 2000 (2) CON.LT 673. Before proceeding further, we would like to observe that the facts and circumstances of this case and the overwhelming positive evidence placed by the complainants on our record irresistibly and conclusively established the relationship of "Consumer" and "provider of service for consideration" between deceased Raju and the O.Ps. respectively and prove gross negligence and culpable degree of "deficiency" in rendering "service" to the deceased by the O.Ps. Had that been not so, we would have, in the context of the tragic death of a young passenger and on reading the legislative intention expressed in the language of Section 124 of the Railways Act, considered to invoke the application of the doctrine of res ipsa loquitur for the better protection of the interests of consumers, availing the services of the O.Ps. Happily, the false and frivolous pleas raised by the O.Ps. to cover up their culpable negligence in maintaining the hydrant on Platform No. 1, at Railway Station, Bandikui and thus rendering most deficient service to the travelling public in general and to the deceased Raju in particular could not at all demolish the trustworthy and reliable positive evidence produced by the complainants in this case. This factual and legal position left no occasion for us for invoking the above doctrine for the decision of this complaint. Consequently, on the basis of our appreciation of the evidence on our record, we hold that the O.Ps. rendered deficient services to the deceased Raju. Coming now to the grant of relief to the complainants in this case, we find that they have claimed a total sum of Rs. 15,00,000/- as per details given in Annexure 16. Such details show that the complainants have claimed Rs. 4.00 lakhs as compensation for mental shock and endless sufferings to them on account of unnatural and premature death of their son, a sum of Rs. 10,89,000/- for loss of earnings of the deceased which he was likely to spend on them in their old age, Rs. 3,000/- as expenditure incurred by them to take the dead body of the deceased from Bandikui to Kherli and Rs. 8,000/- as expenses incurred on religious and social ceremonies to keep the soul of the deceased in eternal peace.

LOSS of a human being as a member of society and the shock and endless sufferings, caused by the sudden and untimely death of a young man to his nears and dears can hardly be measured and compensated in terms of money. Even then Courts have to evaluate such loss in order to compensate the kith and kins of the departed mortal. In order to estimate the compensation the facts and circumstances, of a particular case have to be taken into consideration. In this behalf, we find that deceased Raju was a young unmarried boy of about 26 years of age trying to establish himself in a good job. Annexure 15 in his admission card issued by the Rajasthan Public Service Commission admitting him provisionally to the State Administrative Service Examination 1999. It is stated by the complainants that on the fateful day the deceased was going to Jaipur in order to gather knowledge about the private institutes, preparing the students for entry into the aforesaid examination. That may be so. But he was still unsettled in life, though is claimed to be drawing handsome salary from M/s. American Remedies, M/s. Sun Pharma, and M/s. Universal Medicare. There is, however, no supporting evidence in that behalf. The family, deceased Raju comes from, appears to be a middle class business family having two of the four sons mentally retarded. The financial status of this family is not known from the material on record.

TAKING into consideration all the above facts about the deceased and his family and keeping in mind the relevant provisions of the Railway Accidents Compensation Rules, 1990 along with the decline recorded by the purchasing power of our currency over the years as also the approach adopted by the Hon''ble National Commission in the case of Nathumal Hansaria (supra), we award to the complainants a sum of Rs. 3 lakhs as compensation for the death of deceased Raju, Rs. 2 lakhs as compensation for mental agony, shock and sufferings and loss of financial support to the complainants in their old age, Rs. 10,000/- on account of expenses incurred by the complainants on taking the dead body of the deceased Raju from Bandikui to Kherli and other expenses incurred in connection with socio-religious rituals and ceremonies in connection with his death and Rs. 5,000/- as cost of litigation. The aforesaid amount of Rs. 5,15,000/- shall be paid to the complainants within a period of two months from the date of receipt of a copy of this order by them failing which the same shall carry interest at the rate of 10 per cent per annum from the date of this order. In this first instance, the aforesaid amount of Rs. 5.15 lakhs shall be paid to the complainants by the Railway Administration, Western Railways, Church Gate, Mumbai. Such Railway Administration shall, however, realise such amount with or without further amounts incurred in connection with this avoidable litigation, from the erring officials/servants/agents including the Contractors who were responsible for construction, supervision of construction and maintenance of the hydrant in question, after holding such enquiry into their conduct in the discharge of their official/non-official duties as is deemed proper by the Administration. The complaint stands allowed accordingly to the extent and in the manner stated hereinabove. Complaint allowed.