NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION     NO. 602 OF 2013 (From the Order dated 09.11.2012 in Appeal No. 1460/2011 of  U.P. State Consumer Disputes Redressal Commission, Lucknow)With IA/1062/2013 (Stay)  Union of India Through its General Manager North Eastern Railway Gorakhpur

Petitioner  VersusDr. (Smt.) Shobha Agarwal W/o Dr. M.C. Agarwal Head of the Department T.B. & Chest B.R.D. Medical College Gorakhpur

Respondent  BEFORE:                   HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

       HON’BLE MR. SURESH CHANDRA, MEMBER 

For the Petitioner                           :              Mr. Rajeshwar Singh, Advocate                                                                           For the Respondent                       :             Mr. Ajit Sharam, Advocate Pronounced on :       22 nd     July, 2013   O R D E R 

 PER SURESH CHANDA, MEMBER 

This revision petition is directed against the order dated 9.11.2012 passed by the U.P.

State Consumer Disputes Redressal Commission, Lucknow in appeal No.1460 of 2011 by which

the State Commission upheld the order dated 14.7.2011 passed by the District Forum, Gorakhpur

in complaint case No.612 of 1997 and dismissed the appeal filed by the petitioner. The petitioner

was the OP before the District Forum and the respondent was the original complainant.

2.         The factual matrix of this case are that on 10.10.1996 the complainant/respondent along

with her daughter was travelling in a AC second class sleeper with reserved berth Nos.35 & 36

from Gorakhpur to Beena by 1016 UP Kushinagar Express. It is alleged that there was lot of

disarrangement in the reserved AC coach and some suspected person was seen snooping here

and there about which a complaint was made to the ticket checker but no action was taken by

him. The same suspected person was again seen in reserved coach at about 2’O clock in the

night. When the complainant woke up at 7’O clock in the morning, she found that her grey

colour suitcase which had been tied under the berth with the help of chain and lock, was missing

from there. As per the allegation in the complaint, the said suitcase had been stolen by cutting the

chain and lock. Information about the said incident was given to the ticket checker who after

some initial reluctance received the same after being forced to do so by certain co-passengers but

the ticket checker refused to receive the list of the articles. The complainant brought the incident

to the notice of the Railway Department and Railway Minister by writing letters to the

authorities and it appears that after about one year, the railways lodged an FIR in regard to this

incident sometime in the year 1987. Alleging negligence on the part of the OP, the complainant

lodged a consumer complaint before the District Forum praying for compensation of Rs.1.5

lakhs along with interest @ 12% w.e.f. 10.10.1996, i.e., the date of loss of the valuables along

with Rs.30,000/- by way of compensation on account of mental agony. On notice, the complaint

was resisted by the OP and in the written statement filed by the OP, it denied any negligence on

its part and also submitted that railway administration is not liable for the goods which were not

booked with them. It also raised the question of jurisdiction of the District Forum in the matter.

3.         On hearing the parties and appreciating the evidence placed before it, the District Forum

allowed the complaint vide its order dated 14.7.2011 in terms of the following directions:-

“The present of the complainant is accepted against the opposite party. It has been directed to the respondent to pay Rs.1,50,000/- along with interest to the complainant from the date of filing of the application / complaint from the date of filing of the application/complaint till its realization. Besides this, the opposite party to pay Rs.50,000/- towards the compensation account of mental and physical agony and Rs.1000/- towards the costs of the litigation and the said amount is to be given in the shape of demand draft before this forum which could be given to the complainant within one month from the date of passing of the said order. In case the opposite party failed to pay the same within stipulated period of one month, then the same will be recovered from the opposite party as per the law.”

4.         Aggrieved by the aforesaid order of the District Forum, the petitioner carried the same

before the State Commission by filing an appeal against it but the same was dismissed by the

State Commission vide its impugned order which is now under challenge through the present

revision petition.

5.         We have heard learned counsel Mr. Rajeshwar Singh, Advocate  for the petitioner and

learned Mr. Ajit Sharma, Advocate for the respondent. Learned counsel for the petitioner has

submitted that there was no negligence on the part of the railway administration and unless the

goods in question are booked with the railways, the railway administration under the provisions

of Railway Act are not liable to pay the compensation. He further submitted that the luggage in

question being carried on by the complainant along with her daughter, it was under her custody

and it was for her to take care of that. The onus of proof regarding negligence on the part of the

railway staff lies on the complainant which she has failed to discharge.

6.         Learned counsel has also relied on the provisions of sections 97 and 100 of the Railways

Act, 1989 under which the railways cannot be held liable for compensation in this case and the

State Commission erred in wrongly appreciating these provisions. Another contention raised by

learned counsel was that section 15 of the Railway Claims Tribunal Act, 1987 bars the

jurisdiction of the consumer Fora  to deal with this case. In view of these aspects, learned

counsel submitted that orders of the Fora  below cannot be sustained in the eye of law and are

liable to be set aside. On the other hand, learned counsel for the respondent submitted that the

impugned order is a well-reasoned order passed in accordance with the provisions of law and the

same deserved to be maintained and the revision petition be dismissed.

7.         We have given our anxious thought to the submissions made by the parties. We may note

that the broad facts of this case not being under dispute, the two Fora below have returned their

concurrent finding in respect of the allegation of negligence on the part of the petitioner based on

the facts placed before them. The order of the State Commission is in line with the judgements of

this Commission in similar cases including those of Union of India & Ors. Vs. J.S. Kunwar [1

2010 CPJ 90 (NC)]   and Union of India &     Ors. Vs. Sanjiv Dilsukhraj Dave & Anr. [2003 CTJ

196 (CP) (NCDRC) and Mrs. Kanthimathi & Anr. Vs. Govt. of India where the liability of the

railways in such cases has already been examined established in such cases in the light of the

provisions of sections 97 and 100 of the Railways Act.  We do not wish to reiterate here the

details of these cases except to refer to the observations of this Commission in the case of Sanjiv

Dilsukhraj Dave & Anr. (supra) and the same are reproduced thus:-

“A major responsibility cast on the TTE in addition to examining the

tickets is that of ensuring that no intruders enter the reserved

compartments…………..This is certainly a gross dereliction of duty which

resulted in deficiency in service to the Respondents.

The price difference between the unreserved ticket and a reserved ticket is

quite high and the traveling public who buy a reserved ticket would

expect that they can enjoy the train journey with a certain minimum

amount of security and safety.

………. …… One has to presume that passenger would take reasonable

care of his luggage. But, he cannot be expected to take measures against

intruders getting easily into reserved compartments and running away

with goods, when the railway administration is charged with the

responsibility to prevent such unauthorized entry. We have entered the

21st century and we cannot carry on our daily life in the same age old

fashion with bearing brunt of indifferent service provided by public

authorities like Railways. People expect in the 21st century a modicum of

efficient and reliable service, which provides at least safety of person and

property while traveling in reserved compartments”.

 

8.         Undisputedly, the complainant and her daughter were travelling  in a reserved coach and

it was the duty of the TTE to ensure that no intruders entered the reserved compartment. Since

apparently there was a failure on the part of the TTE to prevent entry of unauthorized person in

the coach during the night, the Fora below were right in holding the petitioner liable for

deficiency in service to the respondent in this regard. So far as the applicability of section 15 of

the Railway Claims Tribunal Act, 1987 is concerned,  we cannot agree with the contention of

learned counsel because this section bars jurisdiction of the other courts only “in relation to the

matters referred to in sub-sections (1) and (1A) of section 13”. Section 13 is reproduced 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

Railway 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, deterioration or non-delivery

of animals or good entrusted to a railway administration for carriage by

railway ;

(ii) compensation payable under Sec. 82-A 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.

[(1-A) The Claims Tribunal shall also exercise, on and from the date of

commencement of the provisions of Sec.124-A 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 Sec. 124-A

of the said Act or the Rules made thereunder.]

(2) The provision of the [Railways Act, 1989] and the rules made thereunder

shall, so far as may be, be applicable for inquiring into or determining any

claims by the Claims Tribunal under this Act.”

9.         Plain reading of section 13 indicates that the case of the respondent does not fall under

any of the categories mentioned in the section. In view of this, the jurisdiction of the Consumer

Fora cannot be barred by virtue of the provisions of section 15.

10.       In view of the foregoing discussion, we do not find any infirmity or jurisdictional error

with the concurrent finding of the Fora below which could justify our intervention under section

21(b) of the Consumer Protection Act, 1986. The scope of powers of this Commission while

exercising its revisional jurisdiction under section 21(b) of the Consumer Protection Act, 1986

being very limited, we do not find any justification to interfere with the impugned order. We,

therefore, dismiss the revision petition in limine with no order as to costs.

……………Sd/-……..………..(AJIT BHARIHOKE, J.)PRESIDING MEMBER                                                             ……………Sd/-….……………(SURESH CHANDRA)MEMBERSS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

                                 Revision Petition no. 628 of 2013(Against the order dated 15.10.2012 in Appeal nos. 2166 of 2010 and 72 of 2011 of the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal)  Union of India Through the General Manager East Central Railway, Patna Station Manager Muzaffarpur Railway Station Bihar                                                                                North Central Railway Through Station Manager Railway Station Gwalior

Petitioner(s)  Vs Smt Kavita Madan Wife of Shri Ranjan Madan H – 9, Govind Puri Post Office R K Puram Gwalior

Respondent  Before: HON’BLE MR JUSTICE V B GUPTA            PRESIDING MEMBERHON’BLE MRS REKHA GUPTA                   MEMBER For the Petitioner (s)                          Ms Rekha Aggarwal, Advocate                                                          Pronounced   on     16 th   August 2013 ORDER REKHA GUPTA

                Revision petition has been filed against the order dated 15th October 2012 passed by the Madhya Pradesh State Consumer Disputes RedressalCommission, Bhopal in appeal nos. 72 of 2011 and 2166 of 2010 filed by the respondent whereby both the appeals were dismissed.

        The brief facts of the case as given by the respondent/complainant are that the respondent has gone to Muzaffarnagar along with her two daughtersPrachi and Bhagi and father-in-law Kishan Lal Madan to attend a wedding ceremony. The respondent purchased tickets on 06.02.2008 from petitioner no. 3 for the return journey from Muzaffarpur on 18.02.2008 in train no. 1123. She got reserved tickets nos. 49, 50, 51 and 52 for herself and her family.

        On 18.02.2008 respondent went to Muzaffarpur Railway Station along with her two daughters and father-in-law for the return journey by train no. 1123 in coach no. S 3 on reserved seats no. 49 to 52 and the journey was to start at 05.00 p m.

        When the train started from Muzaffarpur and reached Sonepur Railway Station at about 02.00 a m most of the passengers were asleep. At this time 5-6 boys boarded the train and after sometime they broke the chains which were attached to the suit cases and they collected the suit cases at the gate of the train. At this time, the respondent woke up and raised a cry and other passengers also woke up. At this the boys threw the suit cases from the running train and when the train slowed down they jumped out of the train. Her father-in-law gave a complaint of this incident to the guard at Chapra Railway Station. The guard told him to inform the TT. But there was no TT available in the train. Her father-in-law tried to lodge the complaint at Chapra Junction, Lucknow junction and Bara Banki station but as the stoppage time was less and they had children with them, they could not lodge the complaint.

Out of the eight suit cases stolen by the boys, the respondent had three suit cases of VIP make in blue colour. One was of 36”, the second was medium and the third of small size. In the big suit cases there were five suits, six sarees and woolens as well as gold jewellary which included 1 gold necklace, 2 rings, 2 tops, 2 ear rings and four bangles weighing about 10 tolas. The second

suit case contained 5 sets each of cloths of the 2 children, 4 sweaters. The third suit case contained 4 trousers, 4 shirts, 1 coat other clothes and the passbook of saving account no. 10504757769 of State Bank of India, Murrar. The total value of the goods was about Rs. 1.00 lakh.

        When the train reached Gwalior on 20.02.2008, the respondent’s father-in-law gave a written complaint to the police station GRP at Gwalior. When no action was taken on this complaint, then her father-in-law wrote letters dated 02.04.2008, 10/11.02.2009 by registered post to Mazaffarpur, Chapra, SonepurStation and on 11.11.2009 but the petitioners did not give any suitable reply. On 30.04.2008, the Commissioner of Police, Railways Muzaffarpur informed that due to lack of any evidence the police had filed a final closure report on the complaint.

        The petitioner/ opposite party in their written statement have denied the entire complaint stating that the alleged incident has been concocted to make a legal issue and gain unlawful advantage. It is denied that any thief had entered the Barauni Gwalior mail no. 1123 on 08.02.2008. No information of any such incident has been received from any other passenger. It is also denied that there was no TT or guard in the train. The TT was present throughout the journey and checking the tickets of the passengers from time to time. It is also denied that due to less stoppage time of the train, the respondent could not make report of the alleged incident as the complaint book available in the coach itself in which any passenger can note down his complaint.

        The District Consumer Disputes Redressal Forum, Gwalior (MP) vide order dated 17.08.2010, while allowing the complaint ordered that “the opposite party is directed to pay Rs.50,000/- within 30 days to the complainant failing which they will have to pay interest @ 9% per annum. The opposite party will also pay Rs.1,000/- towards cost of the expenses incurred. The complaint is closed”.

        Aggrieved by the order of the District Forum, two appeals were filed before the State Commission. Appeal no. 2166 of 2010 was filed by respondent/complainant for enhancement and the second appeal no. 72 of 2011 was filed by the petitioner for setting aside the order of the District Forum. The State Commission “dismissed both the appeals with no order as to costs”.

        Hence, the present revision petition.

        Along with the revision petition, the petitioner has filed an application for condonation of delay of 29 days. As per the application, the certified copy of the impugned order was delivered by the State Commission on 22.10.2012. Thereafter it took some time for the petitioners to engage a lawyer in Delhi to file the revision petition. Moreover all the documents are in vernacular and it took considerable time to translate the same in English. All this exercise has taken some time and there was some unavoidable delay beyond their control.

        We have heard the learned counsel for the petitioner and have gone through the records of the case. No cogent reasons have been given either by the counsel for the petitioner or in the application for condonation of delay to explain and justify the day to day delay of 29 days.

It is well settled that “sufficient cause” for condoning the delay in each case is a question of fact:

              In Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed;

 “It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in

the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.” Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that; 

          “There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

           In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108, it has been observed: “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

                    Recently, Hon’ble Supreme Court in Post Master General and others vs. Living Media

India Ltd. and another (2012) 3 Supreme Court Cases 563 has held; 

“After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;

 “It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to

courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”

           The Court further observed; 

“It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.

 In the light of the above discussion, the appeals fail and are dismissed on the

ground of delay. No order as to costs”. 

Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case. 

Even, after getting two adverse findings, petitioners have chosen not to settle the claim of the respondent but have dragged him to the highest Fora under the Act. It is not that every order passed by Fora below is to be challenged by a litigant even when the same are based on sound reasoning. It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so. Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.

        The Apex Court, in the case State Bank of India vs B S Agricultural Industries   II (2009) SLT – 793 = (2009) 5 SCC 121 have held as under:

“As a matter of law, the Consumer Forum must deal with the complainant on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the Consumer Forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet the Consumer Forum decided the complaint on merits, the Forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.”

        The present case is fully covered under the case laws cited above Supra.

        The petitioners have failed to produce any detailed reasons to explain the delay of 29 days.

        Accordingly, no sufficient grounds are made out for condonation of delay of 29 days in filing the present revision petition. The application for condonationof delay under these circumstances is not maintainable and the present revision petition being barred by limitation is hereby dismissed with cost of Rs.10,000/- (Rupees ten thousand only).

        Petitioner is directed to pay a sum of Rs.5,000/- by way of demand draft directly in the name of respondent and the balance amount of Rs.5,000/- be deposit by way of demand draft in the name of “Consumer Legal Aid Account” of this Commission within four weeks from today. In case the petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% per annum till its realisation.

        List for compliance on 20th September 2013.

Sd/- [ V B Gupta, J.]

 Sd/- [Rekha Gupta]Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIORIGINAL PETITION NO.   72 OF 2001

 

Smt. Nirmal Devi Chopra W/o Late Sh.R.C.Chopra B-28, Lajpat Nagar-III New Delhi

…  Complainant

Versus 1. Union of India Through Secretary, Railway Board (Rail Mantralay) Raisina Road, New Delhi

 2. General Manager, Northern Railway Baroda House, New Delhi 

3. Divisional Railway Manager Northern Railway, Delhi Division State Entry Road, New Delhi 

4. Divisional Railway Manager Northern Railway, Muradabad, U.P. 

5. Divisional Railway Manager Northern Railway, Lucknow Hazarat Ganj, Lucknow, U.P.

…  Opposite Parties

BEFORE:

    HON’BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER    HON’BLE DR. S.M. KANTIKAR, MEMBER 

For the Complainant   : Mr. M.L.Sharma, Advocate

For the Opp, Parties   : Mr. Apurb  Lal & Mr.Niraj Anand, Advocates

PRONOUNCED ON_16.09.2013

O R D E RJUSTICE J.M. MALIK 

1.      Smt. Nirmal Devi Chopra, the complainant has claimed a sum of Rs.35.00 lakhs for the

deprivation  of the income that R.C.Chopra, her deceased husband,  would  have  earned  during

his  balance life span, Rs.10,00,000/- for widowhood and lack of consortium suffered by the

complainant, due to being widowed prematurely and Rs. 5,00,000/- as compensation for the

death and bereavement suffered by the four daughters and their families.

 

2.      Sh.R.C.Chopra, died  while he  was  travelling  in Lucknow Mail, AC-III Tier,  in the night

falling between 21st -22nd December, 1998, due to deficiency  in the service  and  for non-

compliance of the rules on the part of the administration and employees of the Northern

Railways, the Doctors and  Staff of  SuchetaKriplani  Hospital, New Delhi. He

was allotted  berth  No.15  by the Train Conductor/Coach TTE, Lucknow.  Due to fog, the train

was running late.  On 23.12.1998, at about  7.30AM, it transpired that an unknown passenger

(Late Sh.R.C.Chopra), was admitted in an unconscious condition in the above said hospital at

11.25 hrs by Government  Railway  Police, New Delhi Station on 22.12.1998.  His son-in-

law, identified him.  Sh.R.C.Chopra, passed away, on 24.12.1998 at about

10.50 hrs, without  regaining consciousness.  The cause of his death was shown as  (i) unknown

poisoning (ii) pontine Haemorage.  The patient was brought by the police from the Railway

Station.  The autopsy report mentions  the  cause of  death  due to Nitrazepam and acute  adverse

effect thereof  happening subsequently.     Subsequently,  it also came to light

that R.C.Chopra was looted  off  all his cash and  Demand-drafts.  His briefcase,  alongwith suit-

case,  was delivered  in an  open condition to the family by Government Railway Police, New

Delhi.  The  brief-case contained few documents only.  

 

3.      The  main grouse of the complainant is that  no medical aid was given to the patient, on the

way.  The  train  halted  at Ghaziabad Station for over one hour, for this purpose and no  steps

were taken.  Memo was given but Railway  DMO or any other  Doctor did not attend the

patient.  Improper  and inadequate medical  aid was given at the Sucheta Kriplani Hospital, New

Delhi.  It  also  transpired  that  one,  Mr. H.M.Behal, along-with his wife and son was to travel

fromLucknow to Delhi.  He held reserved  accommodation for  three persons.  However, due to

thick and

foggy  weather, he  abandoned his plan to travel by this train and got  refund  for  his

tickets.  Their  tickets  were  treated  as ‘non-issued’   by the Reservation Office at Lucknow and

were re-sold  to some unauthorized persons, perhaps those persons who were travelling, robbed

off R.C.Chopra of his cash and demand-drafts.  Those three unauthorized persons travelled in the

train,  while working in cahoots  with the reservation staff and the TTE. The said miscreants

gave tea to the deceased,  after making friendship with him.  The tea was heavily laced

with Nitrazepam, which induced deep sleep to the victim.  No medical assistance was given to

the patient.  After their arrival, in New Delhi, the TTE  and the Coach Attendant left the patient

in lurch.  They did not swing into action. No  ambulance or  doctors were arranged by the

Railway authorities at the New Delhi Railway Station.   The empty rake of the train

was shunted  into  the  yard and  washing  lines from where Sh.Chopra was carried in a luggage

trolley to the Sucheta Kriplani Hospital by the GRP,  New Delhi at 11.30

hrs.  The Railway authorities  did  not  make  any attempt to identify those three

miscreants.  Their identity was never established. 

4.      The  deceased  was  an  affluent and influential person and his relatives would have taken

him to a superior medical hospital, if they were intimated in

time.  Immediate  medical  help  would have saved the life of the deceased.  It is alleged that the

Railway authorities washed off their hands from the medical emergency.  The deceased was aged

about 65 years and was physically very active and mentally alert, who,

could have  lived upto age of 85 years.  His grand-father lived upto the age of 95

years.  The deceased  was  having high income.  His declared  income  was

Rs.6,66,790/-,  he   was paying income tax of Rs.1,37,069/-  for the year 1998-

99.  The deceased  had  declared an  income  of  Rs.6,00,000/-  in the year 1998, which was, in

addition to his declared income in the regular Income Tax Returns. 

DEFENCE :

5.      The Opposite Parties have enumerated the following defences in their written

statement.  The Railway Claims Tribunal Act, through its Sections 13,15 and 28, strikes a snap

over the jurisdiction of other Tribunals.  The Railway Claims Tribunal  has got the executive

jurisdiction to try this compensation  case.  In this case, best efforts were made to call

the Railway  Doctors at  Ghaziabad  Railway  Station,  but could not arrange due to short

stoppage.  When the train arrived at New Delhi Railway Station,

the message  was conveyed  to  the police  and  the deceased was immediately taken to the

hospital.  As such, there is no deficiency on the part of the Railways.  A message was sent to the

New Delhi Railway Station that  a passenger  was lying in a coach in an unconscious

condition.  The deceased  was admitted in ICU.  It is

explained  that  the  coach  of  Lucknow  Mail,  wherein  the  deceased  was travelling was

locked  from inside,  as soon as  the train  left  from Lucknow Station  and remained under the

watch and duty of Conductor  and  Attendant,  upto New

Delhi.   Nounauthorized  person  entered the compartment.   The

schedule  stoppage  of  the  train at Ghaziabad Railway Station is for two minutes only

and  during  the stoppage  also, necessary arrangements were made,

for  providing  medical  facility  at Ghaziabad Railway Station

and  New  Railway  Station.   Under  the  said circumstances,  the possibility cannot be ruled

out  that  the deceased might have consumed the Nitrazepam  himself.  It is

stated that  from Ghaziabad, the train arrives at New Delhi,  after about 40 minutes. 

 

6.      Both the  parties have led evidence by way of filing their affidavit.  The complainant has

also filed affidavit of Shri H.M.Behal, which carries infinite value.

 

7.      The principal  argument  advanced  by  the counsel for the OPs was that the

consumer   fora  have  no jurisdiction to try this case.   He submitted   that  thisCommission  can

not arrogate to itself, the powers which do not vest in it.   He has  invited our attention

towards  Sections 13 & 15 of the Railway Claims Tribunal Act,  1987, which are reproduced

hereunder :-

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 Railway 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, deterioration or non-delivery of animals or good entrusted to a railway administration for carriage by railway ;

(ii) compensation payable under Sec. 82-A 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.

[(1-A) The Claims Tribunal shall also exercise, on and from the date of commencement of the provisions of Sec.124-A 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 Sec. 124-A of the said Act or the Rules made thereunder.]

(2) The provision of the [Railways Act, 1989] and the rules made thereunder shall, so far as may be, be applicable for inquiring into or determining any claims by the Claims Tribunal under this Act.

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-sections (1) and 1-A] of Sec.13.

 

8.      He has also cited one authority reported in  Chairman, Thiruvalluvar Transport

Corporation Vs. Consumer Protection Council, AIR 1995 SC 1384.  The relevant para runs

as follows :-

“6. …………The complaint  in the instant case cannot be said to be in relation to any service hired or availed of by the consumer because the injury sustained by the consumer had nothing to do with the service provided or availed of by him but the fatal injury was the direct result of the accident, on account of which, he was thrown out of his seat and dashed against the iron handle of the seat in front of him. We, have, therefore, no manner of doubt that this case squarely fell within the ambit of  section 165 of the 1988 Act and the Claims Tribunal constituted thereunder  for the area in question had jurisdiction to entertain the same.

 

9.      We have  perused  the  above  provisions of  law and the above  said authority.  We

are of  the  considered  view  that  there lies no rub in entertaining  this complaint  because  it

does not fall under Section 13 of the Railway Claims Tribunal Act, 1987.  This case pertains to

the ‘service’ provided by the Railways. Consequently, the arguments advanced  by  counsel  for

OP, have to be  eschewed out  of consideration.

 

10.    Now, we turn to the facts of this case.  The learned counsel for the

complainant   invited our  attention  towards  the affidavit

of  Mr.Hari  Mohan Behal. Mr.H.M. Behal  was to travel in the said train.  We have seen the

reservation chart  for AC-III Tier, which has been placed on the

record.   It clearly  goes  to show  that  R.C.Chopra  was allotted seat      No. 11,

and Mr.H.M.Behal, Mrs.Manju Behal and  Rohit  Behal  were allotted seat Nos. 14, 15 and

16. Mr.H.M.Behal, i.e. Hari  Mohan Behal  has filed an affidavit  which goes to show that he,

along with his wife Smt.Manju Behal and son, Mr.Rohit Behal,  were to travel in this

train.  They  had  confirmed  tickets.  It was further stated on oath that  it  was  height of winter

season and the trains were  notorious  for  late running  due to thick foggy weather.  He further

stated that he cancelled his programme at the last moment  and asked his driver to return the

tickets and obtain the refund.  He  further  stated  that  his driver returned the

tickets  and  obtained  a refund   of  50%  of  the fare paid by him,  as it was a last minute

cancellation.  

 

11.    However, it is surprising to note that in the record of the Railways, it was  argued that all of

them had travelled.  Their seats were not kept vacant, somebody had  travelled, on their

behalf.  The  learned  counsel  for  OPs  did  not  pick up  a conflict with this contention.  They

did not  state  that   Mr.H.M.Behal   and  his   close  relative  had  cancelled  their  seats.   They  

have  made  a  vain  attempt  to  file  frivolous  defence   in support of  their case.

 

12.    The  learned  counsel  for  the complainant  argued that those three  

passengers  must  be miscreants who, after putting the complainant in  an unconscious stage,

robbed off  his valuable  belongings and went away.  He contended that those

persons must  have given  poison to the passenger for which the OP is liable. 

 

13.    The  first  deficiency  is apparent on record.  Three passengers did not travel, but they were

shown to have travelled.  From where, those three persons cropped up, dollops of mystery

surround this case.  No explanation of Conductor, T.T.E. was called.  The attempt was made to

whitewash the truth.

 

14.    However, the other part of the story that the three miscreants came, gave a cup of

tea,  laced  with poison  and robbed off the passenger,  is not worthy of credence.  The possibility

of the passenger committing suicide can not be ruled out.  It is not  this Commission’s  duty to

write definitions on invisible blackboards  with non-existent chalk.  However, the

Conductor and  the Assistant/Attendant,  could not get knowledge about this incident, is the

second deficiency, on their part.  Their  bizarre conduct is unfathomable.

15.    The third deficiency on the part of OP is discernible.  Memo has been  

placed  on  the  record,  which reads as follows :-

“DMO/GZB, NDLS

Through ASM, Mehrauli

Please attend a patient in AC-3 Tier  Coach  No.15535 on Berth No.13 as passenger is serious ill by 4229 UP,  Dt.22.12.98.  Coach position is 13 from Engine.

Sd/-

Shiv Singh

22/12

 

CC:

GZB

 

Received by

ASM, Inform to NDLS & CHC

At 8.15A.M”.

 

 

16.    The counsel for the OPs vehemently argued that the

Railway administration  was conscious  about the serious condition of the

deceased.  The  saidMemo was sent from Mehrauli.  Best efforts were made to call  the

Doctors  at  the  Railway Station, Ghaziabad, but could not be arranged due to short stoppage of

the train, i.e., for two minutes.  Consequently,  message  was  conveyed  to  the New Delhi

Railway Station & GRP.  After arrival  at New Delhi, the complainant was admitted in the well-

known hospital, i.e., Sucheta  Kriplani Hospital  by GRP staff. 

He received the best treatment in ICU.

 

17.    This  argument  is a strawman,  intended  to divert  our  intention  from  the main  issues.  It

came to light  that a patient  was  lying  sick, at about  7.25 AM/8.25AM.  He could not get any

medical aid till 11.25AM.   This is a case of negligence, inaction and passivity on the part of the

Railway authorities.  Para3.35 of  the  Indian  Railways  Commercial Manual, Vol.I, enjoins

upon  the  Railways  to  secure  medical  assistance to  the  sick

passengers.  Noexplanation  is  forthcoming, as to  why did the train not halt  at

Ghaziabad?  Had  the medical aid been given to the patient  at  Ghaziabad  Station itself, it could

have  saved  the precious life of the deceased.  It is well said that   “A Stitch in

Time,  Saves Nine”.  What are  the duties  of  Train  Conductor/ Coach  Attendant and the

TTE?.   All of them  were  sleeping  and  did not do the needful.   Where was the

Doctor?  Negligence is rust of soul that corrodes through all her best resolves.  The

Railway Department  itself  is trying to  defend their own

employees.  The names  of concerned  employees,  did not  find  mention in  the written

statement.   As  a matter of  fact,  those  were the persons,  liable for the  death

of  late Sh.R.C.Chopra.  The  compensation  should have been recovered from them.  It is

surprising to note that the Railway  Department   commits  so  many  mistakes  as well  as  the

mistakes  of  defending  their   wrong  officers. These  persons  are  also  responsible   for  giving

the seats of  Mr.H.M.Behal  and  his family  members,  illegally  and unauthorisedly  to the three

unknown persons,  for  earning some illegal amount, they  have played   havoc with  the life of a

person.  No  Ambulance  was  called  at  the Ghaziabad Railway

Station. No Ambulance  was  called at  the New Delhi Railway Station.  The patient was carried

in a Railway Luggage Trolley, i.e. Thela.  The

Railway staff  was  not sensitive  and  was  discharging  their  duties in a ‘happy-go-lucky’

manner.   Had  it  been  a  case of  their  near  and  dear,  the  things  would  have been

otherwise.   Flushing off the stomach by the Doctors  immediately, could  have  saved the life of

the deceased,  irrespective of the fact,   whether,  it  is  a  case of  murder or it is a case of

suicide.  The train  should  have   halted at Ghaziabad, itself.  The person should

have been  removed  in  the Ambulance  and be treated,  immediately.   The

Great Shakespeare  says,  “In persons, grafted in a serious trust, negligence is a crime”.    In the

lump, the higher authorities are prone to turn a  Nelson’s  eye  to indiscipline,  in the

Department,  rather  than  taking the bull, by horns.  The case also stands proved under Section

123(c)  andSection 124 A of the Railway Act. 

 

18.    We,   therefore,    allow   the  complaint,  but   the    compensation   demanded   by  the

complainant  is  on the  excessive side.  Keeping in view  the facts and circumstances,

we  grant  total compensation  in the sum of  Rs.10,00,000/-  amount be paid, within 90

days,  otherwise,  it will carry interest @ 9% p.a., till its realization.

 

19.    We, further, direct the Divisional Railway Manager, Northern Railway, Muradabad,

U.P,  to make  an  enquiry  against  the Doctor at Ghaziabad, Conductor, T.T.E. and

Assistant/Attendant, within a period of six months and file the report, with the Registrar of this

Commission on or before 1st  April, 2014. Disobedience  shall tantamount to contempt of court.

                 The  original  petition  is disposed of, in the above terms.

 .…………………………J.

(J. M. MALIK)

PRESIDING MEMBER

……………………………..

(DR.S.M. KANTIKAR)

MEMBER

dd/24

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI   REVISION PETITION NO.     1874 OF 2012   (Against the order dated 16.02.2012  in Appeal No. 1778/2005 of the State Consumer Disputes

Redressal Commission, Rajasthan, Jaipur)

1. Union of India Through General Manager, West, Central Railway Jabalpur, M.P.2. The Divisional Railway Manager West Central Railway Kota, Rajasthan3. The Station Superintendent, Railway Station, Hindoncity, District Karauli, Rajasthan4. The Chief Commercial Manager, West Central Railway Jabalpur, M.P.5. The Chief Claim Officer, West Central Railway Jabalpur, M.P.6. The Chief Claimant Officer, West Railway Churchgate Mumbai, Maharashtra

...........Petitioners

Versus

1. Yash Industries Near Industries Area, Water Tank, Hindoncity, Through Proprietor Rajesh Kumar, S/o Shri Babulal By Caste Mahajan R/o Mohan Nagar, Hindoncity District Karauli, Rajasthan2. Manij Kumar S/o Shri Babulal, By Caste Mahajan,R/o Mohan Nagar, Hindoncity District Karauli, Rajasthan

...........Respondents

BEFORE:     HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBERHON’BLE DR. S.M. KANTIKAR, MEMBER        For the Petitioner                   : Mr. Shailesh Prakash Sharma, Advocate For the Respondent              :  Ex parte 

Pronounced On 3 rd   October , 2013  ORDER

PER DR. S.M. KANTIKAR1. The present Petition is filed under Section 21 of the Consumer Protection Act, 1986 against

the impugned judgment of State Consumer Disputes Redressal Commission, Circuit Bench, Rajasthan, Jaipur (in short, ‘State Commission’) in Appeal No. 1778/2005   where by the Appeal filed by the Appellant has been dismissed and the order of  District Consumer Disputes Redressal Forum, Karauli (in  short,  ‘District Forum’) in CC No. 11/2004 has been upheld.

  

2. The brief facts of this case are:Total 19 cartons of plastic frames, used for slates, were booked by the complainant, under two separate builties from Paladhar station to be delivered at Hindon city station. But, complainant received only 17 cartons. The Station Master at Hindon issued a short certificate for deficit. On several enquires, the complainant did not get satisfactory reply from OP. Each carton was of 32 kg in weight, at the rate of Rs.111/- per kg, for two cartons amounting to Rs.7104/-. The Senior Divisional Manager, Western Railway, Kota had granted the claim for Rs.500/-. Hence, alleging  deficiency  in service by OP, the complainant filed a complaint

before District Forum  for an award of  Rs.1,49,000/- towards compensation, along with  Rs.7104/-. 

3. That the District Forum after hearing arguments of the parties, partly allowed the complaint and ordered that out of both builties, one carton not being given, measuring 32 kg material @ Rs.111/- per kg., Respondents would make payment of Rs.7104/- to the Complainant, along with 6% interest, from 29.04.2003. If any amount has been paid to the Complainant, earlier, the same is to be adjusted and Rs.200/- will be paid towards cost of litigation. The aforesaid amount to be paid within two months.

 4. Aggrieved by the order of District Forum, the OP filed an appeal No.1778/2005, before the

State Commission. The State Commission dismissed the said appeal. 

5. Against the order of State Commission, OP preferred this revision. 

6. We have heard the counsel of both the parties. The learned Counsel  for petitioner vehemently argued that Consumer Fora have no jurisdiction to entertain such claim. But, it could only have been decided by Railway Claims Tribunal. The Counsel for the Petitioner brought our attention to the provisions of Sections 13 and 15 of the Railway Claims Tribunal. The relevant provisions of Sections 13 and 15, referred above, are reproduced hereunder:  “ 13. Jurisdiction, powers and authority of claims Tribunal – (1) The claims Tribunals 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 claim commissioner appointed under the provisions of the Railway 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 damage, deterioration of non-delivery of animals or goods entrusted to a railway administration for carriage by railways;

 ii) Compensation payable under Section 82-A 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 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 railways” “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.”

 7. The OP submitted that the value of such consignment was not declared by the Complainant, at

the time of booking. As per the provisions of Section 103 of the Railways Act, 1989, for any consignment entrusted to Railway Administration for carriage by Railway and the value of such consignment has not been declared as required under Sub Section (2) by the consigner, amount of liability of the Railway Administration for the loss, destruction, damage, deterioration or non-delivery of the consignment, shall, in no case exceed such amount, calculated with reference to the weight of the consignment, as may be prescribed. It is submitted that the amount, as was paid for non-delivery of the consignment was, as per the provisions of Railway Act, 1989.

 8. Therefore, we are of considered opinion that, both the fora below have erred in not observing

the provisions  of Sections 13 and 15 of Railway Claims Tribunal Act. The Consumer Fora

have no jurisdiction to decide this case on hand, under the Consumer Protection Act, 1986. Accordingly, we allow the revision petition and dismiss the complaint. Parties are directed to bear their own cost. Liberty is given to the Complainant to approach proper Forum for his claim.

  ..…………………..………J(J.M. MALIK)PRESIDING MEMBER   ……………….……………(DR.S.M. KANTIKAR)MEMBER

Mss-22