Western Railway v. Vinod Sharma

2. The facts of the case are that the complainant, Vinod Sharma, aged 34 years, residing at Krish Garden, Nalla Sopara (W), District Thane was employed with M/s. S.K.I.L. Infrastructure Ltd. as Administrative Manager and he used to commute from Virar Station to Churchgate Station in Mumbai, every day by local train. He was holder of a first-class season ticket/pass effective from 07.05.2010 to 06.06.2010. On 13.05.2010, when the complainant got down from the local train at Churchgate Railway Station at about 10.45 am, and was going towards his office, a heavy wooden plank/sleeper, approximately 10 ft long and 2 ft wide, fell on his head, on platform no. 3, from a height of more than 50 feet, causing grievous brain injury and multiple skull fracture with spontaneous unconsciousness. At that time, renovation work at platform no. 3 was at progress, but there were no warnings/alert sign- boards or fencing etc. to that effect on the spot. The complainant remained admitted at Bombay Hospital from 13.05.2010 to 09.09.2010 for brain/skull surgery. Thereafter, he was admitted in Alliance Hospital at Nalasopara during the period 12.10.2011 to 15.10.2011. The complainant was diagnosed as suffering from right hemiparasis grade III upper limbs, grade IV lower limbs and had significant global dysphasia. A part of his skull was removed that would be required to be fixed at a later stage. The complainant stated that he shall have to take treatment life-long in future and also take a special diet costing Rs. 6,000/- p.m. In the consumer complaint, the complainant sought directions to the OPs to pay compensation of Rs.

80.00 lakhs alongwith interest @ 12% per annum from 13.05.2010 till realisation and also the cost of litigation.

3. The OPs resisted the complaint by filing a written statement before the State Commission, in which they stated that the State Commission had no jurisdiction to entertain the complaint in view of Sections 13 & 15 of the Railway Claims Tribunal (RCT) Act, 1987. Moreover, the OPs had already paid more than Rs. 25 lakhs to the Bombay Hospital for medical treatment of the complainant. The OPs had sent letters dated 20.05.2010 and 05.08.2010 to the Medical Director, Bombay Hospital, saying that they will bear the entire expenses incurred during the treatment of the complainant. The said Hospital was asked to raise bills in the name of Chief Medical Superintendent, Railways, Mumbai, Central. Further, as per the Railway Board circular no. 2006/H/73 dated 12.09.2006, both emergency and essential type of medical treatment had been provided to the complainant, while he was admitted in Bombay Hospital and thereafter discharged also. The OPs also stated that under Section 124 & 124A of the Railways Act, the Railway Claims Tribunal had the exclusive jurisdiction to entertain the complaint in question. Further, the xerox copy of the railway identity card showed that there were no signatures of the complainant on the same. On the season ticket as well, there was no name and signatures of the complainant and his age was shown to be 21 years, meaning thereby that the said season ticket was not valid. The OPs maintained that no case was made out for awarding the compensation, as stated in the consumer complaint and hence, the same should be dismissed.

4. The State Commission, after taking into account the averments of the parties, allowed the said consumer complaint, vide impugned order, the operative portion of which reads as follows:-

"1. Complaint is partly allowed.

2. Opposite Party is directed to pay compensation of Rs. 62,87,040/- to the Complainant and an interest thereon @ 9% p.a. from the date of filing complaint will

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realization. The said amount should be paid to the Complainant within three months from the date of this order in default the amount will carry interest @ 12% p.a.

3. The Opposite Party is directed to bear the entire medical expenses present and future of the Complainant in respect of the said incident, arising out of the said disability as undertaken by the Opposite Party.

4. Opposite Party is directed to pay an amount of Rs. 5,00,000/- on account of pain, suffering, mental agony and loss of amenities.

5. The Opposite Party is directed to pay an amount of Rs. 15,000/- on account of cost of this complaint."

5. At the time of arguments, the learned counsel for the appellant Western Railway stated that the complainant did not fall under the definition of consumer, as per Section 2(d)(i) of the Consumer Protection Act, 1986. The learned counsel further stated that in view of the provisions of Section 120, 124, 124A and 125 of the Railways Act, 1989, the case did not fall under the jurisdiction of the consumer fora and the proper forum for the purpose was the Railway Claims Tribunal, as the injury had been effected on the Railway premises itself. Further, they had spent about Rs. 28 lakhs on the treatment of the patient and had tried to do their best to help the complainant.

6. The learned counsel for the respondent, however, argued that Section 28 of the Railway Claims Tribunal Act, 1987, provided that the Act shall have effect, notwithstanding anything inconsistent therewith, contained in any other law for the time being in force. In the present case, Section 28 of the RCT Act, does not have any implication, because Section 3 of the Consumer Protection Act, 1986 was an alternative remedy, given to the consumer to contest his claim with the opposite parties. Since there was no conflict between the Consumer legislation and the Railways Act or the RCT Act etc., the Consumer Protection Act also had application in the matter. The learned counsel further stated that the instant case involved an accident on the premises of the Railways and hence, they were fully liable to make payment of compensation to them. Referring to the averments of the Railways in their written statement that they were meeting all medical expenses of the complainant, the learned counsel stated that they had stopped making payments, after the consumer complaint had been filed. The wife of the complainant sent a letter on 23.01.2012 to the Divisional Railway Manager of the Western Railway, asking for reimbursement of medical expenses, as her husband was permanently disabled. She mentioned in the said letter that she had written to the Chief Medical Superintendent on 01.11.2011 for reimbursement of a small amount of Rs. 15,780/-, but she got reply from them on 02.11.2011, that she had to apply to the Railway Claims Tribunal for compensation. According to the learned counsel, the complainant was the sole bread-earner of the family and had minor children. The family was, therefore, in a state of great distress, as the complainant had suffered a permanent

disability. The learned counsel argued that their case did not fall under Section 123, 124 or 124A of the Railways Act and hence, the claim was not required to be filed before the Railway Claims Tribunal. The learned counsel stated that a duty of reasonable care had been cast on the OPs and they could not escape their responsibility in the matter. The learned counsel has drawn attention to an order passed by the Hon'ble Supreme Court in Rathi Menon vs. Union

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of India, (2001) 3 SCC 714, in which, it was stated that the right of any person to claim compensation before the Railway Claims Tribunal as indicated in Section 124 or 124A shall not affect the right of any such person to recover compensation, payable under any other law for the time being in force.

7. The learned counsel for the respondent also stated that the delay of 67 days in filing the appeal should not be condoned, as there was no valid reason to do so.

8. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

9. The main thrust of the arguments advanced on behalf of the appellant, emphasises that the consumer fora had no jurisdiction to entertain the consumer complaint in question, keeping in view the provisions of the Railway Claims Tribunal Act, 1987 and the Railways Act, 1989.

10. Section 13 (1A) of the Railway Claims Tribunal Act, 1987 says as follows:-

"Section 13 (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 (2A 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."

The above Section was included in the said Act by Act 28 of 1994 (Section 9) and made applicable w.e.f. 01.08.1994.

11. Section '15' of the said Act says as follows:-

"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 (1A) of section 13."

12. Section 28 of the Railway Claims Tribunal Act, 1987 says as follows:-

28. Act to have overriding effect.- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

13. Further, Section 124 of the Railways Act, 1989 is reproduced as under:-

"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

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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 purposes of this section "passenger" includes a railway servant on duty."

14. Section 123(c) of the Act defines the untoward incident as follows:-

"[(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 on 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.]"

15. Section 124A of the Act provides for giving compensation on account of an untoward incident. On the other hand, the Consumer Protection Act, 1986 (Act no. 68 of 1986), says the following in its preamble:-

"An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith."

16. Further, Section '3' of the Consumer Protection Act, 1986 says as follows:-

"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."

17. A plain reading of the provisions quoted above from the Railways Act, 1989 and the Railway Claims Tribunal Act, 1987 indicates that an elaborate mechanism has been laid down for providing compensation in the event of accidents, untoward incidents and allied matters, during the course of the operations, carried out by the Railways and for that purpose, the jurisdiction, powers and authority of the Claims Tribunal have been laid down. It is to be determined, however, whether keeping in view the above provisions, the consumer fora shall

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also have the jurisdiction to deal with the matters, involving railway accidents. The issue has come up for consideration from time to time before the Hon'ble Apex Court and this Commission as well. It has been observed that the Consumer Protection Act is a special legislation, enacted to provide better protection for the interests of consumers in diverse fields. It is true that for specific sectors such as banking, finance, insurance, supply of electricity, entertainment etc., appropriate mechanism has been laid down in the respective statute, to provide suitable relief to the consumers as per requirements. However, the Consumer Protection Act is a beneficial legislation, specially enacted for the protection of the consumers and provides an additional remedy in the shape of Section '3' of the Consumer Protection Act, which clearly lays down that the provisions of the Act shall be in addition to, and not in derogation of the provisions of any other law for the time being in force. A harmonious construction of the provisions contained in the Consumer Protection Act and the Railways Act etc. shall indicate that the jurisdiction of the consumer fora cannot be barred, even if the provisions to provide compensation are laid down in the Railway legislation. The Hon'ble Supreme Court in their order in Secretary, Thirumurugan Cooperative Agricultural Credit Society vs. M. Lalitha (dead) through LRs, I (2004) CLT 20 (SC) and in Trans Mediterranean Airways vs. Universal Exports, IV 2011 CPJ 13(SC) observed that, "

having due regard to the scheme of the Act and purpose sought to be achieved to protect the interest of the consumers, the better provisions are to be interpreted broadly, positively and purposefully to give meaning to additional/extended jurisdiction, particularly when Section '3' seeks to provide remedy under the Act in addition to other remedies provided under other Acts, unless there is clear bar.

18. In State of Karnataka vs. Vishwabarathi House Building Co-op. Society, I (2003) CPJ 1 (SC), the Hon'ble Supreme Court observed, that by reasons of the provisions of Section '3' of the Act, it is evident that remedies provided thereunder are not in derogation of those provided under other laws. The said Act supplements and not supplants the jurisdiction of the Civil Courts or other statutory authorities.

19. Based on the discussion above, it is held that the consumer fora do have the jurisdiction to deal with the present case and hence, the consumer complaint cannot be dismissed on the ground of lack of jurisdiction by the consumer fora.

20. Now, coming to the question of the delay of 67 days in filing this appeal, the learned counsel for the appellant tried to explain that the delay had occurred due to administrative exigencies, as approvals had to be taken from their offices in Mumbai as well as in Delhi and also, time was spent in engaging the services of suitable Advocates at Delhi. The position explained by the appellant shows that there is no intentional delay on their part in filing the appeal. The delay of 67 days is, therefore, ordered to be condoned.

21. A plea has been taken by the appellants that the complainant does not fall within the definition of consumer as the Railway identity card in his possession did not bear the signatures of the complainant and also on the season ticket, there was no name and signatures of the complainant. This contention of the OP is without force, as the Railways have nowhere denied that these are not the documents issued by them. The Railways have not alleged anywhere that the complainant had made any forged identity card or season ticket. It is held, therefore, that the complainant cannot be denied the privileges of a consumer, based on the technicality that the signatures were not there on the identify card or the season ticket. It is

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held, therefore, that for the purpose of the present proceedings, the complainant very much falls within the definition of consumer, as his status as Railway passenger, as well as the factum of the accident on the Railway premises had been admitted by the OP Railways.

22. In so far as the entitlement of the complainant for the grant of compensation is concerned, the State Commission gave directions to the Dean of J. J. Hospital, Bombay to have the complainant thoroughly examined by a panel of doctors to ascertain the percentage of his disability and then to issue a certificate. The complainant was accordingly examined at J.J. Hospital, Mumbai on 05.11.2014 and a disability certificate was issued to him, according to which, the complainant suffered permanent disability to the extent of 90% and also post- traumatic brain injury. It is very clear that the State Commission rightly concluded that as a result of the injury suffered during the accident, the complainant was not in a position to do any work and his functional disability was 100%.

23. Now coming to the quantum of compensation allowed to the complainant, the State Commission relied upon the order of the Hon'ble Supreme Court in the case Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., (2009) 6 SCC 121. As per the principles laid down in the said case, the State Commission based their order on the figures of gross salary taken by the complainant and adding 50% to the same to take care of the increase in salary in future. The State Commission multiplied the figure so obtained, with a multiplier of '16', as given in Sarla Verma (supra) case, depending upon the age and condition of the complainant, and arrived at the figure of Rs. 62,87,040/-. The State Commission directed to pay compensation on this amount alongwith interest @ 9% per annum and another sum of Rs. 5 lakhs on account of compensation, pain, suffering etc., besides Rs. 15,000/- as cost of litigation.

24. There has been considerable discussion about the methods to be adopted in determining compensation in such cases. A compendium has been given in an Article titled as, "Medical Negligence and Compensation in India: How Much is Just and Effective," by Professor Anurag K. Agarwal, Indian Institute of Management Ahmedabad, India. Various methods like the "multiplier method" and "just and adequate compensation" have been discussed in detail. The latter method was followed by the Hon'ble Supreme Court in the case, Dr. Balram Kumar & Ors. vs. Kunal Saha & Ors., (2014) 1 SCC 384. However, looking at the facts and circumstances of the case, it appears that the method followed by the State Commission and the quantum of compensation arrived at by them, shall meet the ends of justice and there is no need for making any change in that. It is more so, keeping in view the fact that the Railways had already provided compensation to the complainant by way of meeting expenses on medical treatment.

25. Based on the foregoing discussion, it is held that there is no merit in the present appeal, and the same is ordered to be dismissed as there is no illegality, irregularity or jurisdictional error of any kind in the order passed by the State Commission. The said order is, therefore, upheld and the present appeal is ordered to be dismissed. There shall be no order as to costs.

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DR. B.C. GUPTA

PRESIDING MEMBER

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