Judgment:
S.N. Phukan, President::
1. The present petition has been filed by the parents of deceased Kabita Hansaria claiming compensation against the Railways amounting to Rs. 5 (five) lacs; Rs. 2 (two) lacs for the death of their daughter, deceased Kabita Hansaria and Rs. 3 (three) lacs for mental and emotional shock suffered by the complainants. The complainant No. 2, i.e. mother with her son and daughter deceased Kabita boarded the Tinsukia Mail on 27.12.90 at Delhi for travelling to Guwahati. It is stated that the train was interconnected train with facility of travelling /going from one compartment to the other in case of need by any of the passengers. The passage according to the petitioner has to be thoroughly covered and protected. On 29.12.90 there was no water in the compartment in which the above persons were travelling and near Chansari Railway Station, deceased Kabita felt the need for attending her call of nature. As there was no water, she was going to next compartment through the passage which was supposed to be covered and protected by the Railways for the safety of the passengers, but that particular passage, according to the petitioners had no side grills for safety of the passengers. When deceased Kabita was passing through the passage, due to sudden and great jerk because of sudden increase in speed, she fell down on the ground and was run over by the said train and died on the spot. A case was registered being GRPS9U/d/case No. 32/90 dated 31.12.90 and after investigation it was found that death was due to accident. A final report has been submitted by the Police and the same was accepted by the learned S.D.J.M. vide order dated 11.12.91 which is annexed herewith as Annexure-2. The post mortem was also conducted and according to the opinion of the Doctor, death was due to crush injuries on the head and report is at Annexure 3 to this petition. It has been alleged that the death was due to negligence of Railways in performing their duties, inasmuch as the Railways did not take appropriate steps for checking /mending the passage interconnecting the two compartments before the journey.
2. The deceased Kabita after her studies was managing the shop of her father and her monthly income was Rs. 1500/- and at the time of her death, she was 21 years. The complainants also spent Rs. 10,000/- in performing her last rites.
3. In the counter filed on behalf of the opposite parties, it has been denied that there was negligence on the part of the Railways. It has also been denied that the passage in question between the two compartments was not protected to prevent any accident. According to the respondents the Coach in which the deceased Kabita was travelling was a new Coach turned out of JUW Workshop on 17.11.90 after its complete over hauling and was provided with a new vestibules in complete condition required for safety of the passengers including the side grills. It has also been denied that there was no water in the compartment in question. It has been denied that deceased Kabita felt need for attending her call of nature and that as there was no water in the compartment, she had to go to the adjoining compartments where the water was available. According to the respondents no complaint was received from any passenger regarding non-availability of water in the compartment in question. The main question that has been raised is that the petition is not maintainable in view of the Claims Tribunal constituted under the Railways Claims Tribunal Act, 1987 (in short the Act).
4. Heard learned Counsel for the parties. In addition, the learned Counsel of both the parties have also submitted written arguments.
5. Let us first consider whether the present petition is maintainable in view of the provisions of the Act. The long title of the Act inter alia, provides for establishment of Railways Claims Tribunal for enquiring into the matter and determining the claims against the Railway administration for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to it to be carried by a Railway or for refund of fares or freight or for compensation for death or injury to passengers occurring as a result of Railway accidents. Section 13 of the Act lays down jurisdiction, power and authority of a Claims Tribunal and for the present purpose Sub-clause (ii) of Clause (a) of Sub-section (1) is relevant. This Sub Clause (ii) gives jurisdiction to the Claims Tribunal in respect of compensation payable under Section 82A of the Railways Actor Rules made thereunder:
6. Section 82A of the Railways Act is regarding compensation payable as a result of accident. Therefore, reading the long title and Section 13 of the Act, we have no hesitation in holding that the jurisdiction of the Claims Tribunal is confined in respect of death, injury etc. caused as a result of Railway accident. In the case in hand, there was no such Railway accident and the allegation is that the death was due to negligence of the Railways. Therefore, the present claim does not come under the jurisdiction of the Claims Tribunal. From the documents furnished by the parties, we find that the present claim was lodged before the Claims Tribunal at Guwahati and the Tribunal allowed the present petitioners to withdraw the claim petition before the Claims Tribunal with liberty to institute fresh complaint in a Competent Forum. The Claims Tribunal was also of the view that the application did not attract the jurisdiction of the Tribunal. The said order was passed on 13.5.92 in application No. 1873/91 vide Annexure-5 to the present petition. Therefore, the present claim does not come within the jurisdiction of the Claims Tribunal as held by us. This view has been expressed by us in various other decisions and we find that similar views have been expressed by different State Commissions.
7. There is no dispute that the deceased Kabita along with her mother and brother were travelling in the train as stated in the petition and the photocopy of the tickets are annexed as Annexure-A to the petition. The National Commission in General Manager, South Eastern Railways v. Anan Prasad Singha, I (1991) CPJ 10 (NC) held that passengers travelling by train on payment of the stipulated fare charged for the tickets are consumers under Act of 1986 and that the facilities of transportation by Railway Administration is a service rendered for consideration and as defined in the Consumer Protection Act, 1986.
8. Therefore, deceased Kabita was a consumer and if there is any deficiency of service by the Railways the present claim is maintainable. From the post mortem report it is clear the death was due to crush injuries on the head and the police after investigation also submitted final report that the death was due to accident and the report was accepted by the learned S.D.J.M. as stated above. Therefore, death of Kabita occurred while she was travelling in the train as claimed by the petitioners.
9. Now the question of negligence is to be considered. There is no dispute that in the train there was connecting passage Between the two compartments. Though Railway has denied that there was no water in the compartment as alleged only on the ground that other passengers did not file any complaint. We are unable to accept this contention on ground, as knowing the nature of the people of our country, normally complaint may not be filed in such case.
10. Railways have claimed that the passage was well protected and the accident did not occur due to want of proper protection of the passage. We are unable to accept the contention inasmuch as, the fact remains that the deceased Kabita fell down from a running train. This fact itself is sufficient, in our opinion, to accept the contention of the petitioners. We, therefore, hold that the petitioners are entitled to get compensation.
11. The petitioners have claimed Rs. 2 lacs as compensation due to death of deceased Kabita. From the claim petition we find that she was aged 21 years and she was running the shop of her father after Second Year Pre-University Course and her monthly income was Rs. 1,500/-. Therefore, we hold that the amount of Rs. 2 lacs is a reasonable. A sum of Rs. 3 lacs has, claimed as compensation for mental and emotional shock suffered by the petitioners. We are of the opinion that this amount is excessive and ac cording to us Rs. 25,000/-would meet the ends of justice. We, therefore, direct the Railways to pay a sum of Rs. 2,25,000/- to the petitioners within 3(three) months, failing which the petitioners shall be entitled to get interest at the rate of 12% per annum on the above sum after 3 months from today. We are not awarding separate compensation of Rs. 10,000/-for performing the last rites of deceased Kabita. The petition is accordingly allowed.
Petition allowed.