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2002(2) CPR 252
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, KERALA : THIRUVANANTHAPURAM
L. Manoharan. President; Prof R. Vijayakrishnan and Smt. K.P. Sumathy. Members
Santha Kumary & Ors. - Complainant
Versus
Union of India & Ors. - Respondents
O.P. No. 54 of 1997
Decided on 3-7-2001
Held: A reading of the Section 128 of the Railways Act would show that the claim of compensation under Sections 124 and 124-A would not affect the right of such person to recover compensation under the Workmen Compensation Act or any other law but it proceeds to enjoin that no such person would be entitled to claim compensation more than once in respect of the same accident that would include untoward incident also. Therefore section 128 would bar a further claim of compensation in respect of the same occurrence.
Once the person avails compensation under the Railway Claims Tribunal Act he cannot move for compensation on the basis of the same untoward incident again.(Paras 7 & 11)
Section 14(1)(c) enjoins that the Commission can issue- an order of direction to the opposite parties to do one of the things enumerated in clause(a-1) the clause applicable to the instant case is Section 14(1)(d) it states that the Commission can direct the opposite party to pay such amount as compensation for any loss or injury suffered by the consumer due to the negligence of the opposite party. What is important is for mere negligence no compensation can be awarded compensation can be awarded only for the injury caused to the consumer as a result of the negligence by the opposite parties. Here even assuming that there was cause of action for negligence in not giving timely attendance and care to Dr. Viswanathan who fell unconscious on the platform, the injury for which the complainants would be eligible for compensation was the death of Dr. Viswanathan. For the death of Dr. Viswanathan already compensation has been availed as per the provisions of the Railways Tribunal Act. If that is so Section 128 bars a claim for further compensation. An Attempt was made by the learned counsel to say untoward incident was the fall of Dr. Viswanathan and his becoming unconscious. What happened later gives rise to a separate - cause of action for the complainant to move the Consumer Commission for compensation. As has already noted not only the finding in Ext. P 19, but also on the account of the complainants, seeking for relief and obtaining the same for the death of Dr. Viswanathan, they cannot maintain this fresh action for compensation again.(Para 12)
In view of Section 3 of the Consumer Protection Act the provisions of the said Act being in addition to and not in derogation of the provisions of any other law for the time being in force the petition is maintainable. What is stated in the said section is, the provision of the said Act is in addition to and not in derogation of any other law. Thereby it clarifies that Consumer Protection Act is not in derogation or against any other provision of law. It has to be noted that whereas the Consumer Protection Act is a general law, the Railways Act is a special law and therefore the principle that the special law will override general law, will have application.
Railways Act concerns a class of consumers whereas The Consumer Protection Act concerns the consumers as a whole and their rights. Therefore the Railways Act in relation to the Consumer Protection Act is a special law and hence the provisions therein will have effect. Looking at the question in that view also Section 128 cannot be held to be not applicable.(Para 13)
(ii) Consumer Protection Act, 1986 - Section 2(1)(d) - Consumer - Legal heirs of deceased passenger of train, who died in untoward incident - Is consumer - Can maintain complaint.(Para 15)
Result: Complaint dismissed.
L. Manoharan,(President):- Complaint for a direction to the opposite parties to pay compensation for their negligence resulting injury and consequential death of Dr. T.V. Viswanathan the husband of the first complainant and the father of the complainants 2 & 3.
1. The al1egations in the complaint in brief are as follows: Dr. T. V. Viswanathan. Associate Professor Kerala Agricultural University Mannuthy booked a second class ticket for his journey from Thrissur to Thiruvananthapuram in night Right of 19.2.95 for attending a seminar at Thiruvananthapuram. When train reached Pudukkad railway station at about 11 p.m he stepped out to the platform with his bag and in the process to boarding the train due to the unusual jerk he fell from the compartment on the footpath of the platform; PWI, and the two others who were on the platform seeing Viswanathan falling immediately rushed to him and tried to help him They reported, to the third opposite party Station Master that a passenger is lying on the footpath of the platform in an unconscious condition. But the third opposite party directed the informant to bring the unconscious man before his room, thereupon they transported the unconscious man in a trawly to the room of the 3rd opposite party and they sprinkled water on the face of the unconscious man they noticed body movement he was alive though was unconscious. The said three persons offered to take the unconscious man to the hospital which is 1/4 Km away from the station in a taxi which belonged to one of them. But the third opposite party disuaded them from doing so saying that he may not need any such help and he would regain consciousness and wanted him to be left alone. In such circumstance since they could not do anything they left. This was derelictions of the duty on the part of the 3rd opposite party he did not discharge the duty of care to attend the unconscious passengers. It is said that the third opposite party contacted persons but nobody turned up. Then he contacted the police station they said that the jeep was in the workshop and the same is not readily available and ultimately the police took the unconscious person by about 4-4.30 a.m on 20.2.95 to the hospital. Police noted that he appeared to be dead. The death occurred due to the negligence of the opposite parties and therefore they are liable under law to compensate the complainant after doing M.sc in 1976 he obtained Ph.D in Botany. He was Associate professor in the Kerala Agricultural University and had presented various papers and had a bright future. He was 51 years and was drawing a salary of Rs. 9.000/- per month and could have continued till he attained 60 years. Even after retirement he would have got appointed in other jobs on account of his experience and academics performance particularly in the field of science. Having regard to the salary of the deceased and the expectancy of life the complainants are eligible to have a total compensation of Rs. 9.26.500/- but they limit: the claim to Rs. 7.50.000/Though they have filed O.A. 24/96 before the Railway Claims Tribunal at Ernakulam and compensation was awarded that is not a bar to maintain this complaint before this Commission.
Therefore the complainants wanted direction to the opposite parties to pay the aforesaid amount with interest and also direction to the railway authorities to keep accessories for to meet such emergency.
2. Opposite parties filed joint version and later the 3rd opposite party filed a separate version also. The contentions in the version filed on behalf of the opposite parties by the Add. Divisional Railway Manager, Southern Railway are that the petition is not maintainable the allegations in the complaint are not true or correct, the claim in the complaint is beyond the scope of Consumer Protection Act 1986 on the ground itself the petition is liable to be dismissed petitioners are not consumers. Section 15 of the Railways Claims Tribunal Act 1987 bars the jurisdiction of oth
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