EX.HAVILDAR BALBIR SINGH vs Union of India

FOR the limited purpose of upholding the preliminary objections raised on behalf of the opposite parties and consequently relegating the complainant to his ordinary remedy under the Civil Court, it seems wholly unnecessary to delve into the facts in any great detail. It suffices to mention that the complainant whilst in service, was traveling on a Railway Concession Voucher issued by Army authorities from Jammu Tawi to Hisar. On 5th of August, 1990, at Jakhal Railway Station he attempted to board a moving train with the result that he fell down and the wheel of the train went over the complainant''s right leg which was crushed with consequential injuries. Aggrieved thereby the present complaint seeking compensation to the tune of Rs. 8 lacs has been preferred on the allegation of the negligence by the Railway authorities.

IN the reply on behalf of the opposite parties 1 & 2 preliminary objections have been taken which have been very strenuously pressed by Shri Raj Kumar Sharma, their learned Counsel. It has been first urged with vehemence that on the basis of the Confessional Vouchers, the complainant was not entitled to board the moving train which he attempted to and being an unauthorized passenger thereof, he would not come within the ambit of a bona fide railway passenger and consequently would not be a consumer. Further, on the basis of the averments in the reply, serious allegations of negligence and default have been squarely laid at the door of the complainant himself on the ground that he rashly tried to board running train after it had gone beyond the platform and consequently slipped and got himself injured. Counsel''s plea was that other things apart a ticklish question of contributory negligence would arise for determination. Yet again firm reliance is being placed by the opposite party on a statement given by the complainant himself to the Railway Police, a copy whereof has been annexed as R-1. On the basis of the contents thereof, it was pleaded that the complainant therein had in terms admitted his own fault and expressly exonerated the railway from all the blame. On the basis of the pleadings, the threshold stand of the learned Counsel for the opposite party is that herein ticklish and deeply complicated issues of fact and law arise which must necessarily be established or repudiated by voluminous evidence and consequently the list is not one which can be tried in the summary consumer jurisdiction and must, therefore, be relegated to the appropriate Civil Court.

We find patent merit in the aforesaid stand. What first meets the eye is the fact that the learned Counsel for the complainant did not out-rightly deny his signature on Ex. R-1 which is his statement recorded immediately after the incident. This however was sought to be assailed on the ground mentioned in the memorandum of arguments submitted on behalf of the complainant as follows : "Firstly the doctor attending has vouchsafed as to the inability of the complainant to make any statement on the alleged date viz. 06 Aug'' 90. Secondly it is uncertain that it bears his signature; much less that it is his hand as by the very nature of injuries, the patient must be on intravenous for injecting glucose and blood to keep him alive on 6th Aug'' 90. Thirdly it is allegedly attested by a non-descript person whose identity is not known. Fourthly, it is supposed to be prepared by the investigating agency-the police''-in this case who are aware of the implications and what all is the pre-requisites and legal parameters."

IT would be somewhat manifest that the afore-said stand on behalf of the complainant seems to patently boom-rang on his claim to have the matter tried in the summary consumer jurisdiction. IT is somewhat elementary that the four-fold tangled issues sought to be raised above have inevitably to be established by a mass of evidence which will require an incisive challenge and the oral testimony would necessarily have to go through the crucible of cross-examination of many witnesses. Inevitably the opposite party would be entitled to rebut the same in an equally detailed manner. Once that is so, the complexity of the matter and the nature of volume of testimony required for a meaningful adjudication is too obvious to need further elaboration. Apart from the above, ticklish issues a re sought to be raised with regard to the consumer status of the complainant because of the army concession voucher on which he was traveling and the route to which he was entitled to take. The plea for whatever is worth has been firmly taken that as regards the particular train he tried to board, the complainant was an unauthorised passenger thereof and consequently not a consumer. The incidents of the Confessional railway vouchers issued by the Army authorities and the terms and conditions which have to be adhered to are matters which would, therefore, merit a long preliminary investigation on the score whether the complainant is a consumer at all or otherwise.

LASTLY, we find force in the stand of Shri R.K. Sharma, the learned Counsel for the opposite party that herein the pleadings would give rise to the always difficult question of contributory negligence in an accident. These are issues fairly difficult, if not impossible to resolve in the summary process of the consumer jurisdiction. Indeed it might well involve hardship to the complainant to enter into a contentious trial before this Commission and to latter only discover that the matter is too complicated to be satisfactorily resolved herein. For the foregoing reasons, we are firmly of the view that the complaint herein is not fit for trial before this Commission and virtually in his own interest, the complainant must be relegated to his ordinary remedy before a Civil Court which along can competently adjudicate on the tangled issues involved herein. The matter is disposed of in these terms leaving the complainant to his ordinary remedies at law as he may be advised. Matter disposed of.