Bombay High Court
Shri Shashikant S/O Nandkisore Dhage vs Union Of India Thr. General Manager ... on 3 July, 2017
Author: S. B. Shukre
Bench: S. B. Shukre
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
First Appeal No. 309 of 2017
Appellant : Shashikant son of Nandkishore Dhage,
aged about 21 years, Student, resident of
920, Opp. Anupama Saree Centre, Bhaji
Mandi, Near Nikalas Mandir, Nagpur
versus
Respondent : Union of India, through its General
Manager, Central Railway, Mumbai CST Shri A. B. Bambal, Advocate for appellant Shri N. P. Lambat, Advocate for respondent Coram : S. B. Shukre, J Dated : 3rd July 2017 Oral Judgment
1. Heard. Admit. Heard finally by consent of both the parties.
2. Appellant filed an application under Section 124-A of the ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 2 Railways Act for claiming compensation for the grievous injury he suffered in train accident which he described as an "untoward incident" as defined under Section 123 (c) (2) of the Railways Act. He submitted that he was travelling on train on 29th August 2010 on a valid reservation-cum- ticket from Nagpur to Tirppur. He contended that when he reached Chandrapur Railway Station in wee hours, he alighted from the train in order to buy a tooth-brush. But he could not see any store on the platform and while he was in the process of boarding the coach, due to sudden jerk that the coach received, the appellant lost balance and fell out of the coach and caught between the platform and the train and sustained injuries. His middle thigh on left leg was required to be amputated.
3. The application, on merits of the case, was rejected on the ground that the accident of a passenger who has fallen from a moving train is not covered by the definition of "untoward incident" under Section 123 (c) (2) of the Railways Act and therefore, the learned Member of the Tribunal rejected the claim application by its judgment and order dated 21st April 2016.
4. The appellant claims that by the impugned judgment and order, injustice visited him and, therefore, he is forced to file an appeal. ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 3 His appeal is the present appeal.
5. Shri Bambal, learned counsel for the appellant submits that now it is well-settled that the accident caused from moving train while trying to board or deboard it, is covered by definition of "untoward incident" as given in Section 123 (c) (2) of the Railways Act. He relies upon the law laid down by the Hon'ble Apex Court in the case of Union of India v. Prabhakaran Vijaya Kumar & ors reported in 2008 (2) T.A.C. 777 (SC). He also points out that the injury suffered by the appellant as per the medical certificate vide Exhibit A-30 is covered by item (19) of the amended schedule which was amended by Notification dated 22nd December 2016, copy of which is filed on record and it is marked "X" for identification.
6. Shri Nitin Lambat, learned counsel for the respondent submits that the law settled by the Hon'ble Apex Court in the Case of Union of India v. Prabhakaran Vijaya Kumar & ors (supra) is a matter of record. But he submits that the injury suffered by the applicant was self-inflicted and that by the own admission of the appellant, what is established on record is a "criminal act" which is covered by an exception vide clause (c) of the proviso to Section 124-A of the Railways Act. Therefore, he supports the impugned judgment.
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7. In the instant case, if one considers the evidence available on record and admission given by the appellant, no doubt is left in my mind that the accident occurred at a time when the train had started to roll down the track and the appellant tried to board the train. The question would, therefore, be - whether an accident occurred while boarding the moving train is covered by the definition of "untoward incident" under Section 123 (c) (2) of the Railways Act or not. An incidental question is, whether such an act could be termed as a "criminal act" or not.
8. Section 123 (c) (2) of the Railways Act defines the expression "untoward incident" as an accidental falling of any passenger from a train carrying passengers. Section 124-A of the Railways Act allows compensation on account of untoward incident. Clause (c) of the proviso to Section 124-A creates an exception by laying down that no compensation will be payable by the Railway Administration if the passenger dies or suffers injury due to his own criminal act. The expression "untoward incident" covered by Section 123 (c) (2) has been given liberal interpretation by the Hon'ble Apex Court in the case of Union of India v. Prabhakaran Vijaya Kumar & ors (supra). It held that the provisions of law which allow compensation to be paid to the affected person because of untoward incident is a part of a beneficial ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 5 legislation and, therefore, it must receive liberal interpretation. It further held that if the expression is capable of two different interpretations - one favouring the Railway Administration and the other the victim of untoward incident, the Court must adopt that construction which helps the victim of untoward incident. It also found that if a stricter construction is to be placed upon this provision, in a country like India where crores of people travel by railway trains since everyone cannot afford travelling by air or in a private car, we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. This was another reason for the Hon'ble Apex Court to give liberal construction to the expression "untoward incident" defined under Section 123 (c) (2) of the Railways Act. Thus, the Hon'ble Supreme Court held that when a bonafide passenger, trying to enter into a railway train, falls down during the process, the accident would be an untoward incident covered by Section 123 (c) (2) of the Railways Act. The relevant observations of the Hon'ble Apex Court appearing in paragraph 14 are reproduced thus :
"14. In our opinion, if we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in Section 123 (c) of the Railways Act, we will be depriving a large number of ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 6 railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression 'accidental falling of bonafide passenger i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purpositve, and not literal, interpretation should be given to the expression."
9. Shri Lambat, learned counsel for the respondent submits that the facts in the case of Union of India v. Prabhakaran Vijaya Kumar & ors were quite different than the facts of the instant case. In that case, a passenger had fallen down from the train and died of the injuries in the process, which is not the case in the present appeal. He submits that in the instant case, the negligence on the part of the appellant was writ large as he had spent longer time than was permitted on platform of ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 7 Chandrapur Railway station. He submits that there was sufficient warning given by blowing of horn about the train being ready to depart and the railway personnel also blew up the whistle for departure of the train and that it was only after these forewarnings that the train actually started moving. He submits that it was only then that the appellant realized that it was time for him to get into the train or otherwise, he would be left high and dry on the platform and as he hurriedly tried to get inside the bogie, he lost his balance and the accident occurred. He submits that if the appellant had respected the stoppage time of train for Chandrapur Railway Station, there would not have been any accident. But, he ignored the same and, therefore, he himself was negligent, so submits the learned counsel. Of course, this has not been agreed to by learned counsel for the appellant. He submits that even in the case of Union of India v. Prabhakaran Vijaya Kumar & ors (supra), as mentioned in paragraph 8 of the judgment of the Apex Court, the victim had attempted to board a moving train and fell down from the same and, therefore, the facts herein are not distinguishable.
10. On going through the entire judgment in the case of Union of India v. Prabhakaran Vijaya Kumar & ors, I find that the facts of that case are quite similar to the facts of the instant case. It is seen from the observations of the Hon'ble Supreme Court in paragraph 8 of the ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 8 judgment that DW-1 in that case tendered the evidence to the effect that he saw one girl running towards the train, trying to enter the train and falling down the train. He deposed that deceased Abja had attempted to board the train and fell down from the running train. It is a fact in the present case that the appellant while trying to get inside the train when the train had started to roll down on the track, fell down. In the light of these facts and the ratio laid down by the Hon'ble Apex Court, learned counsel for the appellant has rightly submitted that the accident in the present case would be covered by the definition of "untoward incident"
given in Section 123 (c) (2) of the Railways Act.
11. Now, the question would be, whether such an attempt made by the appellant would fall within the exeption to Section 124-A of the Railways Act or not. Clause (c) to Section 124-A states that if an accident occurs due to any criminal act of the passenger, the victim or the passenger would not be entitled to receive compensation. "Criminal act"
as such has not been specifically defined in any of the provisions of the Railways Act. However, certain penalties for the offences under the Act are provided under Chapter XV of the Railways Act. As submitted by learned counsel for the respondent, I see at least two of the provisions providing for punishment, relevant for the purpose of answering the question posed earlier. Relevant provisions contained in Sections 154 ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 9 and 156 of the Railways Act read thus -
"154. Endangering safety of persons travelling by railway by rash or negligent act or omission - If any person in a rash and negligent manner does any act, or omits to do what he is legally bound to do, and the act or omission is likely to endanger the safety of any person travelling or being upon any railway, he shall be punishable with imprisonment for a term which may extend to one year or with fine, or with both."
"156. Travelling on roof, step or engine of a train. - If any passenger or any other person, after being warned by a railway servant to desist, persists in travelling on the roof, step or footboard of any carriage or on an engine, or in any ther part of a train not intended for the use of passengers, he shall be punishable with imprisonment for a term which may extend to three months or with fine which may extend to five hundred rupees, or with both and may be removed from the railway by any railway servant."
12. A closure reading of above Sections would show that only those acts which either endanger safety of persons travelling by railway ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 10 or travelling on roof, step or engine of train are covered by them. It is only these acts which could be termed as "criminal acts" constituting offences and attracting penalties under Chapter XV of the Railways Act.
13. In the instant case, there has not been any act done by the appellant which endangered safety of the other passengers. There is also nothing on record showing that inspite of warning by a railway servant, the appellant persisted to travel on roof, step or engine of a train or any other part of a train not intended for the use of passengers. On the contrary, the appellant was holding a valid ticket-cum-reservation; was a bonafide passenger; had not violated any rules in alighting from the train in order to buy a toothbrush and had only tried to get into the train when he realized that the train had started moving on its wheels. It is significant to note that it was for the railway administration to make available stores of essential commodities near the coaches and in the instant case, no store on the platform was open when the appellant alighted from the train. The appellant was required to look for one such store at different places on the platform of Chandrapur Railway Station and in that process, he had to move here and there and when he was away from the bogie, the train started rolling. The negligence, if at all it was there, could be attributed not to the appellant but to the railway administration. This negligence resulted from not making available ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 ::: 11 requisite store for the passengers travelling on long distance trains. So, I find that the accident which occurred due to fall of the passenger i.e. the appellant from the running train, was an "untoward incident" not covered by any exception to Section 124-A of the Railways Act, 1989. The question raised in this regard is answered accordingly.
14. Now, the question is about the quantum of compensation payable to the appellant. Medical Certificate (Exhibit A-30) shows that the appellant has suffered amputation of his left thigh about which there is no dispute. Such accident is covered by entry no. 19 of the Notification dated 22nd December 2016 (Document "X"). The victim of untoward incident under this entry is entitled to receive compensation of Rs. 4,80,000/-. Appellant is, therefore, declared to be entitled to receive the amount of Rs. 4,80,000/- and the respondent would be liable to pay the same to the appellant with interest from the date of application till actual realization @ 7% per annum. This compensation be paid within three months from the date of this order, failing which the appellant shall be entitled to recover the sum from the respondent together with interest @ one more percent per annum from the date of failure to pay the compensation as per this order, till realization, in addition to 7% interest granted from the date of application.
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15. In the result, impugned judgment and order are quashed and set aside. The appeal is allowed in terms of the above order with costs.
S. B. SHUKRE, J joshi ::: Uploaded on - 14/07/2017 ::: Downloaded on - 28/08/2017 08:50:51 :::