Jharkhand High Court
Phaku Mian Son Of Late Md. Tatar Ali vs Union Of India Represented By General ... on 20 April, 2018
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
M.A. No.48 of 2012
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.48 of 2012
1. Phaku Mian son of Late Md. Tatar Ali
2. Nurasa Khatoon wife of Phaku Mian
3. Nurjahan Khatoon, Minor, represented by her Natural Guardian
Mother Nurasa Khatoon.
All residents of Sultan nagar, P.O. & P.S. Chas District Bokaro,
Jharkhand. .... .... .... Appellants
Versus
Union of India Represented by General Manager Eastern Railway,
Kolkata 17, Netaji Subhas Road, P.O., G.P.O P.S. Harestreet, Kolkata-
700001. .... .... .... Respondent
For the Appellants : Mr. Basav Chatterjee, Advocate Mr. Rajesh Kr. Jha, Advocate For the Respondent : Mr. Vijay Kr. Sinha, (A.S.C.) Railway Mr. Ram Nivas Roy, Advocate PRESENT HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court :-
Heard the parties.
2. This Miscellaneous Appeal is directed against the judgment/ award dated 03.01.2012 passed in case no. TAU/RNC/2001/0018 by the Railway Claims Tribunal, Ranchi Bench, whereby and whereunder the claim for compensation has been dismissed.
3. The case of the applicants-appellants in brief is that the deceased Raju Ansari was travelling in the train No.8605 Up (Jharkhand Express) on 28.03.2001 along with his family members including his father- who has been examined as A.W.-1, his cousin- who has been examined as A.W.-2, the wife and daughter of A.W.-2 with a common ticket. The common original journey ticket has been marked Ext.A5. Raju with others was travelling from Bokaro Steel City to New Delhi as bona fide passengers and while so travelling the deceased Raju Ansari accidentally fell down from the running train between Parasnath Railway Station and Koderma Railway Station and sustained injuries. Raju succumbed to the injuries sustained due to the said accidental fall. Before the Railway Claims Tribunal, the respondent filed its written 1 M.A. No.48 of 2012 statement wherein it was pleaded that as per the Fardbeyan, the deceased Raju Ansari went to the gate to spit and his head hit a pole and he fell down. On the basis of the rival pleadings, the tribunal framed the following issues:-
Issues
1. Was the death of Raju Ansari because he accidentally fell from Jharkhand Express on 28.03.2001?
2. Was he a passenger of the said train?
3. Reliefs?
4. In support of their case, the applicants-appellants altogether examined two witnesses namely Phaku Mian, examined as A.W.-1, who was the father of the deceased and Mohammad Nasim, examined as A.W.-2, who was the cousin of the deceased. Besides the oral testimony, the appellants also proved the copy of F.I.R. which was marked as Ext. A1, Final Report which was marked as Ext. A2, Inquest Report was marked as Ext. A3, Postmortem report of the dead body of the deceased was marked as Ext. A4 and the Original Journey Ticket of the deceased along with other co-passengers which was marked as Ext. A5. But the respondent neither examined any witness nor proved any document.
5. The Railway Claims Tribunal in the impugned judgment presumed that stretching the head through the door can alone be the reason for the hit and came to a conclusion that the death happened due to self-inflicted injury which is covered in exception (b) of Section 124 A of the Railways Act and dismissed the claim application.
6. Mr. Basav Chatterjee, the learned counsel for the appellants submits that the Tribunal erred in not appreciating the evidence in the record in its proper perspective and also submitted that the findings of the Tribunal that the death happened due to self-inflicted injury is based on presumption. It is submitted by the learned counsel for the appellants that the Tribunal failed to appreciate that the provisions for compensation in the Railways Act is a beneficial piece of legislation and it should receive a liberal and wider interpretation and not a narrow and technical one. In support of his contention learned counsel for the appellants relied upon the judgment of the Hon'ble Supreme Court of India in the case of Union of India Versus 2 M.A. No.48 of 2012 Prabhakaran Vijaya Kumar & Others reported in (2008) 9 SCC 527, wherein the Hon'ble Supreme Court has held in paragraphs- 8, 11 and 14 which read as under:-
8. "However, the evidence of DW 1, D. Sajjan, who was the Station Master at the railway station corroborates the evidence of PW 2. DW 1 had deposed that he saw one girl running towards the train and trying to enter the train and she fell down. He has further stated that the deceased Abja had attempted to board the train and fell down from the running train. For this reason, the Tribunal held that this was not an "untoward incident" within the meaning of the expression in Section 123(c) of the Railways Act, 1989 as it was not an accidental falling of a passenger from a train carrying passengers."
11. "No doubt, it is possible that two interpretations can be given to the expression "accidental falling of a passenger from a train carrying passengers", the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one. Hence, in our opinion the latter of the abovementioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred vide Kunal Singh v. Union of India (SCC para 9), B.D. Shetty v. Ceat Ltd. (SCC para 12) and Transport Corpn. of India v. ESI Corpn."
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 railway passengers from getting compensation in railway accidents. It is well known that in our county 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 a passenger from a train carrying passengers" includes when a bona fide 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 purposive and not literal interpretation should be given to the expression." (Emphasis Supplied)
7. Learned counsel for the appellants further relied upon the judgment 3 M.A. No.48 of 2012 of Hon'ble Supreme Court of India in the case of Jameela and Others Versus Union of India reported in (2010) 12 SCC 443 wherein the Hon'ble Supreme Court has held in paragraphs-7, 10, 11 and 12 as under:-
7. "We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under Section 124-A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railways that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness to the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railways that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under Section 124-A of the Act."
10. "It is not denied by the Railways that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a "passenger" for the purpose of Section 124-A as clarified by the Explanation. It is now to be seen, that under Section 124-A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the Railway Administration. But the proviso to the section says that the Railway Administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in clauses (a) to (e)."
11. "Coming back to the case in hand, it is not the case of the Railways that the death of M. Hafeez was a case of suicide or a result of self-
inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental."
12. "The manner in which the accident is sought to be reconstructed by the Railways, that the deceased was standing at the open door of the train compartment from where he fell down, is called by the Railways itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to Section 124-A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the Railways must fail even after assuming everything in its favour." (Emphasis Supplied)
8. Learned counsel for the appellants further submits that though the claim application was filed seeking compensation of Rs.4,00,000/- but in view of the judgment of the Hon'ble Supreme Court of India passed in the 4 M.A. No.48 of 2012 case of Rathi Menon Versus Union of India (2001) 3 SCC 714 wherein the Hon'ble Supreme Court of India has elaborately discussed the circumstances and the reasons for payment of enhanced compensation in terms of the Railways Accident and Untoward Incident (Compensation) Amendment Rules, 2016 and observed that the value of money to be paid as compensation will not be same after the lapse of several years because the purchasing power of the money decreases on account of rise in cost of living due to rise in prices of commodities.
9. It is further submitted by the learned counsel for the appellants that the ratio laid down in the case of Rathi Menon (supra) has been reiterated by the Supreme Court of India in the case of N. Parameswaran Pillai And Another Versus Union of India & Another reported in (2002) 4 SCC 306 whose paragraphs-28 and 29 read as under:-
28. "The Central Government while changing the figures in compensation amount after an interval of a decade was only influenced by the desire to update the money value of the compensation. In other words, what you were to pay ten years ago to one person cannot be the same if it is paid today in the same figure of currency notes. It is for the purpose for meeting the reality that the Central Government changed the figures."
29. "The unjust consequence resulting from the interpretation which the Division Bench placed can be demonstrated in another plane also. If a persons who sustained injury in a railway accident or in an untoward incident was disabled from making an application immediately and he makes the application a few years hence, is he to get the compensation in terms of the money value which prevailed on the date of the accident? Suppose a Tribunal wrongly dismissed a claim after a few years of filing the application and the claimant approaches the High Court in appeal. As it happens quite often now, some High Courts could take up such an appeal only after the lapse of many years and if the appeal is decided in favour of the claimant after so many years, what a pity if the amount awarded is only in terms of the figure indicated on the date of the accident."
10. Further, learned counsel for the appellants relied upon the judgment of a co-ordinate Bench of this court in the case of Sri Dharnidhar Sharma Versus The Union of India vide order dated 08.12.2017 in M.A. No. 267 of 2010, wherein the Hon'ble Single Judge of this court directed payment of enhanced compensation amount of Rs.8,00,000/- with interest @ 9 per annum relying upon the judgment of Rathi Menon (supra) whose paragraph-13 5 M.A. No.48 of 2012 reads as under:-
13. "The appellant's claim for the compensation was based on Section 124-A of the Railways Act, 1989 (for short "the Act"). The said section itself was introduced as per Railway (Amendment) Act 28 of 1994. The section provided for awarding compensation to victims of any "untoward incident" which occurs in the course of working of a railway. The expression "untoward incident" was alien to the Railways Act before Parliament inserted such an expression in the statute as per the Amendment Act 28 of 1994. Prior to it the Railways could have granted compensation only to the victims of an "accident". As the definition of accident in the Act did not embrace instances of other types of disasters which frequently happened during train journeys, Parliament, in its wisdom, decided to insert a new category of disasters, both man-made and otherwise, to be the causes of action for claiming compensation."
11. Hence, it is submitted by the learned counsel for the appellants that the impugned judgment of the Railway Claims Tribunal be set aside and the respondent be directed to pay enhanced compensation of Rs.8,00,000/- in terms of the amended provision of Railways Accident and Untoward Incident (Compensation) Amendment Rules, 2016 from the date of the filing of claim application with interest @ 9 per annum within a specified time.
12. Mr. Vijay Kumar Sinha, learned additional counsel appearing for the respondent relied upon the judgment of Hon'ble Delhi High Court passed in FAO Case No.421 of 2012 dated 08.01.2014 (Bimla Devi and another v. Union of India) wherein in the facts and circumstances of that case is where the passenger fell down from a running superfast train. The Hon'ble Delhi High court held that the ratio of the case of Jameela and Others (supra) is not applicable in the facts and circumstances of this case. Learned counsel for the respondent further submits that the Tribunal has rightly held that the death of the deceased Raju Ansari has happened due to self-inflicted injury and this case is covered under exception (b) of Section 124 A of the Railways Act. Hence, it is submitted that there being no merits in this appeal, the same be dismissed.
13. On hearing the learned counsels for the rival parties in this case, the only point to determine in this appeal is whether the claimants/ appellants are entitled to the compensation and if yes then whether they are entitled to the enhanced compensation in the facts and circumstances of this case.
14. After perusal of the record, I found that the A.W.-1 namely Phaku Mian, being the father of the deceased in his examination in chief has 6 M.A. No.48 of 2012 categorically stated that Raju Ansari died on 28.03.2001 due to accidental fall from train No.8605 Up (Jharkhand Express) between Parasnath Railway Station and Koderma Railway Station. In his cross-examination only one question has been put to him as to whether his son was unmarried. There is absolutely no cross-examination in respect of his deposition that Raju Ansari died due to accidental fall from the running train. So, in the absence of any cross examination the portion of the testimony of A.W.1 that Raju Ansari died due to accidental fall from the running train has remained unchallenged.
15. So far as the deposition of A.W.-2 namely Mohamad Nasim is concerned, he has also stated that Raju Ansari went to the door of the compartment and he was caught by a gush of air and lost his balance due to sudden jerks he fell down from the running train and was critically injured. In his cross-examination, he has stated that he is an eye-witness to the occurrence and he pulled the chain after Raju Ansari fell down and with the help of the co-passengers the dead body of Raju Ansari was taken to guard bogie where first-aid was given and before reaching Koderma Station Raju Ansari succumbed to his injury.
16. There is no cross-examination of A.W.-2 Mohamad Nasim to dispute his testimony that Raju Ansari fell down accidentally and the said portion of his testimony has also remained unchallenged. On the other hand there is absolutely no evidence in the record put forth by the Railways either oral or documentary in support of their pleadings. So far as the judgment of Hon'ble Delhi High Court in the case of (Bimla Devi and another v. Union of India) (supra) is concerned, learned counsel for the respondent fairly submits that in this case, unlike the facts of (Bimla Devi and another v. Union of India) (supra) no railway station was near the place of occurrence nor it is the case of the Railways that the deceased went to alight from the running train and in the process he fell down. Hence, this Court is of the considered view that the ratio of (Bimla Devi and another v. Union of India) (supra) is not applicable in the facts and circumstances of this case as the facts and circumstances of this case are entirely different.
17. In view of the settled principle of law as has been held in the case of 7 M.A. No.48 of 2012 Jameela And Others (supra), Prabhakarn Vijaya Kumar And Others (supra) as well as in the case of Sri Dharnidhar Sharma (supra) as well as the facts involved in this case as discussed above, I have no hesitation in holding that the Railway Claims Tribunal, Ranchi Bench, has committed gross error in dismissing the application for compensation and this is a fit case where the appellants are entitled to compensation and that too at the enhanced rate because of the principle of law as has been settled in Rathi Menon (supra), N. Parameswaran Pillai(supra) as well as Sri Dharnidhar Sharma (supra).
18. Accordingly the respondent- Railways is directed to pay the enhanced compensation amount of Rs.8,00,000/-(Rupees Eight lakh) in terms of the amended provision of the Railways Accident and Untoward Incident (Compensation) Amendment Rules, 2016, with simple interest thereon @ 9% per annum from the date of filing of the claim application within three months from the date of receipt or production of a copy of this order.
19. Let a copy of this order be handed over to the learned counsel for the respondent/Railways for needful and the record of case no. TAU/RNC/2001/0018 be sent back to the Railway Claims Tribunal, Ranchi Bench.
20. In the result this appeal is allowed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated 20th April, 2018 AFR- Animesh/ 8