Bombay High Court
Union Of India (Uoi) vs Sanjay Sampatrao Gaikwad Etc. on 27 February, 2002
Equivalent citations: 2004ACJ434, AIR2002BOM436, 2002(6)BOMCR391, AIR 2002 BOMBAY 436, (2002) 3 TAC 776, (2004) 1 ACJ 434, (2002) 6 BOM CR 391
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT
1. The appellants are the original respondents aggrieved by the Judgment and Order of the Railway Claims Tribunal at Mumbal passed on 25-7-2001 and 26-7-2001 respectively in the above two separate claim applications filed by the present Respondents in the above First Appeals. The parties will be referred to as the Appellants-Railways and the Applicant-passenger for the sake of convenience.
2. In view of the public importance of the issue involved in these matters instead of hearing the applications for interim orders and keeping the appeals in the cold storage of this Court I thought it proper and better to hear the Appeals finally and dispose of the same by consent of the learned Advocates appearing for the parties. As the issue Involved is common in both the appeals they are being disposed of by the present common judgment.
3. I have heard both the learned Advocates. Shri Samant for the Appellants-Railways and Shri C.M. Jha and Shri Mohan Rao for Respondents in the above matters respectively. In view of the importance of the issue and particularly the involvement of the public that would be finally affected both Shri Jha and Shri Mohan Rao have assisted the Court ably. Shri Samant has also fairly confined himself to the law points which have arisen in this matter and he has not canvassed any point beyond the pleadings and the law.
4. The dispute in both the appeals has arisen as under :
It is not material on what dates the alleged incident in both the appeals had taken place. The dates are different in both the appeals as correctly mentioned in the synopsis filed by the Appellants-Railways. The nature of the incident is similar. On two different dates the Respondents-passengers at two different point of times were travelling by two different Passenger Mail Trains. As far as the Respondent-passenger in the First Appeal No. 177 of 2002 is concerned there is a dispute whether he was a "bona fide passenger" or not. In respect of the second Appeal however, there is no dispute about the Respondent-Passenger being a "bona fide passenger". However, I am not entering into that controversy in these matters at this stage. However, there is no dispute in respect of the injury sustained by both the Respondent-passengers. Both were injured during their journey in the train when they were hit by two different stones at two different point of time. There is no dispute that the stones were thrown from outside the trains as a result of which the said passengers sustained injuries. Both were taken to hospital for treatment and were discharged after proper treatment at the instance of the Railways.
The Respondent-passengers filed a claim for compensation with the Railway Claims Tribunal at Mumbai claiming compensation for the injury sustained by them and claiming also reimbursement of the medical expenses and interest. The Appellants-Railways contested the claim by filing their written statements in both these matters. Oral and documentary evidence was adduced on behalf of both the parties. The learned Member of the Railway Claims Tribunal by the impugned Judgment awarded compensation and reimbursement of medical expenses and also interest at the rate of 9% on the whole amount granted by the Tribunal with effect from the date of application. In First Appeal No. 177 of 2002 the Tribunal has granted a total sum of Rs. 97,948/- with interest at the rate of 9% from the date of application and costs. In the case of First Appeal No. 180 of 2002 the learned Members have awarded total compensation of Rs. 1,22,753/- Including the medical expenses with interest at the rate of 9% p.a. from the date of the application with costs.
5. The Appellants-Railways are seriously aggrieved by the aforesaid orders of the Tribunal. Shri Samant the learned Counsel for the Appellants-Railways has summarised his attack on the impugned order as under :
(a) The incident of throwing of stone from outside the train hitting the passenger travelling by the train does not amount to an untoward incident as defined under Section 123(c) of the Railways Act, 1989, and therefore, the Railways are not liable to make payment of any compensation for the said incident as same is not within the four corners of the Act.
(b) The Tribunal cannot award any medical expenses for the alleged incident in the above matters and the Railways are not liable to reimburse the medical expenses incurred by the alleged victim.
(c) The Tribunal cannot grant interest on the amount of compensation from the date of the above applications i.e. prior to the date of decision or the order determining the amount of compensation.
6. Shri Jha and Shri Mohan Rao both have supported the Judgments of the Tribunal, awarding compensation, reimbursement of the medical expenses and award of interest from the date of the application. Both have submitted that the Act is a beneficial legislation enacted in the interest of passengers, and therefore, a liberal approach should be adopted by this Court while considering the definition of untoward incident and also while considering the grant of medical expenses and interest. According to both the learned Advocates it was not the fault of the passengers who sustained the injuries on account of the stones thrown at the running train. It was the entire responsibility of the Railways to protect the bona fide passengers. Both have pointed out that the Railways have levied safety charges on the passengers in the ticket fare. Both have pointed out that the Railways get reimbursement from the Insurance Company as all the passengers are insured with the Insurance Company. In both the cases the stones had hit the eyes of the victims, and in the First Appeal No. 177 of 2002 the passenger lost 60% of vision in one eye while in the case of Appeal No. 180 of 2002 the victim claimed injuries to the extent of 95% but the Tribunal had granted compensation to the extent of 40% on account of injuries to his left eye.
7. In the First Appeal No. 177 of 2002 the Respondent-passenger was travelling on a Privilege Pass granted by the Railways as he was a Railway servant. He was holding the pass for to and fro journey from Okhala (Gujarat) to Kolhapur. While returning from Kolhapur he had taken a break in the journey which was not in accordance with the prescribed rules. Shri Samant has, therefore, laid his finger on the rule and condition of the pass that if the break In the journey on such a privilege pass takes place in contravention of the prescribed condition, the journey after the break, the passenger holding such pass ceases to be a bona fide passenger. Shri Samant has also pointed out as the incident had taken place after such a break in the journey during which the passenger had ceased to be a bona fide passenger, the Railways are not liable to pay any compensation, if at all it would be held that the stone throwing was covered under the definition of the untoward incident. This is the only differences between the two cases. The Tribunal has held in the case of the break journey that any breach of such condition would only attract a disciplinary action against the pass holder and Railways cannot avoid payment of compensation on that ground. As I have already mentioned that I am not entering into that controversy and, therefore, I am not making any comments on the findings made by the Tribunal in this respect.
8. Shri Jha as well as Shri Mohan Rao have relied on a number of authorities in respect of their contentions. Since the incident of stone throwing by a miscreant or by a stranger from outside the train injuring a passenger travelling by the train is of a peculiar nature, I would first address myself to the said issue on the basis of the specific provisions of the Act, and thereafter, I would discuss the decisions cited by both the learned Advocates.
9. We are mainly concerned with three sections in the Act, viz. Sections 123, 124-A and 127. Section 123 defines what is an accident and who are the dependants in subsections (a) and (b) respectively. Sub-section (c) is the material section which I have reproduced below. It defines "untoward incident" as under :
(c) "untoward incident" means-
(1)(i) the commission of a terrorist act within the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place' within the precincts of a railway station; or (2) the accidental failing of any passenger from a train carrying passengers.
Section 124A casts liability for compensation on account of untoward incident. It would be relevant for our purpose to refer the said Section also-
124A. Compensation on account of untoward incident. -- When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident.
Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to -
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.
Explanation-- For the purposes of this section, "passenger" includes-
(i) a railway servant on duty; and
ii) a person who has purchased a valid ticket for travelling, by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.
Section 127 empowers the Claims Tribunal to determine the compensation payable in respect of the injury. For the purpose of considering the contention of the Railways in respect of award of interest this Section would also be necessary to be reproduced-
127. Determination of compensation in respect of any injury or loss of goods.-- (1) Subject to such rules as may be made, the rates of compensation payable in respect of any injury shall be determined by the Claims Tribunal.
(2) The compensation payable in respect of any loss of goods shall be such as the Claims Tribunal may, having regard to the circumstances of the case, determine to be reasonable.
10. The sub-clause 123(c) was engrafted by an amendment in the Act in the year 1994 to meet the extraordinary situation developing on account of tremendous increase in the undesirable activities subjecting the passengers to a grave risk and uncertain journey. The passengers were and are always under an apprehension about the safety and security during the course of the journey. It is to the credit of our Railways that they arc trying to manage the unmanageable load on the tracks. There is no doubt in my mind that the Railway Administration is trying to provide to the passengers as far as possible the comfort and convenience to the reasonable expectation of the ordinary passengers. I am fully conscious of the fact that our people have very high expectations from the Railway Administration regardless of the extremely heavy burden and load on the Railways. It however, does not mean that everything is alright in the Railway Administration. I am only mentioning the efforts made by our Railway Administration to cope-up with the ever increasing load on the Railways. In their anxiety to meet certain serious incidents the Legislature has inserted the above provision under the subtitle "untoward incident". The Legislature appears to have never intended that the term "untoward incident" to be a "hold all" to put in every incident taking place during the journey of the train. It is significant to note that the Legislature has strictly defined the untoward incident as to what it means. The definition by itself is a restrictive and not inclusive or expansive. We cannot read in this definition anything which is an untoward event which takes place during the course of a journey and on the passengers of the Railways. The Legislature has chosen the word "means" and not includes. The Legislature very well knows the difference between the verbs "include" and "mean". The Legislature has appropriately used both the verbs in the Section 2 of the Act. At places Legislature has restricted the meaning of a word or term by use of verb "means" and at places it used the verb "includes" to convey the interpretation to expand the meaning in the context of a situation. While defining the untoward incident the Legislature has deliberately used the word means and not the word "includes". We, therefore, have to restrict the meaning given to the said term untoward incident as specifically prescribed therein. Section 123(c)(i) spells out as an untoward incident, "the Commission of Terrorist Act within the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987". It is, therefore, clear that any such act which would attract the said act would definitely get the meaning of untoward incident. The second class is the making of "a violent attack or the commission of robbery or dacoity". If such event takes place within the precincts of the Railways it would amount to an untoward incident attracting Section 124A of the Act for payment of compensation. The third category of acts to be put in the meaning of "untoward incident" is "indulging in rioting, shoot-out or arson". The aforesaid three acts would amount to an untoward incident committed by any person on any train carrying passengers or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station. The second limb of the definition is given in Sub-section (2) of Section 123 i.e. the accidental falling of any passenger from a train carrying passengers would also amount to an untoward incident with which we are presently not concerned.
11. In my humble opinion the reading of the definition does not permit the Courts to include any event of incident which might appear to be an untoward incident in the common parlance. The definition is not an inclusive definition but it is exhaustive. We, therefore, cannot put in the basket of this definition every thing which is untoward. The definition is excluding other incidents which might apparently be untoward. The Legislature has included only four categories of the incidents and nothing more can be read in the said definition. The Courts are to interpret and not to legislate. We cannot read in the said definition any other incident by putting it in the bracket of untoward incident outside the purview of the said definition.
12. Applying the aforesaid principle of interpretation we have to test whether the alleged incident of stone throwing by an outsider at the train injuring the passengers amounts to an untoward incident under Section 123C of the Act. In the common understanding it would be said that it is an untoward incident. The legislature was wry well aware of the every kind of undesirable and untoward activities which are taking place in the trains and on the precincts of the Railways. The Legislature could very well visualise from its rich experience of the working of the Railways for so many years to enlarge the definition by using the usual verb "include" and not using verb indicating the exhaustiveness of the definition. The Legislature has certainly communicated what it wants to compensate for. It did not want to compensate for all and every kind of untoward incident taking place in the trains or in the precincts of the Railways. The Legislature has chosen the events or activities which had taken place frequently during the period of its large working. The Legislature has selected four categories of the untoward incident. These are the common incidents which had taken place in the course of journey in the train or in the precincts of the Railways. The stone throwing by an outsider on the train certainly is not an act of a terrorist as defined in the TADA. It also does not amount to a violent attack or the commission of robbery or dacoity. The Legislature has contemplated a violent attack which can be equated with the corn-mission of robbery or dacoity. Such events do take place very often within the four corners of the Railway compartments or the precincts of the Railways. By no stretch of imagination I can include in this class a stone thrown by a boy standing outside the Railways or even a miscreant at a running train for the sake of fun or out of pervert mentality to cause Injury to others for nothing.
13. It is very unfortunate that the Railway tracks are surrounded by crowded slums in this metropolis. People have no place or no room and, therefore, they squat near the railway tracks. The Railway administration no doubt is guilty of gross negligence in allowing such slums to grow near the tracks though however, I will not blame the Railway administration alone for such inaction as the politicians are equally responsible, as such slums for them are huge vote banks. It is a common experience in this City that whenever the Railway Administration had tried to remove the slums which were close to the railway tracks the politicians have intervened and obstructed the work of the railways at the risk of the lives of the children of the slum dwellers. We have seen poor and innocent children being crushed under the running trains as the tracks are used by these people as a play ground or as an open toilet. Any one who is familiar with the train journey through out this city at any hour of the day and night would certainly not be able to escape such untoward scenes. The Legislature very well knew all these untoward scenes in the city of Bombay and even other large cities as the peoples representatives also travel by these very trains.
14. The third act which is included in the definition is of indulging in rioting, shoot-out or arson. I don't have to spend any space to say that a stone thrown at the train by an outsider cannot be included as rioting, shoot-out or arson. The fourth event which is included in the definition is accidental falling of any passenger from a train carrying the passengers. Again I don't have to spend any logic by saying that the stone throwing incident does not amount to the accidental falling of any passenger.
15. Analysing the definition of untoward incident from any angle or in any manner I am not able to put in the said definition the act of an outsider or a stranger of throwing of a stone at the train running or stand still injuring any passenger. In my considered opinion such an event though a very unfortunate event cannot be put in the tight jacket of untoward incident which is lightly defined by the Legislature to include only four events in the luggage of the definition of untoward incident. According to me, therefore, the incident of throwing of stone at the passengers in the present Appeals does not amount to an untoward incident to attract Section 124A of the Act for which the Appellant-Railways can be made liable to pay compensation. I fail to understand how the Railways can be held for a stone thrown by an outsider at the running train or a standstill train? If the miscreant can be ought he can be punished in accordance with the criminal law of this Country. Shri Jha has fairly pointed out that such miscreants can also be punished under this Act also. It is an uphill task for the Railway Administration to guard or man every point of its huge and large tracks in this country. No police or army can be posted at every point of the tracks to prevent throwing of the stones. It is for the people and the society to see that no stones are thrown at others including the trains. The railways cannot be held liable or responsible for the uncivic sense of the society. The Railways are manning thousands of miles of track. It is not expected to man the entire track to prevent stone throwing at the passengers in the train. It would, however, be entirely different situation whether there is a riot or arson during which period miscreants and antisocial elements throw stones at the trains and cause damage to the railway property. If such a situation arises that has been taken care of by the Legislature by inserting Clause (II) in Section 123(1) "rioting and arson". In such an extraordinary situation the State is expected to handle the law and order problem and if during such situation the passengers get injured that would certainly be considered as untoward incident as that would be covered by Section 123(1)(ii) but a stray incident of stone throwing cannot be considered as untoward incident against which the Railways cannot be expected to take any precaution. It would be totally unreasonable to expect the railways to guard against such incidents of stone throwing at the train. Though the safe and secure journey of passengers is an implied term of contract between the Railway Administration and the bona fide passenger and though the Railway Administration is strictly responsible to carry them to the agreed, destination absolutely safely, it has its own inherent limitations. Even the doctrine of "strict liability" has exceptions as stipulated judicially. Railway journey cannot be equated with and certainly not as hazardous or as dangerous as an open live wire transmitting electricity power for which the Electricity Board is held absolutely and strictly liable for any mishap. Though even in the doctrine of strict liability "an ,act of a stranger" is made an exception, the Supreme Court has not allowed such an exception in the case of a live open electricity wire. The Supreme Court has in the case of M.P. Electricity Board v. Shail Kumar, observed as under (at page 553; of AIR) :
8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence of carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the ac-'tion is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
9. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher, (1868) Law Reports (3) HL 330, Blackburn J., the author of the said rule had observed thus in the said decision:
"The Rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does so he is prima facie answerable for all the damage which is the natural consequences of its escape."
10. There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions baring one which is this "Act of stranger i.e. if the escape was caused by the unforceable act of a stranger, the rule does not apply."
(Vide page 585 Winfield on Tort, 15th Edn.)
11. The rule of strict liability has been approved and followed in many subsequent decisions in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Pic., 1994 (1) All England Law Reports (HL) 53. The said principles gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu v. Union of India, and a Division Bench in Gujarat State Road Transport Corpn. v. Ramanbhai Prabhatbhai, had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd., .
12. In M.C. Mehta v. Union of India, this Court has gone even beyond the rule of strict liability by holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident, such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher."
It would certainly be useful to reproduce the observations of the Supreme Court in the above Judgment Kaushnuma Begum v. New India Assurance Co. Ltd., particularly for the reason that the seven exception to the doctrine of strict liability are discussed by the Supreme Court at Page 488, of AIR.
12. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the rule in Rylands v. Fletcher can apply in motor accident cases. The said rule is summarised by Blackburn, J., thus:
"The true rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so he is prima facie answerable for all the damage which is the natural consequences of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default, or, perhaps, that the escape was the consequence of vis major, or the act of God, but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."
13. The House of Lords considered it and upheld the ratio with the following dictum:
"We think that the true rule of law is that the person who. for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape, he can excuse himself by showing that the escape was owing to the plaintiffs default, or, perhaps, that the escape was the consequence of vis major, or the act of God, but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."
14. The above rule eventually gained approval in a large number of decisions rendered by Courts in England and abroad. Winfield on Tort has brought out even a chapter on the "Rule in Rylands v. Fletcher". At p. 543 of the 15th Edn. of the celebrated work the learned author has pointed Out that "over the years Rylands v. Fletcher has been applied to a remarkable variety of things: fire, gas, explosions, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetation."
He has elaborated seven defences recognised in common law against action brought on the strength of the rule in Rylands v. Fletcher. They are :
(1) Consent of the plaintiff i.e. volenti non fit injuria.
(2) Common benefit i.e. where the source of the danger is maintained for the common benefit of the plaintiff and the defendant, the defendant is not liable for its escape.
(3) Act of strange i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply.
(4) Exercise of statutory authority i.e. the rule will stand excluded either when the act was done under a statutory duty or when a statute provides otherwise.
(5) Act of God or vis major i.e. circumstances which no human foresight, can provide against and of which human prudence is not bound to recognize the possibility.
(6) Default of the plaintiff i.e. if the damage is caused solely by the act or default of" the plaintiff himself, the rule will not apply.
(7) Remoteness of consequences i.e. the rule cannot be applied ad infinitum, because even according to the formulation of the rule made by Blackburn, J., the defendant is answerable only for all the damage "which is the natural consequences of its escape."
15. The Rule in Rylands v. Fletcher has been referred to by this Court in a number of decisions. While dealing with the liability of industries engaged in hazardous or dangerous activities P.N. Bhagwati, C. J., speaking for the Constitution Bench in M. C. Mehta v. Union of India expressed the view that there is no necessity to bank on the rule in Rylands v. Fletcher. What the learned Judge observed is this: {SCC p. 420 para 31):
"We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy, we cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order."
16. It is pertinent to point out that the Constitution Bench did not disapprove the rule. On the contrary, learned Judges further said that "we are certainly prepared to receive light from whatever source it comes". It means that the Constitution Bench did not foreclose the application of the rule as a legal proposition."
16. The precis of the above discussion is that an act of stranger is made an exception even to the doctrine of strict liability of the owner. It would therefore be clear that the Railway Administration cannot be held responsible for the injury sustained by its passenger on account of a stone thrown by an outsider from the outside of the train and therefore the Railway Administration cannot be held liable to pay compensation for the act of a stranger who threw the stone at the train and at the passenger on the Railway precincts as such an incident does not fall within the definition of "untoward incident" under Section 123C of the Act.
17. The Tribunal has also awarded interest from the date of application in both the appeals. The compensation claimed by the applicants has to be determined under Section 127 of the Act. It does not become payable as soon as the claim is lodged by the applicant-passenger, The claim for compensation is in the form of damages and till the damages are ascertained by the appropriate forum it cannot be said that it is an amount of compensation payable till it is determined or decided. It is not an existing right of the claimant to get whatever is claimed in his application. The amount of compensation becomes payable after it is determined by the Tribunal and if thereafter the Railways fail to pay it can be directed to pay interest from the date of the order of determination but it cannot be directed to pay interest before the claim is ascertained or decided or determined by the Tribunal. The liability of the Railway Administration would commence after the compensation amount is determined and not therefore.
18. The following observations of the Chief Justice M.C. Chagla, as then he was, in the Judgment of Iron and Hardware (India) Co. v. Shamlal & Bros., 1904 (6) Bom LR 473 are aptly applicable even in the present case;
"Before it could be said of a claim that it is a debt, the Court must be satisfied that there is a pecuniary liability upon the person against whom the claim is made, and the question is whether in law a person who commits a breach of contract becomes pecuniarily liable to the other party to the contract. In my opinion it would not be true to say that a person who commits a breach of the contract incurs any pecuniary liability, now would it be true to say that the other party to the contract who complains of the breach has any amount due to him from the other party. As already stated, the only right which he has is the right to go to a Court of law and recover damages. Now, damages are the compensation which a Court of law gives to a party for the injury which he has sustained. But, and this is most important to note, he does not get damages or compensation by reason of any existing obligation on the part of the person who has committed the breach. He gets compensation as a result of the fiat of the Court. Therefore, no pecuniary liability arises till the Court has determined that the party complaining of the breach is entitled to damages. Therefore, when damages are assessed, it would not be true to say that what the Court is doing is ascertaining a pecuniary liability which already existed. The Court in the first place must decide that the defendant is liable and then it proceeds to assess what that liability is. But till that determination there is no liability at all upon the defendant. The expression "to be ascertained" may well apply to a case which I have indicated earlier where the pecuniary liability cannot be ascertained without accounts being taken or some other process being gone through. But the whole basis of a suit for damages is that at the date of the suit there is no pecuniary liability upon the defendant and the plaintiff has come to Court in order to establish a pecuniary liability."
It, therefore, cannot be said that as soon as the accident takes place the liability to pay compensation or damages is fastened on the Railway. The liability is to be determined and decided by the Court of law and thereafter only the pecuniary liability to pay compensation is fixed on the railways. The interest in such cases cannot be awarded prior to the determination of the amount of compensation and prior to deciding whether the railways are liable to pay the damages or compensation. At the first instance the Tribunal has to determine the question of liability and then to determine the amount of compensation. After doing so it can award interest from the date of the decision but not prior thereto. It would be for the Tribunal to decide whether to grant interest and the rate of interest, if any. But it would be from the date of its decision and not prior thereto whether the applicant prays for interest or does not pray for interest. I therefore quash and set aside the Judgment and order of the Tribunal awarding the interest from the date of application. The Railway Administration has to pay interest if awarded by the Tribunal from the date of the determination of the Compensation under S. 127 of the Act. In the present case in view of my finding on the issue of liability to pay compensation there is no question of payment of interest would be survive.
19. The Tribunal has also awarded and has reimbursed the medical expenses to the victims in both the appeals. There is absolutely no doubt that the victims were seriously injured and both of them have lost their vision in one eye each. It is the most important and valuable part of a human being, for that matter every human organ is equally important and there is no organ in the human body which can be termed useless or without any utility. These passengers have lost their perfect eye sight by loss of one eye each to whatever extent medically determined. It was not their fault that they were travelling by the trains. If they were caught in such a situation it is the duty of the railways to take every care to attend them medically and to provide every medical treatment till they are cured. I, therefore, hold that the Railway Administration is responsible and is liable to treat every injured passenger while travelling or within the Railway precincts. It must bear all the medical expenses incurred by the injured passenger. I therefore direct the General Manager of the Railways to provide for reimbursement of the medical expenses incurred by the victims In such cases. I am, therefore, not inclined to quash and set aside the relief granted by the Tribunal to the extent of medical reimbursement in both these cases. The General Manager and the Railways shall consider as a matter of principle that such victims must be provided every medical aid and treatment till they are cured and not only first medical aid. Shri Samant has fairly made a statement that he would request the General Manager to pay the medical expenses as awarded by the Tribunal to the Applicants in the present case within four weeks from the receipt of a copy of this order. The General Manager shall act on an ordinary copy of this order duly authenticated by the Sheristedar of this Court.
20. Shri Mohan Rao has cited a decision of the Full Bench of the Allahabad High Court reported in AIR 1984 All 227, Smt. Sundri v. Union of India. The ratio in the said judgment does not apply to the facts of the present case. In the present.case there is no dispute that the applicants were bona fide passengers and were not trespassers and were not travelling without pass or ticket authority. This decision does not help Shri Mohan Rao at all. Shri Mohan Rao has also cited a Judgment of Kerala High Court, , Shanmughan v. Union of India. The facts in the present case are totally different and therefore, the ratio of the said judgment is not applicable to our case. Shri Mohan Rao has also relied on a Judgment of the Supreme Court of India, , A. A. Haja Muniuddin v. Indian Railways. The point before the Supreme Court was entirely different and therefore even this judgment of the Supreme Court cannot help Shri Mohan Rao in the present case. Shri Mohan Rao has also sought support from another judgment of the Supreme Court, reported in 1999 ACJ 1299, Dr. (Mrs.) K. R. Tandon v. Om Prakash on the point of interest. The said judgment of the Supreme Court is not applicable in the present case as there is no provision in the Act to grant interest from any date either from the date of application or from the date of incident or even from the date of decision. There is a specific provision in the Motor Vehicles Act, 1984 for award of interest. The ratio of the said judgment therefore cannot be applied in the present case under the Railways Act. Shri Mohan Rao has also relied on a judgment of Kerala High Court, reported in 1998 ACJ 701, C. Linge Gowda v. Union of India, on the question of medical treatment. Since I have already allowed reimbursement of medical expenses it is not necessary for me to refer the same.
21. Shri Jha has relied on Supreme Court Judgment in the case of Renu Bala Kalita v. Dhiren Chakravarty, reported in 1999 ACJ 1124 and 2001 ACJ 508 : (2001 AIHC 294), S. Parvathi v. R. Pandurangasetty. It was the case under the Motors Vehicles Act wherein award of interest is provided for. In the present enactment there is no such provision for payment of interest. I have however allowed interest applying the principal of Section 34 of C.P.C. from the date of the decision. Shri Jha has also tried to draw support from the judgment of Supreme Court, , Union of India v. Sunil Kumar Ghosh. That case was squarely covered by the "untoward incident" of passenger falling down and receiving injury, it is therefore not applicable to the present case. In the next case relied on by Shri Jha, reported in AIR 2000 Andh Pra 53, The General Manager, South Central Railway v. K. Narayana Rao. It was again a case of passenger falling down from the train. Shri Jha has relied on a judgment of Supreme Court in the case of P. A. Narayanan v. Union of India, . In the said case the Supreme Court has found the Railways liable to pay compensation as the guard and motorman failed to stop the running train in spite of ringing of alarm when the deceased was robbed and assaulted while travelling in the local train. In the case before the Supreme Court the Railways were found to be negligent. It was their duty to stop the train when the alarm chain was pulled by the passenger in difficulty. It was the case of robbery/ dacoity in the running train and further it was the whole responsibility of the guard and motorman to have stopped the train after the alarm was given. In these circumstances the Supreme Court had awarded compensation. In the present case there is absolutely no one from the Railways who is to be blamed for the stone thrown by any miscreant or any outsider on the train or on the passenger. There was no charge of negligence or casual approach of the Railway servants and there could not have been any, as the stone was thrown by an outsider stranger on the running train. The ratio of the said judgment of the Supreme Court is also not applicable at all to the present situation. Shri Jha has also cited a judgment of the Allahabad High Court, , Union of India v. B. K. Ojha. The points and the facts in the said case are totally different and same are not at all applicable In the present case. In the next judgment cited by Shri Jha, reported in 2001 ACJ 871 : (AIR 2000 Orissa 147), Union of India represented by General Manager, Eastern Railway v. Jshna Kanhar, there was no case of untoward incident of fall of the passenger from the running train. It is squarely covered by Section 124A of Act which covers such a situation. Shri Jha has drawn support from another judgment of Kerala High Court, , Union of India v. Aleykutty Devasia, where one passenger was killed by another while travelling in train by strangulation. The facts in that case were that while inside the train one passenger had committed an violent attack on the other one and such a situation is covered by the definition of untoward incident contemplated in Section 123(c)(ii). Both the passengers were inside the train and the untoward incident is squarely covered by the aforesaid provision.
22. None of the advocates has cited any binding precedent which could squarely apply to the case of a throwing of a stone on the train by an outsider stranger. I have referred to the aforesaid judgments as both the learned Advocate had taken pains to cite those judgments but unfortunately none of the judgments helps them in the present situation.
23. In these circumstances both the appeals are allowed to the extent of compensation and interest. As far as the reimbursement of medical expenses is concerned I have directed the Appellants to pay the same as per the direction of the Tribunal. No order as to costs. Certified copy is expedited.