Gujarat High Court
Pravinbhai Ishwarbhai Vaghela vs Union Of India on 13 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/2204/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2204 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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PRAVINBHAI ISHWARBHAI VAGHELA
Versus
UNION OF INDIA
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Appearance:
MR UM SHASTRI(830) for the PETITIONER(s) No. 1
MS ARCHANA U AMIN(2462) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/08/2018
ORAL JUDGMENT
1. This First Appeal under Section23 of the Railway Claims Tribunal Act, 1987 [for short The Act 1987] is at the instance of the original claimant and is directed against the judgment and order dated 29/03/2017 passed by the Railway Claims Tribunal, Ahmedabad Bench Page 1 of 35 C/FA/2204/2018 JUDGMENT in the case No.OA 2015/0116.
2. By the impugned judgment and order, the Tribunal rejected the claim application filed by the appellant herein.
3. It appears from the materials on record that the appellant herein was travelling from Ahmedabad to Mahemdabad by the Vadodara Intercity Express train on 27/05/2014. It is his case that he accidentally fell down from the train on account of a sudden jerk felt by him while travelling through the Kankariya railway yard. The accident resulted in severance of one of his legs above the kneecap.
4. In such circumstances, he preferred an application under Section 16 of the Act, 1987 read with Sections124A and 125 respectively of the Railways Act, 1989 [for short The Act, 1989] for grant of compensation of Rs.4,00,000/.
5. The Tribunal framed the following issues:
1. Whether the applicant was travelling as a bonafide passenger by the train Vadodara Intercity Express on 27.05.2014?
2. Whether the applicant fell down from the train as alleged and whether the said incident can be described as an untoward incident within the meaning of Section 123(c)(2) of the Railways Act 1989 during journey by the said train?
3. What is the nature and extent of injuries sustained?
4. What order? What relief?
6. The issues framed by the Tribunal came to be answered as under: Regarding Issues No.1 & 2:
7. These two issues are taken up for consideration simultaneously Page 2 of 35 C/FA/2204/2018 JUDGMENT for the sake of convenience as they are interrelated.
8. In the instance case, the injured Applicant has disclosed in the claim application as well as in the affidavit that on 27.05.2014, he was travelling from Ahmedabad to Mahemdabad by the train Vadodara Intercity. He had purchased a valid ticket from Ahmedabad railway station for his journey to Mahemdabad which was lost in the incident. As there was heavy rush in the train, he had no option except to stand near the entrance door of the compartment. When the train reached at Kankariya yard he accidentally fell down due to sudden jerk and jolt of the train with the result his leg was cut off from above knee. He was taken to Civil Hospital for treatment. During cross examination he also reiterated that the incident occurred on 27.05.2014 at Kankariya yard. After purchasing the ticket from Kalupur, he was going to Mahemdabad and the fare of the ticket was Rs.20/. He also stated that, he was sitting in the train and he got a jolt and fell down from the train. He denied that he brought ticket for Mambail local. In the incident, the purse which he was carrying got lost along with his bag and he do not know as what happened to his ticket as he was in his sense. He also denied that, he fell down while boarding the train. He reiterated that he was sitting in the train fell down due to jolt.
Telephone Vardhi at Exh.A/1 reveals that, on 27.04.2014, Head Constable, Natwarlal, Buckle No.8380 received a message from CMO, Dr.M.T. Shaikh of Civil HospitalAhmedabad that one person named, Pravinbhai Ishwarbhai Vaghela aged about 39 years, after getting down from one train and boarding another train, sustained injuries. He was brought to the hospital by 108 Ambulance at about 16.20 hrs. for treatment. Panchnama of place of incident at Exh.A/2 shows that, one person named Pravinbhai Ishwarbhai by cste Vaghela had fallen down at Kankaria yard between Diesel Road and Signal no.S/12 at KM no.493/35. Sustained injuries on 27.05.2014 and he was admitted in the Civil Hospital for treatment. Panchnama of body conditiona at Exh.A/3 indicates that, on 27.05.2014, the patient named Pravindbhai Ishwarbhai Vaghela was travelling from Ahmedabad to Mahemdabad by Mumbai Local train and when the said train stopped at Kankariya yard due to signal problems. In the meanwhile, Vadodara Invercity was passing he immediately get down and while trying to board the Vadodara Intercity Express, he fell down and sustained injuries and his left leg was cut off from below knee. He was admitted in the Civil HospitalAhmedabad. It is also mentioned that, on search of the pocket of the cloth of the injured, nothing was found and the police has not recovered anything from the injured.
Respondent evidence, Anilkumar Suryavanshi has disclosed through affidavit that on 27.05.2014, he was on duty as a Station Master at Page 3 of 35 C/FA/2204/2018 JUDGMENT Kankariya yard railway station in shift 08:00 hrs. to 16.00 hrs. On the above date, he received a message on VHF set from Loco Pilot of train no.19130 Ahmedabad - Vadodara Intercity Express that on unknown person injured near signal no.S/2. He immediately reached the spot and also called 108 Ambulance and sent the injured person to the Hospital for treatment.
DRM in which it is indicates that, neither any travelling ticket nor any travelling authority has been recovered from the injured. Hence, the injured was not a bonafide passenger on 27.05.2014. It is further stated that as per the statement of the injured Pravinbhai Ishwarbhai Vaghela, he wanted to got to his house at Mahemdabad and he reached Kalupur station and had purchased a general ticket for Mahemdabad and paid Rs.20/ for the same. After that he boarded the Mumbai Local standing on platform no.1. After departure, when the said train stopped at Kankariya yard due to signal problems. In the meanwhile, Vadodara Invercity was passing slow behind his train, he immediately get down from the Mumabi Local and tried to board the Intercity Express but his leg slipped and could not caught the handle of the door with the result he fell down and his left leg was cut off. From the scrutiny of the documents, it appears that the injured fell down due to his own negligence. Hence, Railway Administration is not responsible for the alleged incident.
In the instance case, Counsel for the applicant also filed written arguments in which he also reiterated that while travelling near the door of the compartment of Intercity Express, the injured fell down due to jerk and jolt of the train and sustained injuries. He also mentioned that the injured had purchased the travelling ticket for his journey to Mahemdabad. Moreover, there is no eye witness of the incident.
However, on perusal of the Vardhi as well as Panchnama of Body condition and DRM report, suggest that, the incident occurred the injured while trying to board the running train Intercity Express after alighting from Mumbai Local train when the Intercity was running in slow motion at Kankariya yard, which was also admitted by the applicant in his statement recorded by the SIPF/Lankariya attached with DRM report marked at page no.1. Furthermore, the applicant claimed that he had purchased the travelling ticket but neither the said ticket was produced by him before the Tribunal nor recovered the same by the police during the search of the pocket of the cloth of the injured at the time of panchnama of body condition. Hence, the claim of the applicant that he was travelling by Intercity Express and fell down due to jerk and jolt which was not correct, because he himself admitted in his statement that he was travelling by Mumbai Local train and when the train stopped, in the meantime, Vadodara Intercity was running slowly behind his train and he immediately got down for boarding the Page 4 of 35 C/FA/2204/2018 JUDGMENT running train but he failed and fell down and sustained injuries. This act is definitely a criminal act from the part of the injured applicant. The Ld. counsel for the respondent during oral submissions argued that the said incident falls under the proviso of 124(a) to (e) and is clearly a selfinflicted injury.
From the sequence of events, it can be seen that the act of the injured in this case was totally imprudent, irrational, callous and unmindful of the consequences. All the facts and circumstances of this case show that the act of the appellant was with full knowledge of the eminent possibility of endangering his life or limb and therefore, it squarely comes within the term of selfinflicted injury defined in Section 124A provision(b) of the Act. In the said incident, the injured not only tried to get down from the train but he also tried to board the running train and therefore, lost his balance and fell down. This is clearly a reckless rash and a callous act on his part and he was well aware that this reckless behaviour on the part could result in misadventure causing him injuries or death. The above therefore, clearly comes within the proviso of 124A of Railways Act, and amounts selfinflicted injury.
Moreover, the applicant in his claim application as well as affidavit stated that he had purchased the ticket but he neither produced the ticket nor was found during police investigation.
Therefore, on the basis of evidence on record and attending circumstances of the case, it is hold that the injured was not a bonafide passenger of the subject train and case of applicants does not fall u/s.123(c)(2) of the Railways Act. On the contrary the said incident falls under Section 124A(b) viz.selfinflicted injury. Therefore, for want of proper evidence on record in support of claim of the petitioner, it is held that the injured was not bona fide passenger of Vadodara Intercity Express and fallen down from the train and became a victim of untoward incident on the day in question. It transpires from the above discussion that the applicant has not come out with clean hands before the Tribunal. There is total variance with the pleadings as well as evidence produced on record. Therefore, on the basis of the above facts on record, it is held that the present petitioner fails to establish above two issues accordingly we decide issue nos.1 & 2 in negative.
Regarding Issue No.3: In view of the negative findings on issue no.1 & 2, it is not required to discuss this issue and accordingly we pass the following order.
ORDER
10. In view of the negative findings on issue no.1 & 2 the claim application stands dismissed.
Page 5 of 35 C/FA/2204/2018 JUDGMENT
No order as to costs.
In terms of the above, the present Claim Application is disposed of."
7. Being dissatisfied with the judgment and order passed by the Tribunal, the appellant - original claimant is here before this Court with this Appeal.
8. Mr. Shastri, the learned counsel appearing for the appellant submitted that the tribunal committed a serious error in taking the view that the case on hand is not one falling within the ambit of "untoward incident". Mr. Shastri submitted that the tribunal committed a serious error in taking the view that the case is one falling within the proviso to Section124A of the Act, 1989. The counsel would submit that the case is not one of selfinflicted injury. In this regard the learned counsel has placed reliance on a recent decision of the Supreme Court in the case of Union of India Vs. Rina Devi reported in AIR 2018 SC 2362. In such circumstances referred to above, the learned counsel appearing for the appellant prays that there being merit in this First Appeal, the same be allowed.
9. On the other hand, this appeal has been vehemently opposed by Ms. Amin, the learned counsel appearing for the respondent - Union of India. Ms. Amin would submit that no error not to speak of any error of law could be said to have been committed by the Tribunal in rejecting the claim put forward by the appellant herein.
10. Ms. Amin has placed strong reliance on the statement of the appellant herein dated 27/04/2015 recorded by the concerned railway officials. Relying on the said statement Ms. Amin would submit that the case is not one of "untoward incident". In such circumstances referred to Page 6 of 35 C/FA/2204/2018 JUDGMENT above, Ms. Amin prays that there being no merit in this First Appeal, the same be dismissed.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Tribunal committed any error in passing the impugned order.
12. Let me straightway go to the statement of the appellant dated 27/04/2015 recorded by the railway officials after the accident. The statement reads as under: Statement of Claimant Date: 27/04/2015 Name: Pravinbhai S/o Ishwarbhai Vaghela, Age: 40 year, Occupation:
Cleaner (Safai Kamdar), Residing at Kachhi Gam, Tal.: Mahemdabad, Dist.: Kheda.
Upon asking, I am making my statement willingly that I am residing at the above mentioned address. And from my residence I am working in Ahmedabad PWD department as a daily wager Safai Kamdar. On 27/5/2014 I left my residence and from Mahemdabad Railway Station I boarded Anand Memu at around 8 a.m. and reached Ahmedabad Kalupur Station. I went to the PWD office behind the Civil Hospital for labour work and approximately by 12 p.m. I finished my cleaning work and drainage work in the colony and reached back to the Kalupur Station to go back to my home. I purchased a General Class railway ticket of Rs.20/ for going to Mahemdabad and boarded the Mumbai Local train standing at platform no.1. One that day this train started approximately 2 hours late than the scheduled time. After the train departed it stopped in the Kankariya Yard. At that time, AhmedabadBaroda Intercity was passing through at a slow speed. I thought that by intercity I would reach home early. Thinking this I got down from the Local train and tried to board the Intercity Train. While trying to board, my leg slipped from the footboard so my hand also slipped from the handle and I fell down. Because of this my left leg got cut and I sustained injury on other parts. The Master called for 108 and got me admitted in the Civil Hospital. Because of this accident, I was admitted for 45 days and now I am not able to move or work. Only this is my statement which is read over to me in Hindi and Page 7 of 35 C/FA/2204/2018 JUDGMENT Gujarati and which is as per my narration and it is signed by me.
Before me, Vaghela Pravinbhai Ishwarbhai
Sign
_________
SIPF/KKF
13. Thus, it appears that the appellant had already boarded one train for the purpose of going back to his place of residence situated at Mahemdabad. However, the said train stopped in the Kankariya yard. It appears that the appellant was in hurry to reach home. He noticed that Ahmedabad - Vadodara Intercity Express was passing by and he decided to get into the said train. The appellant deboarded the train which he had already boarded and tried to get into the Ahmedabad-Vadodara Intercity Express. The Ahmedabad- Vadodara Intercity Express was in motion. While trying to get into the Intercity Express, it appears that the appellant slipped and his left leg got cut. He also suffered various injuries on other parts of his body.
14. The only confusion in my mind is with regard to the date of the statement. There seems to be some mistake. If the statement is said to have been recorded on the date of the accident, then how come it is stated in the statement that the appellant remained admitted in the hospital for 45 days. This has not been clarified by the learned counsel appearing for the respective parties.
15. However, the fact remains that the statement has not been disputed or denied. The question for my consideration is whether the case falls within the ambit of "untoward incident" or his falling within the proviso to Section124A of the Act, 1989.
16. Section 123(c) defines "untoward incident", which reads as under: Page 8 of 35 C/FA/2204/2018 JUDGMENT "123(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 violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shootout or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloakroom 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 falling of any passenger from a train carrying passengers."
17. In my view, the case is not one falling under the proviso to Section124A of the Act 1989. The tribunal has taken the view that the accident amount to selfinflicted injury. If one goes by the manner in which the accident occurred, it could be said that the appellant for no good reason incurred the risk of boarding a train which was in motion and that too while the train was passing through the railway yard.
However, the case would fall within the ambit of selfinflicted injury only if the Court is able to read the intention. The concept of "self inflicted injury" would require intention to inflict such injury and not mere negligence of any particular degree. This principle has been explained by the Supreme Court in the case of Rina Devi (supra). I may quote the relevant observations: Re: (ii) Application of Principle of Strict Liability - Concept of Self Inflicted Injury 16.1 From the judgments cited at the Bar we do not see any conflict on the applicability of the principle of strict liability. Sections 124 and Section 124A provide that compensation is payable whether or not there has been wrongful act, neglect or fault on the part of the railway administration in the case of an accident or in the case of an 'untoward incident'. Only exceptions are those provided under proviso to Section 124A. In Prabhakaran Vijaya Kumar (supra) it was held that Section 124A lays down strict liability or no fault liability in case of railway accidents. Where principle of strict liability applies, proof of negligence is not required. This principle has been reiterated in Page 9 of 35 C/FA/2204/2018 JUDGMENT Jameela (supra).
16.2 Coming to the proviso to Section 124A to the effect that no compensation is payable if passenger dies or suffers injury due to the situations mentioned therein, there is no difficulty as regards suicide or attempted suicide in which case no compensation may be payable. Conflict of opinions in High Courts has arisen on understanding the expression 'self inflicted injury' in the proviso. In some decisions it has been held that injury or death because of negligence of the victim was at par with self inflicted injury. We may refer to the decisions of High Courts of Kerala in Joseph PT (supra), Bombay in Pushpa (supra) and Delhi in Shayam Narayan (supra) on this point.
16.3. In Joseph PT (supra), the victim received injuries in the course of entering a train which started moving. Question was whether his claim that he had suffered injuries in an 'untoward incident' as defined under Section 123(c) could be upheld or whether he was covered by proviso to Section 124A clause (b). The High Court held that while in the case of suicide or attempt to commit suicide, intentional act is essential. Since the concept of 'self inflicted injury' is distinct from an attempted suicide, such intention is not required and even without such intention if a person acts negligently, injuries suffered in such an accident will amount to 'self inflicted injury'. Relevant observations are:
"Therefore, the two limbs of the Proviso should be construed to have two different objectives to be achieved. We can understand the meaning of the term "selfinflicted injury" not only from the sources provided by the dictionaries, but also from the context in which it is used in the statute. The term "self inflicted injury" used in the statute can be deduced as one which a person suffers on account of one's own action, which is something more than a rash or negligent act But it shall not be an intentional act of attempted suicide. While there may be cases where there is intention to inflict oneself with injury amounting to selfinflicted injury, which falls short of an attempt to commit suicide, there can also be cases where, irrespective of intention, a person may act with total recklessness, in that, he may throw all norms of caution to the wind and regardless to his age, circumstances, etc. act to his detriment. Facts of this case show that the appellant attempted to board a moving train from the off side unmindful of his age and fully aware of the positional disadvantageous and dangers of boarding a train from a level lower than the footboard of the train. It is common knowledge that the footboard and handrails at the doors of the compartment are designed to suit the convenience of the passengers for boarding from and alighting to the platform. And at the same time, when a person is trying to Page 10 of 35 C/FA/2204/2018 JUDGMENT board the train from the nonplatform side, he will be standing on the heap of rubbles kept beneath the track and that too in a lower level. Further more, he will have to stretch himself to catch the handrails and struggle to climb up through the footboard hanging beneath the bogie. The probability of danger is increased in arithmetic progression when the train is moving. Visualising all these things in mind, it can only be held that the act of the appellant was the height of carelessness, imprudence and foolhardiness. It is indisputable that the purpose of Section 124A of the Act is to provide a speedy remedy to an injured passenger or to the dependents of a deceased passenger involved in an untoward incident. Section 124A of the Act provides for compensation to a passenger or his dependents who suffers injury or death, as the case may be, in an untoward incident even where the untoward incident is not the consequence of any wrongful act, neglect or default on the part of the Railway Administration. To this extent, it can be said to be a nofault liability. Even though the provisions relating to payment of compensation in the Act can be said to be a piece of beneficial legislation, it cannot be stretched too much to reward a person who acts callously, unwisely or imprudently. There is no provision of law brought to our notice permitting the passengers to entrain from the nonplatform side of the railway track. However, the counsel for the respondent did not show any provision of law prohibiting the same. The question whether an act by which a passenger sustains injury while boarding a train through the off side, is a selfinflicted injury or not depends on the facts of each case. Merely because a person suffered injury in the process of getting into the train through the off side, it may not be sufficient to term it as a selfinflicted injury, unless the facts and circumstances show that his act was totally imprudent, irrational, callous and unmindful of the consequences. All the facts and circumstances established in this case would show that the act of the appellant was with full knowledge of the imminent possibility of dangering his life or limb and therefore, it squarely comes within the term "selfinflicted injury" defined in Section 124A Proviso (b) of the Act."
16.4 In Pushpa (supra) a hawker died in the course of boarding a train. It was held that he was not entitled to compensation as it was a case of 'self inflicted injury'. The relevant observations are :
"Such an attempt by a hawker has been viewed by the trial Court as something amounting to criminal negligence on his part and also an effort to inflict injuries to himself. The trial Court reasoned that if the deceased had to sell his goods by boarding a train, he should have ensured to do so only when it was quite safe for him to get on to the train or otherwise he could have avoided catching Page 11 of 35 C/FA/2204/2018 JUDGMENT the train and waited for another train to come. It also hinted that there was absolutely no compulsion or hurry for the deceased in the present case to make an attempt to somehow or the other board the train while it was gathering speed."
16.5 In Shyam Narayan (supra), same view was taken which is as follows :
"6(ii) I cannot agree with the arguments urged on behalf of the appellants/applicants in the facts of the present case because there is a difference between an untoward incident and an act of criminal negligence. Whereas negligence will not disentitle grant of compensation under the Railways Act, however, once the negligence becomes a criminal negligence and selfinflicted injury then compensation cannot be granted. This is specifically provided in the first proviso to Section 124A of the Railways Act which provides that compensation will not be payable in case the death takes place on account of suicide or attempted suicide, self inflicted injury, bona fide passenger's own criminal act or an act committed by the deceased in the state of intoxication or insanity."
16.6 We are unable to uphold the above view as the concept of 'self inflicted injury' would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. versus Sunil Kumar [2017 (13) SCALE 652 : AIR 2017 SC 5710] laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Section 163A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or deboarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor.
18. I have my reservations about accepting the very case of the appellant as put forward in his claim petition, which was filed before the tribunal. The statement which has been referred to above speaks for itself. The pleadings in the claim petition filed before the tribunal are quite contradictory to the contents of the statement of the appellant referred to above. It appears that with a view to seek compensation at any cost, the pleadings in the claim petition are to the effect as if the Page 12 of 35 C/FA/2204/2018 JUDGMENT case is one of accidental fall from the train on account of a jerk. The statement of the injured claimant referred to above has not been disputed or denied.
19. Section 123(c)(2) defines the accidental falling of any passenger from a train carrying passengers as one of the untoward incidents referred to in the said provision. If literal meaning is given to such provision, it may result in holding that only when a passenger falls down from a train, the same can be termed as untoward incident. If it is considered in the light of exemption provided under Section 124A of the Railways Act, such an interpretation shall not be desirable. The following alone are the exemptions provided therein:
(a)suicide or attempted suicide,
(b)selfinflicted injury,
(c)injury caused by his own criminal act,
(d)any act committed by the passenger in a state of intoxication or insanity, and
(e)any natural cause or disease or medical or surgical treatment provided such treatment has not become necessary due to injury caused by the said untoward incident.
For better appreciation entire Section 124A is reproduced hereunder:
"Compensation on account of untoward incidents: 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 any thing contained in any other law, be liable to pay Page 13 of 35 C/FA/2204/2018 JUDGMENT 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 due to
(a)suicide or attempted suicide by him;
(b)selfinflicted 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.
ExplanationFor 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".
20. In the case of Union of India Vs. Prabhakaran Vijaya Kumar and others reported in (2008) 9 SCC 527 the Apex Court has held as under: "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 vs. Union of India(2003) 4 SCC Page 14 of 35 C/FA/2204/2018 JUDGMENT 524(para 9), B. D. Shetty vs. CEAT Ltd. (2002) 1 SCC 193 (para
12), Transport Corporation of India vs. ESI Corporation (2000) 1 SCC 332 etc.
12. It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation vide Alembic Chemical Works Co. Ltd. vs. The Workmen AIR 1961 SC 647( para 7), Jeewanlal Ltd. vs. Appellate Authority AIR 1984 SC 1842 (para 11), Lalappa Lingappa and others vs. Laxmi Vishnu Textile Mills Ltd. AIR 1981 SC 852 (para 13), S. M. Nilajkar vs. Telecom Distt. Manager (2003) 4 SCC 27(para 12) etc.
13. In Hindustan Lever Ltd. vs. Ashok Vishnu Kate and others 1995(6) SCC 326 (vide para 42) this Court observed:
"In this connection, we may usefully turn to the decision of this Court in Workmen vs. American Express International Banking Corporation wherein Chinnappa Reddy, J. in para 4 of the Report has made the following observations:
"The principles of statutory construction are well settled. Words occurring in statutes of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misapplication must be recognized and reduced. Judges ought to be more concerned with the 'colour', the 'content' and the 'context' of such statutes (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of literal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surender Kumar Verma v. Central Govt. Industrial TribunalcumLabour Court we had occasion to say:
"Semantic luxuries are misplaced in the interpretation of 'bread and butter' statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions."
Francis Bennion in his Statutory Interpretation Second Edn., has dealt with the Functional Construction Rule in Part XV of his book.
Page 15 of 35C/FA/2204/2018 JUDGMENT The nature of purposive construction is dealt with in Part XX at p. 659 thus:
"A purposive construction of an enactment is one which gives effect to the legislative purpose by
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposiveandliteral construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive and strained construction)."
At p. 661 of the same book, the author has considered the topic of "Purposive Construction" in contrast with literal construction. The learned author has observed as under:
"Contrast with literal construction Although the term 'purposive construction' is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975: 'If one looks back to the actual decisions of the [House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions'. The matter was summed up by Lord Diplock in this way ...I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it"
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 country there are crores of people who travel by railway trains since everybody cannot afford traveling 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 accidents when a bona fide passenger i.e. a passenger traveling with a valid ticket or pass is trying to enter into Page 16 of 35 C/FA/2204/2018 JUDGMENT a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.
15. Section 2 (29) of the Railways Act defines 'passenger' to mean a person traveling with a valid pass or ticket. Section 123(c) of the Railways Act defines 'untoward incident' to include the accidental falling of any passenger from a train carrying passengers. Section 124A of the Railways Act with which we are concerned states :
"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) selfinflicted 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 traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident".
21. In the case of Smt. Akhtari Vs. Union of India reported in 2009 (27) LCD 240, the Court has held as under: "Section 124A categorically provides that " whether or not, there has Page 17 of 35 C/FA/2204/2018 JUDGMENT been any wrongful act, neglect or default on the part of the railway administration", the injured or the dependent of a passenger who has been killed shall be entitled for damages in respect thereof. Accordingly, the passenger travelling on the train shall be entitled for damages or compensation. In the event of accident or untoward incident the presumption shall always be in favour of the passenger with regards to bona fide unless rebutted by the material and cogent evidence. In the present cae, driver and guard in ordinary course cannot be the eyewitnesses to establish that the deceased was at fault. Moreover, keeping the provisions contained in Section 50,51,57,58,59 of the Act, since the respondent has failed to discharge statutory obligation to regulate the passengers in the compartment of the train and because of necessity the deceased or the people are even in overcrowded train generally used to travel in second class, their bona fide may not be doubted.
The provisions contained in Chapter VIII and Chapter XV of the Act give ample power to the Railway to check the unauthorized travelers. Unless and until the passenger is caught hold by the railway authorities or is charged of travelling without ticket. It shall be presumed that person travalling in the train having valid ticket .However, such presumption is rebuttable. In the present case , since clothes were torn and the body of the deceased was dragged for about 100 meters or more, the presumption lies in favour of the deceased that he was possessing valid ticket while travelling from Hargaon Railway Station to Lakhimpur Railway Station.
The expression "untoward incident" as defined in Section 123(c) of the Act enumerates categories of meanings and in a restrictive and exclusionary sense as already notices. Each of the enumerated meanings clearly exclude the violation and participation of the victim in the act which denotes and " Untoward incident". From the structure of clause (c) an " Untoward incident" has been defined also to mean the accidental falling of any passenger from a train carrying passengers. Three classes of occurrences viz. Commission of a terrorist act, or the indulging in rioting, shootout or arson, have been included in subclause(1) and exemplified as events consequent on the act by any person in or on any train carrying passengers or in the enumerated premises."
22. I am of the view that the case is one of gross criminal negligence. No doubt mere negligence of a bonafide passenger is not sufficient to deny a claim under the Act, 1987 as per the decision of the Supreme Court in the case of Jameela and others Vs. Union of India reported in Page 18 of 35 C/FA/2204/2018 JUDGMENT (2010) 12 SCC 443 : 2010 ACC 800 (SC). However, the judgment in the case of Jameela (supra) also states that such cases which are covered under the proviso to Section124A of the Act, 1989 i.e.where the negligence is not an ordinary negligence, but there is criminal negligence, then the deceased is responsible for his own death and compensation cannot be allowed.
23. However, the facts of the present case are very gross. The appellant had already boarded one train. The ticket is said to have been purchased for one particular train. That train came to a halt while passing through the Kankariya railway yard. The appellant appeared to be in a hurry to reach his home. He noticed that Intercity train was passing by. He knew very well that the said train was in motion. The appellant went to the extent of deboarding the train, which he had already boarded and tried to get into another train, without any valid ticket for the said train, which was passing by and that too while the train was in motion. It cannot be said that the negligence was an ordinary negligence. How can a passenger even think of deboarding the train and try to get into another train passing by and that too while another train is in motion. The rash and negligent act of trying to board such a train amounts to a criminal negligence. The railways cannot be held liable for the incident in question. I am of the view that even if such an act does not fall within the proviso to Section124A of the Act, 1989, still the same would not be covered under Section123(c)(2) of the Act.
24. The Supreme Court in the case of Prabhakaran (supra) referred to above in Para20 has held 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 therefore falls down from the train, Page 19 of 35 C/FA/2204/2018 JUDGMENT 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. The Supreme Court has held that since the provision for compensation in the Railways Act is a beneficial piece of legislation, the same should receive a liberal and wider interpretation and not a narrow and technical one. In such circumstances, the Supreme Court held that even if a person is trying to board the train and falls down, then the case would be covered under Section123(c)(2) of the Act, 1989. Whether this would cover a case in which a person tries to board a running train passing through the railway yard? In my view, even if most liberal and wider interpretation is given to the expression 'accidental falling of a passenger from a train carrying passengers' the same would not cover an act of a person who gets down from a particular train already boarded and then tries to board another train passing by it from the railway yard. A train has to boarded while the same is on the platform and not while the same is passing through the railway yard. I can understand a situation wherein the train is in a motion, but has yet not left the entire platform and while boarding such train in motion, if a bonafide passenger falls down and dies or gets injured himself, the case would be covered under Section123(c)(2) of the Act, 1989. However, in my view, in no circumstances a person is entitled to board a running train while passing through the railway yard.
25. I intend to look into this issue in details. A Full Bench decision of the Andhra Pradesh High Court in the case of Union of India, South Central Railways Vs. Kurukundu Balakrishnaiah reported in 2003 LawSuit (AP) 1204 throws considerable light on the pivotal issue in question.
26. The statement of objects and reasons accompanying the Bill Page 20 of 35 C/FA/2204/2018 JUDGMENT introduced to amend the provisions of the Act, reads as under:
"STATEMENT OF OBJECTS AND REASONS At present Section 124 of the Railways Act, 1989, provides for payment of compensation to bona fide passengers who get injured or to the dependents of those who die on account of passenger train accident. However, incidents like terrorists' acts, robberies, dacoits, violent attacks, rioting, shootouts, arson, etc., in trains or in waiting halls, cloak rooms, booking offices or on platforms or other places within the precincts of any Railway station are not covered by that section for the purpose of payment of compensation.
2. There have been pressing demands, in both the Houses of Parliament and from the public that the bona fide Railway passengers who become victims of the aforesaid incidents should also be compensated for injuries or loss of life. It is, therefore, proposed to introduce the Railway Passenger Insurance Scheme for valid ticket and pass holders so as to compensate them for injuries or death caused by the aforesaid incidents in trains or the aforesaid places. No compensation will, however, be payable by the Railway Administration in cases of death or injury due to suicide or attempted suicide, self inflicted injuries, criminal acts of the passenger, acts committed by the passenger in a state of intoxication or insanity, natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by any of the aforesaid incidents.
3. Accordingly it is proposed to amend the Railways Act, 1989 and to make certain consequential amendments in the Railway Claims Tribunal Act, 1987.
4. The Bill seeks to achieve the above objects."
27. Having regard to the phraseology employed in Clause (c) of Section 123 it is apparent that the Legislature has employed a restrictive definition of the expression "untoward incident". Neither the expression "include", "means and includes" or "to apply to and include" has been employed. Untoward incidents might include a broad spectrum of occurrences apart from those illustrated/enumerated in the definition in Clause (c). The Legislature has however by employing the restrictive phraseology "means" has circumscribed the meaning of an untoward Page 21 of 35 C/FA/2204/2018 JUDGMENT incident to commission of a terrorist act, making of a violent attack or commission of a robbery, a dacoity or indulging in rioting, shootout or arson by any person in or on any train carrying passengers, or in the specified areas as also the accidental falling of any passenger from a train carrying passengers. In this reference we are concerned with the purport of the expression "accidental falling of any passenger from a train carrying passengers".
28. The New Oxford Dictionary of English (4th impression 2002) defines 'accident' as "an unfortunate incident that happens unexpectedly and unintentionally typically resulting in damage or injury; an event that happens by chance or that is without apparent or deliberate cause".
"Accidentally" is defined as "happening by chance, unintentionally or unexpectedly."
29. Stroud's "Judicial Dictionary" (5th Edition 1986) defines 'accident' as : "(a) An effect is stated to be accidental when the act by which it is caused is not done with the intention of causing it, and when its occurrence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in which it is done, to take reasonable precaution against it. (b) Accident includes an unlocked for mishap, or an untoward event which is not expected or designed. (c) Suppose a man was to go blindfold along the street and to run against something could any one say, he met with an accident? He would do an act that would be very likely to lead to a mischief. It is different with the person who might suffer by such act; he might fairly say that he met with an accident a peril which is liable to every man who goes out in the road and meets with negligent people, (per Bramwell B., Lloyd v. General Iron Screw Collier Co., 33 LJ ex 269). (d) Page 22 of 35 C/FA/2204/2018 JUDGMENT "Injury caused by accidental" in an insurance policy means an injury caused by some acts of the insured, which he had not intended and was an involuntary act on his part (Steinke v. Australian Provincial Assurance Association Ltd., (1940 St.R. Qd. 7)".
30. The Law lexicon by Ramanatha Aiyar (2nd Edn. 1977) defines an accident, inter alia, as (a) An undesigned, sudden or unexpected event; mishap; misfortune; disaster. (b) An occurrence which is due neither to design nor to negligence. An act that is intentional is clearly not accident. If it be the result of culpable negligence then by due care it could have been avoided and the negligent person cannot be allowed to excuse himself by declaring it an accident. (c) Accident generally denotes an event that takes place without ones foresight or expectation; an event which proceeds from an unknown cause, or is an unusual effect of a known cause and therefore not expected; chance, casualty, contingent; an event happening without the occurrence of the will of the person by whose agency it was caused.
31. The permanent Edition of "Words and Phrases" has included a host material defining the expression "accident" and "accidental" by illustrations through cases. Accordingly
(a) An accident is an event that takes place without ones foresight or expectation; an undersigned, sudden and unexpected event.
(b) Accident denotes an event that proceeds from an unknown cause or is a unusual effect of a known cause and is therefore unexpected. [Choctaw County v. Bateman 252 p. 2d 465].
(c) An accident is an occurrence that could not have been foreseen by a prudent person. [Smith v. Roane Anderson Co., 207 S.W. 2d 353].
(d) Accident means an unusual fortuitous, unexpected, unforeseen or unlocked for event, happening or occurrence, attending operation or performance of usual or necessary act or event [Wright v. Wyoming State Training School 255 p.2d211J.
(e) Accident is the result of an unknown cause or of an unusual and Page 23 of 35 C/FA/2204/2018 JUDGMENT unexpected event happening in such an unusual manner from a known cause that it could be reasonably expected or foreseen and that it was not the result of any negligence [Allied Mills v. Miller 132 N.E.2nd 425].
(f) Accident is an event which occurs without the fault, carelessness or want of proper circumspection of the person effected, or which could not have been avoided by use of that kind and degree of care necessary to the exigencies and in the circumstances in which one was placed [Massey v. Georgia Power Co., 69 S.E. 2d 824].
(g) An accident in its strict sense implies the absence of negligence [Everett v. Clegg 96 S.E. 2d 382].
(h) An accident is an occurrence which human prescience and prudence cannot foresee or forestall [St. Louis I.M.& S. Railway Co. v. Barnett 45 S.W. 550].
32. It also requires to be noticed that the Permanent Edition of Words and Phrases illustrates the expression "accident" where it has been interpreted in its expansive sense: "Since the Compensation Act is a remedial statute which must be construed liberally in order to carry out its beneficent purpose, the popular and ordinary definition of the word 'accident' and not the stricter definition used in considering health and accidental policy is to be used in compensation cases" [Hertzberg v. Kapo Dyeing and Printing Co., 18A 2d 736].
"Accidental" has also been defined by illustrations in "Words and Phrases":
"(a) Accidental means involuntary as distinguished from wilful or intentional [Murill v. State Board of Accountancy of Department of Professional and Vocational Standards 218 p.2d 569].
(b) Neither the word "accident" nor "accidental" has a technical, legal meaning but must be considered in the light of the common and accepted meaning and construed according to common speech and usage, which contemplates something unanticipated, unforeseen and unusual, without design, intention or premeditation [Wills v.
Midland nat LIC 91 p.2d 695].
33. It is a well established principle of interpretation that in the construction of legislative expressions the interpreter must avoid the error of adopting a strictly lexicographic approach and constructing a fortress out of a dictionary. Lexicographic illuminations of an expression Page 24 of 35 C/FA/2204/2018 JUDGMENT are but among the guides to legislative intention and as all guides are often fallible more so as every expression is defined in a dictionary to include a host of meanings. It has been tritely stated by Julius Stone in "Precedents and Law" that all language is often plurisignative and English language is chronically plurisignative. Dictionaries exemplify this truism.
34. The expression "untoward incident" as defined in Section 123(c) of the Act enumerates categories of meanings and in a restrictive and exclusionary sense as already noticed. Each of the enumerated meanings clearly exclude the volition and participation of the victim in the act which denotes an "untoward incident". From the structure of Clause (c) an "untoward incident" has been defined also to mean the accidental falling of any passenger from a train carrying passengers. Three classes of occurrences viz., commission of a terrorist act, the making of a violent attack or the commission, of robbery or dacoity, or the indulging in rioting, shootout or arson, have been included in Subclause (1) and exemplified as events consequent on the act by any person in or on any train carrying passengers or in the enumerated premises.
35. In the structure of Subclause (1) of Clause (c) of Section 123 of the Act "the accidental falling of any passenger from a train carrying passengers, does not fit in for an appropriate construction of the clause".
"Accidental falling of a passenger" has been incorporated in a distinct Subclause (2) only as a structural arrangement. Both the Subclauses (1) and (2) of Clause (c) of Section 123 are designed to express a substantially similar legislative measure i.e.,to define an untoward incident as an event or occurrence that is caused by factors external to the passenger or unrelated to his normal prudent conduct. In the light of Page 25 of 35 C/FA/2204/2018 JUDGMENT the circumstances set out in Subclause (1) of Clause (c) it would be a strained interpretation to give the expression 'accidental falling of any passenger" [in Subclause (2)] an expansive import to embrace an accidental fall occurring as a consequence of an imprudent, negligent, foolhardy or careless act of the victim.
36. That an expansive meaning is excluded by the legislation is also inferable from the provisions of Section 124A of the Act. A true and fair construction of Clause (c) of Section 123 should avoid importing a meaning to the expression "untoward incident" by which the perpetrator or an abettor in the commission of, a terrorist act, a violent attack, robbery, dacoity, rioting, shootout, arson or fall of any passenger from a train is able to obtain compensation for himself, if he has been injured or has died as a result of such conduct of his. To ensure the exclusion of a contrary interpretation the Legislature appears to have taken care to enact ex abundenti cautela, a proviso to Section 124A. By the proviso it is enacted that no compensation shall be payable by the Railway Administration if the passenger dies or suffers injury due to any of the 5 categories of circumstances enumerated in Clauses (a) to (e). The commission by a person or passenger, of a terrorist act, the making of a violent attack, the commission of robbery, dacoity, the indulging in rioting, shootout or arson, would disentitle a person, who has been injured or has died as a consequence of the commission or indulging, of or in, any of the above acts, as his injury or death, as the case may be, would be the result of his own criminal act. That is the purpose of Clause
(c) of the proviso to Section 124A.
37. The 'proviso' is an ancient and well established verbal formula. It enables a general statement to be made as a clear proposition, any Page 26 of 35 C/FA/2204/2018 JUDGMENT necessary qualification being kept out of it and relegated to a proviso at the end. In the case of precision drafting the proviso is to be taken as limited in its operation to the Section or other provision it qualifies vide Lloyds and Scottish Finance Ltd. v. Modern Cars and Carbons (Kingston) Ltd., 1996(1) Q.B. 764 at 780.
38. Lush, J in Mulins v. Treasury of Surrey, (1880) 5 QBD 170, stated "when one finds a proviso to a section, the natural presumption is that, but for the proviso the enacting part of the section would have included the subjectmatter of the proviso".
39. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, , Hidayatulla I, (as His Lordship then was) exemplified the general rule as to the purposes of a proviso "as a general rule a proviso is added to an enactment to clarify or create an exception to what is in the enactment and ordinarily a proviso is not interpreted as stating a general rule". The proviso is also a drafting devise intended to be a guide to the construction of the enactment. If the enacting portion of a section is not clear or plurisignative, a proviso is appended to it to illustrate the true meaning. As stated by Lord Herschell in West Derby Union v. Metropolitan Life Assurance Society, (1897) AC
647." Of course, a proviso may be used to guide you in the selection of one or the other of two possible constructions of the words to be found in the enactment, and show when there is doubt about its scope, when it may reasonably admit of doubt as to having this scope or that, which is the proper view to take of it"
40. In Hindustan Ideal Insurance Co., Ltd. v. LIC, , Mudholkar, J., stated the principle thus: "There is no doubt that where the main Page 27 of 35 C/FA/2204/2018 JUDGMENT provision is clear its effect cannot be cut down by the proviso. But where it is not clear, the proviso, which cannot be presumed to be a surplusage can properly be looked into to ascertain the meaning and scope of the main provision ".
41. This purpose of the proviso as an illuminating device was also enunciated by Lord Russel in Jennings v. Kelli, 1939 (4) All WR 464, thus: Although a proviso may well be incapable of putting upon preceding words a construction which they cannot possibly bear, it may, without doubt operate to explain which of the two or more possible meanings is the right one to attribute to them".
42. Lord Thankerton in Government of the Province of Bombay v. Hormusji Menekji, AIR 1947 PC 200, rendering the opinion for the Privy Council reiterated the principle:
"It is a familiar principle of statutory construction that where you find in the same section express exceptions from the operating part of the section, it may be assumed, unless it otherwise appears from the language employed, that these exceptions were necessary, as otherwise the subjectmatter of the exceptions would have come within the operative provisions of the Section ".
43. The principle expressed by Thankerton, J., in the above case, was relied upon and followed in Kush Saigat and Ors. v. M.C. Mitter and Ors., Saghir Ahmad, J., restated the principle thus: "........the normal function of a proviso to expect something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. .........Since the natural presumption is that but for the proviso the enacting part of the Section would have included the subjectmatter of the proviso the enacting part has to be given such a construction which would make the exception Page 28 of 35 C/FA/2204/2018 JUDGMENT carved out by the proviso necessary and a construction which would make the exception unnecessary and redundant should be avoided".
44. In the light of the circumstances enumerated in the proviso to Section 124A that exempt the liability of the Railway Administration to compensate the death or injury suffered by a passenger, it is clear that the legislative intent underlying Chapter XIII of the Act as amended by Act 28/94, in particular Clause (c) of Section 123 and Section 124A is not to provide compensation to an injury or death suffered by a passenger regardless of the causative factors. In a measure a "no fault liability" is imposed on the Railways, viz., death or injury caused to a passenger on the occurrence of an untoward incident even absent any wrongful act, neglect or default on the part of the Railway Administration would fasten the Railway Administration with liability to pay compensation. Such no fault liability imposed on the Railways to pay compensation does not appear however to be so wide as to constitute an absolute liability and to render the Railways liable to pay compensation to a passenger who is injured or has died as a consequence of his own imprudent conduct, lack of reasonable care warranted in the circumstance of the train travel, acts of bravado, foolhardiness, carelessness or other such conduct.
45. The categories of situations enumerated in the proviso to Section 124A which exempt the Railway Administration from liability include suicide or attempt to suicide by the passenger concerned; his own criminal act; an act committed in a state of intoxication or insanity and even injury or death on account of a natural cause, disease or medical or surgical treatment unless such medical or surgical treatment is necessitated on account of an injury caused by an untoward incident.
Page 29 of 35C/FA/2204/2018 JUDGMENT Selfinflicted injury is one of the enumerated circumstances that exempt the Railways from paying compensation for death or injury of a passenger.
46. On a true and fair construction of the proviso to Section 124A including the five enumerated circumstances therein, the conclusion is compelling that death or injury resulting from the volitional and conscious conduct of the passenger reasonably expected to result in an injury or death to himself, injury or death as a result of his criminal act or while in a state of intoxication or while suffering from insanity or on account of a natural cause or on account of a disease or a medical or surgical intervention, where such medical or surgical intervention is unrelated to in injury caused by an untoward incident, exclude the liability of the Railways to pay compensation.
47. The categories of circumstances enumerated in the proviso to Section 124A constitute a guide to the legislative intent underlying enactment of Section 124A. Prior to the amendment incorporated in Section 124A there was a limited fault or on fault liability' implicated on the Railways for an injury or loss suffered by a passenger when an accident occurs either on account of a collision between the trains of which one is a passenger train or the derailment of or other accident to a train or any part of the train carrying passengers. Such liability was de hors the existence of any wrongful act, neglect or default on the part of the Railway Administration in the occurrence of such accident or collision. This provision came to be considered in Sunil Kumar's case (supra) wherein the law was declared that an accident to a passenger resulting in loss or injury suffered to him, which is not on account of an accident to a train, would not justify a claim for compensation under Page 30 of 35 C/FA/2204/2018 JUDGMENT Section 124. Sunil Kumar's case (supra) also clarified that what was denied to a passenger in such circumstances was not a right to claim compensation in the generic sense but the right to claim compensation under the speedier process by pursuing such a claim before the Railway Claims Tribunal. This exclusion constitutes no exception for the common law liability for breach of the duty of care of the carrier or a tortuous liability under common law and before the jurisdictional Civil Court.
48. The above decision of the Supreme Court appears to have triggered the legislative concern and with a view to providing a speedier remedy to passengers who suffer injury or death on account of an untoward incident, caused otherwise than by an accident to a passenger train or collision between trains and regardless of any wrongful act, neglect or default on the part of the Railway Administration, the Legislature intervened. This legislative concern found utterance in Act 28/94 by which Section 124A was introduced into the Act along with a definition of "untoward incident" in Section 123(c).
49. What is provided in Section 124A is compensation to a passenger for having suffered an injury or death in an untoward incident even where the untoward incident is not the consequence of any wrongful act, neglect or default on the part of the Railway Administration. There appears nothing in the phraseology of Section 124A, which implicate the liability of the Railways to compensate a passenger who suffered injury or death, a the case may be, on account of his own imprudent act or a departure from the standard of care required of the passenger while travelling on a train. If the legislation has clearly pronounced qua the proviso to Section 124A of the Act that the Railway Administration is immunized from the liability to pay compensation for death or injury Page 31 of 35 C/FA/2204/2018 JUDGMENT suffered on account of suicide or attempt to suicide by the passenger, on account of his criminal act or while in a state of intoxication or insanity of selfinflicted injury or on account of natural causes or disease, there is no justification to infer that the Legislature intended to mulct the Railway Administration with a liability to pay compensation to the passenger who had carelessly or negligently invited disaster to himself.
50. On the above analysis it appears reasonable to conclude that the circumstances enumerated in the proviso to Section 124A are in the nature of ex abundenti cautella provisions to emphasis the legislative intent already implicated in Subclause (2) of Clause (c) of Section 123 of the Act and the proviso is intended to make explicit that the expression "accidental falling" in the above subclause excludes fall of the passenger as a consequence of his fault, carelessness, lack of circumspection or absence of such kind and degree of care warranted in the exigencies and circumstances of travel by a train, or on account of absence of prudence and prescience on his part.
51. On behalf of the claimants it is strenuously contended that an injury or death caused to a passenger even on account of his own gross negligence or carelessness would not exclude the liability of the Railway Administration to pay compensation and that the expression 'untoward incident' occurring in Section 124A and defined as the "accidental falling" of a passenger in Section 123(c)(2) should receive a beneficent construction by this Court to facilitate payment of compensation even in such cases. This contention on behalf of the claimant does not commend acceptance by this Court. Neither the text and tenor of Sections 123 and 124A of the Act as analysed by us above, nor even the statement of objects and reasons accompanying the bill that was enacted as Act 28/94 Page 32 of 35 C/FA/2204/2018 JUDGMENT provided any support to justify acceptance of the interpretation that the claimants urge.
52. In the decision referred in Union of India v. United Insurance Company Limited case reported in (1997) 8 SCC 683, the question of negligence in relation to unmanned level crossing came up for consideration and the Apex Court held at Paras 16, 17, 18, 37 and 41 of the judgment as hereunder:
16. In Danoghue v. Stevenson, (1932) AC 562, a manufacturer was held liable to the ultimate consumer at common law on the principle of duty to care. Lord Atkin said: "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. He asked: "who, then in law is my neighbour? The answer seems to be, persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". The test of breach of common law duty is again the test of a reasonable or prudent person in the particular fact situation. Of course the amount of care, skill, diligence or the like, varying according to the circumstances of the particular case. The standard of foresight is again that of a reasonable person. Such a person is also expected to take into account common negligence in human behaviour. Of course, he need not anticipate folly in all its forms (London Passenger Transport Board v. Upson, (1949) AC 155 (HL). That if there is omission to exercise such a common law duty of care, an action at common law can be filed for nonfeasance is also clear from a judgment of this Court in Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat, . In our view, therefore, because the Railways are involved in what is recognised as dangerous or perilous operations, they are at common law, to take reasonable and necessary care, on the 'neighbourhood' principle even if the provisions in Section 13(c) and
(d)of the Railways Act, 1890 are not attracted for want of requisition by the Central Government.
17. The next important question is whether there can be any breach of a common law duty on the part of the Railway if it does not take notice of the increase in the volume of rail and motor traffic at the unmanned level crossing and if it does not take adequate steps such as putting up gates with a Watchman so as to prevent accidents at such a point? What is the extent of care required at common law has also been decided.Page 33 of 35
C/FA/2204/2018 JUDGMENT
18. In several cases the need to have a constant appraisal of increase in volume of rail and road traffic at level crossing has been treated as a requirement of the common law. In Smith v. London Midland and Scottish Railway Co., (1948 SC 125), Lord Cooper emphasised that the Railway should take all precautions which will reduce the danger to the minimum and should take into account the nature and volume of such traffic reasonably to be anticipated. In Lloyds Bank Ltd. v. Railway Executive, (1952) 1 All.E.R. 1248 (CA), Denning and Romer, L.JJ. had occasion to say that the Railway authorities were bound to take steps from time to time by considering the increase in the rail and road traffic at the level crossing. On facts in Lloyds Bank case it was found that 75 to 100 vehicles crossed the level crossing per day and it was held that the Railway company could not say, "this increased traffic on the road is no concern of ours. It was then concern."
The duties of the Railways treating the Railway line as an accommodation line at a private road and alternatively as one cutting across a public road where separately considered. It was held that treating it as a private road, the Railway authorities ought to have taken steps to have warning or whistles given. Alternatively, treating it as a public road the Railways ought to have put up dates as per the Railway Clauses Consolidation Act, 1845 and a "lodge" as per the Railway Clauses Act, 1863. Under both alternatives, the increased traffic required a reappraisal of the measures previously taken by the Railway to prevent accidents.
37. We are of the view that the principle laid down by Mason, J., is clearly applicable here. This general expectation of the community so far as the Railways are concerned can be summarised from the following passage in Halsbury Laws of England (Vol.34, Negligence, 4th Ed. 1984, para 73). It is stated that "a plaintiff is entitled to rely on reasonable care and proper precautions being taken and, in places to which the public has access, he is entitled to assume the existence of such protection as the public has, through custom, become justified in expecting" Halsbury then refers to a large number of cases of Railway accidents. In view of this general expectation of the community that appropriate safeguards will be taken by the Railways at level crossing, the first precondition is, in our view, clearly satisfied.
41. Once the two preconditions laid in Stovin v. Wise (1996) 3 WLR 388) are satisfied both as to nonexercise of statutory powers which was irrational and as to the statutory intent of payment of compensation for injury or death due to running inherently dangerous services in respect of which individuals cannot afford to protect themselves the conclusion is irresistible that the nonexercise of public law or statutory powers under Section 13(c) and (d) did create a Page 34 of 35 C/FA/2204/2018 JUDGMENT private law cause of action for damages for breach of statutory duty. The case falls within the exception where a statutory 'may' give rise to a "common law' ought."
53. In fact, the act of the claimant should be made a specific offence under the Railways Act 1989. If travelling on roof, step or engine of a train constitutes an offence under Section156 of the Act, 1989, then the act of a person deboarding a train already boarded by him and then trying to board a passing by train, that too in motion and in a railway yard not even on a platform should be an offence. This aspect can be looked into by the legislation in accordance with law.
54. In the overall view of the matter, more particularly, having regard to the peculiar facts and circumstances of the case, I am not persuaded to accept the appeal filed by the claimant.
55. In the result, this appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J) aruna Page 35 of 35