Gujarat High Court
Wasim Shamshulhak Shaikh vs Union Of India on 27 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/3078/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3078 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to NO
see the judgment ?
2 To be referred to the Reporter or not ? NO
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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WASIM SHAMSHULHAK SHAIKH
Versus
UNION OF INDIA
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Appearance:
MR RATHIN P RAVAL(5013) 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 : 27/08/2018
ORAL JUDGMENT
This Appeal under Section 23 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 passed by the Railway Claims Tribunal, Ahmedabad Bench at Ahmedabad, dated 7th August 2015 in Case Nos.OA- IIU/ADI/2012/0227 and OA-IIU/ADI/2012/0228 respectively.
Page 1 of 24C/FA/3078/2018 JUDGMENT It appears from the materials on record that the appellant herein was travelling along with his handicapped younger brother and parents from Vapi to Lucknow on 31st August 2012 by Train No.19037 (Bandra Terminus - Gorakhpur Avadh Express). It is not in dispute that they all were travelling as bonafide passengers. It appears that the handicapped brother of the appellant herein wanted to pass urine. In such circumstances, the parents took their handicapped son near the door of the compartment and while making him pass the urine, on account of a sudden jolt, the handicapped brother fell down from the running train. The parents, in the process of saving their son, also fell down from the running train. Thus, the appellant lost his handicapped younger brother and his parents in the unfortunate accident.
The appellant herein filed three claim petitions in this regard before the Railway Claims Tribunal, Ahmedabad Bench at Ahmedabad. The Tribunal, having regard to the pleadings of the parties, framed the following Issues :
"1. Whether the deceased was traveling as a bonafide passenger by train No.19037 on 01.09.2012 ?
2. Whether said incident covered under the provision of Section 123(c)(2) of the Railways Act, 1989 ?
3. Whether the Respondent proves the negligence on the part of the deceased ?
4. Whether the applicants are the dependents of the deceased ?
5. To what relief ?"Page 2 of 24
C/FA/3078/2018 JUDGMENT The findings recorded by the Tribunal as regards the Issues Nos.1, 2 and 3 are as under :
"9. These three issues are taken up for consideration simultaneously for the sake of convenience and also as they are inter-related.
10. At the outset, we must make it clear that there is serious challenge during the course of evidence regarding the accidental death of the deceased. According to the claimant. the deceased accidentally fell down from the running train and succumbed to the injuries. In support of the contention, the applicant filed memo of Station Superintendent-Nabipur which shows that the Loco-Pilot of train No.59161 Vadtal Passenger informed that two dead bodies were lying near KM. No.335/31. Inquest Panchnama shows that the deceased had fallen down while travelling by any Down train and two tickets No.V-17752765 & 17752766 was found from the pocket of the deceased. Translated copy of Panchnama of Place of Incident shows that the deceased had fallen down between Chavaj and Nabipur Railway Stations while travelling by any Down train.
Respondent relied on DRM's Investigation Report in which it has been mentioned that the son of the deceased stated in his statement that his son had taken his younger brother to attend the natural call at the entrance door of the compartment and during the natural call they both fell down due to losing their balance and thereafter their mother and father also fallen down to save them.Page 3 of 24
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11. It has been stated by the applicant in claim application as well as his affidavit that; the deceased had fallen down due to sudden heavy jerk of the said train but no reason was mentioned as to why the deceased had gone at the door of the train when they had confirmed seats in the said train.
12. The Respondents further stated that the son of the deceased Shri Wasim Shamshulhak Shaikh has stated that he was travelling along with a valid ticket in coach No.S/5, 6 along with his father Shamshulhak Shaikh mother Mobina Shaikh and his handicapped brother Abrar by 19037 Avadh Express on the date of the incident. During the Course of the journey his handicapped brother wanted to urinate and he took him to urinate at the entrance gate of the compartment and during urinating, they both lost their balance and fell down from the running train. On seeing them fall his mother and father also fell down in search of them. The Respondent has also filed the statement recorded by the Police Sub- Inspector, Bharuch Railway Station of Wasim S.Shaikh in which he had admitted that he had taken his brother to urinate. Though it is not categorically mentioned that he was urinating at the entrance door it can safely be presumed that he had not taken him to the toilet otherwise he would not have fallen out of the train from the toilet. Consequently it can safely be assumed that he had taken his handicapped brother Abrar at the entrance gate of the door.
13. At this juncture we would like to quote the judgement of Hon'ble Kerala High Court in case of Joseph P.T. V/S Page 4 of 24 C/FA/3078/2018 JUDGMENT Union of India in M.F.A. No.21 of 2012 in which the Hon'ble High Court stated that "self inflicted injury is not defined in the Railways Act, 1989 or in any other cognate statute. There is no definition of this term in the general clauses at 1987. However, the Hon'ble court has said that the self inflicted injury in terms of Advanced Lexicon by Ramanathan Iyer, 4th Edition Page 4406 defines self inflicted injury and self inflicted wound in the following terms: "self-inflicted injury as used in an accident policy that the insurer shall not be liable to insure for self inflicted injury means which are self inflicted by the insured when he is capable of rational voluntary action and not when he is insane. Self inflicted wound is defined as the wound inflicted by oneself."
14. The extent of liability of the railways is well established in terms of section 124, 124A but there are exceptions made by proviso a to e of section 124 A. Under the said proviso, railways are not liable to compensate a passenger in case of self inflicted injury. The Hon'ble Kerala High Court has opined "it is indisputable that the purpose of section 124A of the Act is to provide speedy remedy to an injured passenger or to the dependent of the deceased passenger involved in a untoward incident. Section 124A of the Act provides for compensation to a passenger or his dependents who suffer 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 no fault liability. Even though the provision relating to payment of compensation in this act can be said to Page 5 of 24 C/FA/3078/2018 JUDGMENT be piece of beneficial legislation, it cannot be stressed too much to reward a person who acts callously, unwisely or in imprudently."
15. From the sequence of events it can be seen that the act of the deceased 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 self inflicted injury defined in section 124A provision (b) of the Act.
16. We would also like at this stage to quote the judgment of Delhi High Court in the case of Bimla Devi & ors vs U0I in FAQ No.421 of 2012 in which the Hon'ble High Court while dealing at length with the judgment of the Apex court in U0I Vs Prabhakaran Vijay Kumar & ors and also in the case of Jameela and Ors Vs UOI has opined that the provision under sec. 123C & 124A laid down a strict liability however, "it has also been observed that where the death on account of criminal negligence or self inflicted injury, there is no liability on the railways. Supreme Court even in this judgment drawn a difference between negligence and criminal negligence because even if there is a negligence of the deceased in view of the strict liability, damages can be awarded. However, where the negligence amounts to a self inflicted injury, then in such cases the railway is justified in disputing the claim "Para 6, 7, 8, 9, 10 & 11 of the judgment in the case of JAMEELA (Supra) are relevant.
Page 6 of 24C/FA/3078/2018 JUDGMENT
17. Reading of the aforesaid paras shows that falling down a passenger from the train even at standing at door on account of his negligence will come under strict liability. However, if a person dies on account of self inflicted injury, attempting to get down from a running superfast train, cannot mean that there is negligence so as to invoke the principle of strict liability in favour of the appellants. Whereas falling from train on account of negligence will not enable railways to avoid the rules of strict liability but where the person tries to get down from a moving train as a result of which he slips and falls and dies then in such case, the deceased can be said to have died on account of self negligence or self imflicted injury and therefore, it is not a case only of negligence for holding the railways liable on the principle of strict liability."
18. In the said incident, the deceased not only tried to get down from the running train but was urinating at the entrance door of the mail/express train and lost the balance and fell down. Thereafter, the mother and father also in attempt to save him also jumped out from a running train.
This is clearly a reckless rash and a callous behavior on their part and they were well aware that this reckless behavior on their part could result in misadventure causing them injuries or death.
The above therefore, clearly comes within the proviso of 124A of the Rlys. Act and amounts & self inflicted injury.
Page 7 of 24C/FA/3078/2018 JUDGMENT
19. Therefore, on the basis of evidence on record and attending circumstances of the case, we hold that the deceased though was a bonafide passenger of the subject train but case of applicant does not fall u/s 123(c)(2) of the Railways Act. Hence our finding on issue No.1 is positive but as regards issue No.2 our finding is negative. There was clear negligence on the part of the deceased and hence issue No.3 is affirmative."
The Tribunal took the view that the case would not fall within the ambit of Section 123(c)(2) of the Railways Act, 1989. The Tribunal came to the conclusion that the case is one of self- inflicted injury and, therefore, would fall within the proviso to Section 124A of the Act, 1989.
Mr.Raval, the learned counsel appearing for the appellant, submitted that the Tribunal committed a serious error in rejecting the claim application. According to Mr.Raval, the case is not falling within the proviso to Section 124A of the Act, 1989, but the case falls within Section 123(c)(2) of the Act, 1989.
Mr.Raval would submit that to bring the case within the proviso to Section 124A of the Act, 1989, i.e. self-inflicted injury, the element of intention is required.
On the other hand, this Appeal has been vehemently opposed by Ms.Amin, the learned counsel appearing for the Railways. According to Ms.Amin, no error, not to speak of any error of law, could be said to have been committed in rejecting the claim application. Ms.Amin would submit that the case is Page 8 of 24 C/FA/3078/2018 JUDGMENT one of gross negligence. According to her, making a handicapped boy stand near the door of the compartment in a running train for the purpose of making him pass the urine could be termed as a rash act. In such circumstances, the case would not fall within Section 123(c)(2) of the Act, 1989. Ms.Amin, in such circumstances, prays that there being no merit in this Appeal, the same be dismissed.
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.
The findings of the Tribunal that the case is one of self- inflicted injury is not tenable in law in view of the recent pronouncement of the Supreme Court in the case of Union of India v. Rina Devi, reported in AIR 2018 SC 2362. The Supreme Court has explained the entire law on the subject in details. I may quote the relevant observations in this regard thus:
"13. We have anxiously considered the rival submissions. We consider it necessary to quote the relevant provisions of the 1989 Act :
"S.123. Definitions. - In this Chapter, unless the context otherwise requires,-
(a) "accident" means an accident of the nature described in section 124;
(b) xxxx xxxx xxxx xxxx
1[(c) "untoward incident" means--
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xxxx xxxx xxxx xxxx
(2) the accidental falling of any passenger from a train carrying passengers.] S.124. Extent of liability - When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, 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 has suffered a loss 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 a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident.
Explanation.--For the purposes of this section "passenger" includes a railway servant on duty. S.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 Page 10 of 24 C/FA/3078/2018 JUDGMENT would entitle a passenger who has been injured or the dependent 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 Page 11 of 24 C/FA/3078/2018 JUDGMENT platform ticket and becomes a victim of an untoward incident.]"
"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 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), Page 12 of 24 C/FA/3078/2018 JUDGMENT 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 "self-inflicted 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 self-Page 13 of 24
C/FA/3078/2018 JUDGMENT inflicted 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 board the train from the non- platform 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 dependants of a Page 14 of 24 C/FA/3078/2018 JUDGMENT deceased passenger involved in an untoward incident. Section 124A of the Act provides for compensation to a passenger or his dependants 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 no-fault 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 non- platform 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 self- inflicted 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 self- inflicted 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 Page 15 of 24 C/FA/3078/2018 JUDGMENT knowledge of the imminent possibility of dangering his life or limb and therefore, it squarely comes within the term "self-inflicted 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 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 Page 16 of 24 C/FA/3078/2018 JUDGMENT 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 self-inflicted injury then compensation cannot be granted. This is specifically provided in the first proviso to Section 124-A 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 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 de-boarding 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."
Page 17 of 24C/FA/3078/2018 JUDGMENT Thus, according to the ratio of Rina Devi (supra), the concept of 'self-inflicted injury' would require intention to inflict such injury and not mere negligence of any particular degree. According to the Supreme Court, 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'.
According to Ms.Amin, even if the case is not one of self- inflicted injury, the case is one of gross negligence or a very rash act on the part of the parties. In such circumstances, according to Ms.Amin, the case would not fall within the ambit of Section 123(c)(2) of the Act, 1989.
I am afraid, it is not possible for this Court to accept the submission of Ms.Amin. The law in this regard is well-settled. In Jameela and others v. Union of India, reported in AIR 2010 SC 3705, the Supreme Court held as under :
"On the basis of the law and facts indicated by the learned counsel for the parties, we find that in the present case the victim is to be blamed for the incident being negligent and therefore this case is not covered by the definition of the untoward incident. However, so far as the compensation is concerned the case of the claimant is covered by the provision of Section 124-A as because of his own negligence the deceased had fallen down from the train which caused his death. Further in the light of the fact that the deceased acted in a negligent manner without any precaution of safety by station going at the open door of the running train which resulted into his death."Page 18 of 24
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5. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under section 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railway that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railway that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under section 124A of the Act.
6. Chapter XIII of the Railways Act, 1989 deals with the Liability of Railway Administration for Death and Injury to Passengers due to Accidents. Section 123, the first section of the Chapter, has the definition clauses. Clause (c) defines "untoward incident" which insofar as relevant for the present is as under :
"123 (c) untoward incident means-
(1) (i) xxxxxxxx
(ii) xxxxxxxx
(iii) xxxxxxxx (2) the accidental falling of any passenger from a train carrying passengers."Page 19 of 24
C/FA/3078/2018 JUDGMENT Section 124A of the Act provides as follows :
"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 dependent 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 -
Page 20 of 24C/FA/3078/2018 JUDGMENT
(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."
7. It is not denied by the Railway that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a "passenger" for the purpose of section 124A as clarified by the Explanation. It is now to be seen, that under section 124A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. But the proviso to the section says that the railway administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in clauses (a) to (e).
8. Coming back to the case in hand, it is not the case of the Railway that the death of M. Hafeez was a case of suicide or a result of self-inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental.
9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now Page 21 of 24 C/FA/3078/2018 JUDGMENT negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to section 124A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea . Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour."
In view of the above, I am of the view that the Tribunal committed an error in rejecting the claim application.
In para-18 of the impugned judgment passed by the Tribunal, the following has been observed :
"In the said incident, the deceased not only tried to get down from the running train but was urinating at the entrance door of the mail/express train and lost the balance and fell down. Thereafter, the mother and father also in attempt to save him also jumped out from a running train. This is clearly a reckless rash and a callous behavior on their part and they were well aware that this reckless behavior on their part could result in misadventure causing them injuries or death."
I enquired with Ms.Amin, the learned counsel appearing for the Railways, as to on what basis the Tribunal has recorded such a finding. Ms.Amin clarifies that the finding is not correct and the error is on account of wrong Gujarati translation of the evidence on record. The evidence is to the effect that while the parents were making their handicapped son pass the urine Page 22 of 24 C/FA/3078/2018 JUDGMENT standing near the door of the compartment, the handicapped son accidentally fell down on account of a jolt, and in the process to save the son, the parents also fell down.
What has been clarified by Ms.Amin makes a lot of difference.
What remains is the quantum of compensation payable to the appellant. With the amendment of Rule 4 of the 1990 Rules with effect from 1st January 2017, the amount of compensation payable in case of a death of a passenger as a result of untoward incident has been enhanced from Rs.4 lac to Rs.8 lac.
In view of the decision of the Supreme Court in the case of Rathi Menon v. Union of India, reported in 2001 WBLR SC 515, I hold that the Tribunal, having rejected the application for compensation, the appellant is entitled to compensation in terms of the amended rule.
For the reasons aforesaid, I quash and set-aside the impugned judgment and order passed by the Railway Claims Tribunal, Ahmedabad Bench at Ahmedabad and allow the claim application by directing that the appellant shall be entitled to compensation in a sum of Rs.8 lac with interest at the rate of 7.5% per annum from the date of lodging of the claim application before the Tribunal till the date of payment.
The compensation awarded by this Court together with interest shall be paid by the respondent by issuing an account payee cheque in favour of the appellant. Such cheque shall be Page 23 of 24 C/FA/3078/2018 JUDGMENT deposited in the office of the Registrar General of this Court within two months, whereupon the appellant shall be entitled to collect the same from the Registrar General upon proving his identity and in accordance with law.
However, as pointed out by the learned counsel appearing for the appellant, his client would not be entitled to clam interest for the period of delay which he had waived at the time when the delay condonation application was allowed.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 24 of 24