Gujarat High Court
Mahendrabhai Manibhai Parmar vs Union Of India on 3 July, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/4112/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4112 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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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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MAHENDRABHAI MANIBHAI PARMAR
Versus
UNION OF INDIA
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Appearance:
MR UM SHASTRI(830) for the PETITIONER(s) No. 1,2
MS ARCHANA U AMIN(2462) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/07/2018
ORAL JUDGMENT
1. This appeal under Section 23 of the Railway Claims Tribunal Act is at the instance of the original claimants and is directed against judgment and order dated 31.08.2017 passed Page 1 of 25 C/FA/4112/2017 JUDGMENT by the Railway Claims Tribunal rejecting the application filed by the appellants herein under Section 16 of the Act, 1987, read with Sections 124A and 125 of the Railways Act, 1987 for compensation of Rs.4 lac with interest.
2. The appellants herein are the parents of deceased Aakash Mahendrabhai Parmar. Aakash was travelling on 17-09- 2013 from Vadodara to Boriyavi railway station by train No. 59049 Valsad- Viramgam Passenger. He fell down from a running train near the Bajwa Railway Station due to sudden jerk and jolt. According to the appellants, their son was travelling with a valid season pass No. W 65141118. The same was admitted in evidence at Ex- A/10. The Tribunal while adjudicating the application filed by the appellants herein framed the following issues:
1. Whether the deceased was travelling as a bonafide passenger by train no. 59049 on 17.09.2013 ?
2. Whether the said incident covered under the definition 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 Page 2 of 25 C/FA/4112/2017 JUDGMENT deceased ?
5. What order ? What Relief ?
3. The Tribunal answered the issues as under:
"Regarding Issues No.1, 2 & 3:
7. These three issues are taken up for consideration simultaneously for the sake of convenience and also as they are inter-related.
8. As per the Claim Application as well as in the affidavit of applicant no.1, their deceased son was undergoing training in Nation Institute of Aviation for Wireless at Vadodara. On 17.09.2013, their deceased son was returning from Vadodara to Boriyavi by train no. 59049 Valsad -Viramgam Passenger and he was holding a valid season ticket which was placed at Exh. A/6. As there was heavy rush in the compartment of the said train hence, he was standing near the door of the compartment. When the deceased was running near Bajwa railway station, due to sudden jerk and jolt their son accidentally fell down from the train and sustained grievous injuries and Page 3 of 25 C/FA/4112/2017 JUDGMENT consequently died. The Respondent did not cross examine the applicant no.1 to rebut the above claim. Hence, evidence of the applicant no.1 therefore goes unchallenged.
NOC at Exh. A/1 reveals that, the deceased Aakashbhai Mahendrabhai by caste Parmar aged 19 years had fallen down from the running train and died on account of injuries on 17.09.2013 near Bajwa Railway station at KM no. 403/08 at Starter Signal no. S/37. It is further mentioned that, the deceased was the real son of Mahendrabhai Manibhai Parmar and he is the father of the deceased. Memo issued by Station Superintendent-Vadodara (P) railway station at Exh. A/2 indicates that, Guard of train 59049 had informed on VHF set that, while boarding the running train, one person had fallen down at KM no. 403/08 at down starter signal no. S/37 and said person is died before reaching 108. Panchnama of place of incident & inquest panchnama at Exh. A/3 & A/4 also affirms that the deceased Aakashbhai Mahendrabhai by Caste Parmar was died on account of injuries due to fall from the running train while Page 4 of 25 C/FA/4112/2017 JUDGMENT boarding. In the panchnama of place of incident it is further stated that, on search, one black coloured school bags is found and while opening the bag, one mobile phone and a railway season pass no. 65141118 from Kanjari Boriyavi to Vadodara for M/Express valid from 23.08.2013 to 22.09.2013 and identity card no. W 65141117 has been recovered from the deceased. It is also mentioned that, on investigation dried blood stains were found on the railway metals and sleepers at the place of incident. Post Mortem Report at Exh. A/5 shows the cause of death of the deceased Aakashbhai Mahendrabhai Parmar was shock due to hemorrhage on account of crush injuries over abdomen and vital part of the body.
Respondent evidence, Ashokumar Sharma s/o Hariram Sharma, disclosed through affidavit that on 17.09.2013, he was as a passenger Guard on train no. 59049 DN Valsad - Viramgam Passenger between Valsad and Viramgam. He further stated that on 17.09.2013, at about 13.57 hrs. when his train started from Bajwa railway station after scheduled stoppage, he saw one unknown person running and trying to Page 5 of 25 C/FA/4112/2017 JUDGMENT catch the moving train and fell down between Platform and train. He applied emergency brake and ACP also took place and train stopped. He immediately informed on duty Station Master - Bajwa on VHF set regarding the incident and also reached the spot. The said person was injured; he carried out the injured person on the platform with the help of other passengers and also called 108 Ambulance. Station Master and Platform Porter are also reached the place of incident and the SM instructed to him to start his train.
DRM investigation report is also admitted that the deceased was a bonafied passenger of the train in question. However, the deceased fell down while boarding the running train no. 59049 on 17.09.2013. The deceased has not obeyed the Rules of the Railways; hence incident occurred for which the Railway Administration is not responsible.
In the instant case, Counsel for the applicants argued that, the deceased fell down while travelling by standing near the door of the compartment. However, on Page 6 of 25 C/FA/4112/2017 JUDGMENT perusal of the Panchnama of place of occurrence and Inquest suggest that, the incident occurred the deceased while trying to board the running train dashed with the train. Respondent Evidence, Shri Ashokumar Sharma, Guard of the train no. 59049 Dn Valsad - Viramgam Passenger in his affidavit that he had seen the deceased running and trying to catch the moving train and fell down while trying to board the running train from Bajwa railway station and fell down between the train and the Platform. Investigation report of RPF, Bajwa and Form no.1 attached with the DRM investigation report also confirmed that the incident occurred while boarding the running train by the deceased. Hence, the claim of the applicants that the deceased fell down due to jerk and jolt is not correct, because all the documents suggests that the deceased fell down and sustained injuries and died while boarding the running train from Bajwa railway station. 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 self- inflicted injury.
Page 7 of 25C/FA/4112/2017 JUDGMENT From the sequence of events it can be seen that th act of the deceased in this case was totally imprudent, irrational and suicidal. All the facts and circumstances of this case show that the act of the deceased 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. This is clearly a reckless rash and a callous act on his part and he was well aware that this reckless behavior on the part could result in mis-adventure causing him injuries or death. The above therefore, clearly comes within the proviso of 124A of Rlys. Act, and amounts self-inflicted injury.
Moreover, the applicants in its, claim application as well as in the affidavit of applicant no.1, the deceased was holding a valid MST from Kanjari Boriyavi to Vadodara but the deceased fell down while boarding from Bajwa railway station. Normally tickets as well as MSTs are issued from one station to another station which is valid for a Page 8 of 25 C/FA/4112/2017 JUDGMENT journey in permitted train between the pair of stations without break unless there is an endorsement on the ticket/MST with effect that valid between "A" & "B" stations from anywhere to anywhere. As claimed he was travelling from Vadodara to Kanjari Boriyavi, he is held as a valid passenger. It is presumed that he got down at Bajwa station from the train and again tried to catch the train. Even if it is assumed that he was a bonafide passenger the incident is not an accidental falling from the train and case does not fall u/s. 123(c)(2) of the Railways Act. On the contrary the said incident falls under proviso (b) of Section 124A of the Railways Act viz self-inflicted injury. Therefore, on the basis of above discussion is held that the incident does not falls within the definition of Section 123(c) of the Railways Act 1989. It transpires from the above discussion that the applicants have 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 petitioners fail to Page 9 of 25 C/FA/4112/2017 JUDGMENT establish issue no.2 accordingly I decide issue No.2 in negative. Issue no.1 is decided in affirmative.
9. Regarding Issue No.3:
In view of negative findings on issue no.2, it is not required to discuss this issue and accordingly I pass the following order."
4. Thus the Tribunal answered the first issue in the affirmative. The deceased was travelling as a bonafide passenger on 17.09.2013 by train No. 59049. However, according to the Tribunal, the accident could not be said to be covered under the definition of Section 123(c)(2) of the Act, 1989 because the railways cannot be held negligent in any manner. To put it in other words, according to the Tribunal, the accident did not occur on account of any negligence on the part of the railways.
5. Mr. U. M. Shastri, the learned counsel appearing for the appellants vehemently submitted that the Tribunal committed a serious error of law in taking the view that the death of the son of the appellants on account of the accident could not be Page 10 of 25 C/FA/4112/2017 JUDGMENT said to be an "untoward incident" as defined under Section 123(c)(2) of the Railways Act, 1989. According to Mr. Shastri, the provisions of the Act suggest a concept of strict liability, when the liability would be incurred by the Railway regardless of any negligence. Mr. Shastri would submit that the case in hand does not fall in any of the category referred to in the proviso to Section 124 of the Act and in such circumstances, the Railway cannot escape the liability in light of the statutory provision of Section 123(c)(2) read with Section 124(A) of the Railways Act. In such circumstances, Mr. Shastri prays that their being merit in this first appeal, the same be allowed and the judgment and order passed by the Tribunal be quashed.
6. On the other hand, this appeal has been vehemently opposed by Ms. Archana Amin, the learned standing counsel appearing for the Railway. According to Ms. Amin, no error not to speak of any error of law could be said to have been committed by the Tribunal in passing the impugned order.
Ms. Amin would submit that although, the Railway is not disputing the fact that the deceased was a bonafide passenger, yet the accident in question would not fall within the ambit of "untoward incident". For the purpose of claiming adequate compensation, the accident must fall within the Page 11 of 25 C/FA/4112/2017 JUDGMENT ambit of "untoward incident". According to Ms. Amin, it is possible that if a passenger boards an overcrowded train, then he may on his own incur the risk of falling down from the compartment of the train. If such an accident occurs, then Railway should not be held liable to pay compensation. In the last, Ms. Amin pointed out that the impugned judgment and order has been passed by a one member (technical) tribunal.
She pointed out that few appeals are pending before this Court on the issue whether there can be a one member Tribunal and that too, member (technical). She also pointed out that a public interest litigation in this regard is also pending in this Court.
7. In such circumstances referred to above, Ms. Amin prays that their being no merit in this appeal, the same be dismissed.
8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the following points fall for the determination of this Court:
(1) Whether the Tribunal committed error in taking the view that the incident is not covered under the definition of Section 123(c)(2) of the Act, 1989 ?
(2) Is it necessary for the claimants to establish that the deceased was not negligent in any manner while Page 12 of 25 C/FA/4112/2017 JUDGMENT travelling in the train and it is on account of negligence on the part of the Railway that the deceased lost his life ?
9. Answering the points framed for determination should not be difficult as I can do no better than refer to and relied upon a very recent pronouncement of the Supreme Court in the case of Union of India vs. Rina Devi AIR 2018 SC 2362. The Supreme Court while discussing the Application of Principle of Strict Liability - Concept of Self Inflicted Injury held as under:
"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 18 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 Page 13 of 25 C/FA/4112/2017 JUDGMENT 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), 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, Page 14 of 25 C/FA/4112/2017 JUDGMENT 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- 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 Page 15 of 25 C/FA/4112/2017 JUDGMENT 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 Page 16 of 25 C/FA/4112/2017 JUDGMENT provide a speedy remedy to an injured passenger or to the dependants of a 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 Page 17 of 25 C/FA/4112/2017 JUDGMENT 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 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 Page 18 of 25 C/FA/4112/2017 JUDGMENT 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 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 Page 19 of 25 C/FA/4112/2017 JUDGMENT 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 Kumar34 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."
10. I may also refer to and rely upon a decision of this Court in the case of Union of India vs. Laxmiben Bhavrav Sendhane reported in 2017(3) GLR pg. 2632.
Page 20 of 25C/FA/4112/2017 JUDGMENT The relevant observations are extracted herein:
"6. As could be seen from the background of the facts, it is not in dispute that even as per the statement of the Guard as well as report of the DRM, the incident has occurred. The much emphasis given on the manner in which the accident occurred that it would not be covered under Section 123(c)(2) of the Railways Act as a 'untoward incident' is required to be considered. Section 123 (c)(2) of the Railways Act, 1989 provide;
"the accidental falling of any passenger from a train carrying passengers."
7. Admittedly, the deceased who was boarding the train fell down resulting in the accident. Therefore, the moot question is about the factum of accident that the deceased fell down. Further, whether he fell down while boarding the train. Therefore, there is no dispute with regard occurrence of the incident that the deceased fell down. Assuming that he fell down while boarding the train, it would not be a negligence as per say inasmuch as the 'untoward incident' covers the accident. Once it is accepted that the accident has occurred, it would be covered as an Page 21 of 25 C/FA/4112/2017 JUDGMENT 'untoward incident', the Railway cannot escape the liability raising the contention on the basis of negligence available under Law of Torts in view of the specific provision under the Railways Act. As discussed, Section 123(c)(2) of the Railways Act provides that the untoward incident would cover such accident that the person, who falls down would also amount to untoward incident. Further, a useful reference can be made to the judgment of the Hon'ble Apex Court in case of Union of India v. Prabhakaran Vijaya Kumar reported in 2008 ACJ 1895. The Hon'ble Apex Court has observed that it would be an untoward incident even if the accident occurs while mounting or alighting the train. A close look at Section 124 read with Section 124(A) of the Railways Act also make the position clear that Section 124 of the Railways refers to the extent of liability and Section 124(A) refer to the compensation on account of untoward incident. The proviso to Section carves out a limited exception where the Railway may not be liable and the case of the deceased does not fall in any of the exceptions provided in the proviso on the basis of which the Railway could avoid the Page 22 of 25 C/FA/4112/2017 JUDGMENT liability. The Tribunal has also considered this aspect referring to the manner of accident and has not accepted the contention that it was the negligence of the deceased. As stated above, Section 124(A) of the Railways Act provide for the strict liability or no fault liability once the incident is proved or established. Section 124 of the Railways Act provides that the Railway could avoid the liability only in certain circumstances as provided in the proviso once the untoward incident has taken place.
8. In other words the provisions suggest the concept of strict liability when the liability would be incurred by the Railway regardless of any negligence. It is required to be mentioned that the doctrine of strict liability can be traced from the judgment of the courts including in case of Rylands Vs. Fletcher, reported in (1868) LR 3 HC 330. The concept of strict liability is based on either the nature of activity, where the law provides for compensation on happening of an accident irrespective of the negligence. Reference can be made to the judgment of the Hon'ble Apex Court in the case of Union of India v/s Prabhakaran Vijaya Kumar reported in 2008 Law Suit (SC) Page 23 of 25 C/FA/4112/2017 JUDGMENT
750. A useful reference can also be made to the judgment of the Hon'ble Apex Court in case of M.C.Mehta and anr. v. Union of India and ors. reported in AIR 1987 SC 1086 (1) which again referred to the aspect of strict liability.
9. As stated, the case in hand does not fall in any of the category referred in proviso to Section 124 and therefore the Railway cannot escape the liability in light of the statutory provision of Section 123(c)(2) read with Section 124(A) of the Railways Act providing for the strict liability or the no fault liability for the incident. One more aspect which is required to be considered is that the contention is raised that he was a bona fide passenger is also discussed and the Tribunal has clearly observed that when such an accident takes place, there is every possibility that the ticket may be lost in such a fatal accident, and therefore, it could not have been presumed that the deceased was not a bona fide passenger.
10. Therefore, having regard to the judgment and order recording the reasons, it cannot be said that there is any error. This court is in complete agreement with Page 24 of 25 C/FA/4112/2017 JUDGMENT the findings and the conclusion arrived at by the Tribunal and it does not call for any interference. The present First Appeal therefore deserve to be dismissed and accordingly stands dismissed. Civil Application stands disposed of accordingly.
R&P is ordered to be sent back
forthwith."
11. Thus in view of the settled position of law, I have no hesitation in coming to the conclusion that the Tribunal committed an error in rejecting the claim application.
12. In the result, this appeal is allowed. The judgment and order passed by the Tribunal dated 31.08.2017 is quashed and set aside. The application filed by the appellants herein under Section 16 of the Act, 1987 read with Section 124(A) and Section 125 of the Railways Act, 1987 is hereby allowed. The appellants herein shall be paid compensation of the amount of Rs.4 lakh with interest @ 6% per annum and in the event if the amount is not paid within two months from the date of receipt of the certified copy of this judgment, then interest @ 9% per annum till the realisation of the entire amount.
J.B.PARDIWALA, J) MAYA Page 25 of 25