Gujarat High Court
Wasim Shamshulhak Shaikh vs Union Of India on 27 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/3301/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3301 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
==========================================================
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 ?
==========================================================
WASIM SHAMSHULHAK SHAIKH
Versus
UNION OF INDIA
==========================================================
Appearance:
MR RATHIN P RAVAL(5013) for the PETITIONER(s) No. 1
MS ARCHANA U AMIN(2462) for the RESPONDENT(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/08/2018
ORAL JUDGMENT
This First 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 dated 6th August 2015 passed by the Railway Claims Tribunal, Ahmedabad Bench at Ahmedabad, in Case No.OA/2012/0226.
Page 1 of 15C/FA/3301/2018 JUDGMENT The short point involved in this Appeal is, whether the appellant, being the elder brother of his deceased handicapped younger brother who died on account of an accident while travelling from Vapi to Lucknow on 31st August 2012 by Train No.19037 (Bandra Terminus - Gorakhpur Avadh Express), could be said to be dependent as defined under Section 123(b) of the Act, 1989 so as to make the claim application maintainable in law.
The claim application filed by the appellant herein came to be rejected by the Tribunal only on the short point that a major brother cannot be said to be dependent on his minor brother.
Mr.Rathin Raval, the learned counsel appearing for the appellant, submitted that the term 'dependent' should not be restricted to only economic dependence but dependence of love, affection, care and protection of the deceased passenger as well. He would submit that the word 'dependent' in clause (ii) of Section 123(b) of the Act, 1989, should not be given restrictive meaning but contextual meaning keeping in view the objective of the statute so as to compensate the unfortunate death of a passenger in a railway accident. In support of his submission, reliance has been placed on a Division Bench decision of the Punjab and Haryana High Court in the case of Dhyan Singh and another v. Union of India and others, reported in AIR 2009 P&H
56. Having heard the learned counsel appearing for the appellant and having gone through the materials on record, the only question that falls for my consideration is, whether the Tribunal committed any error in passing the impugned order.
Page 2 of 15C/FA/3301/2018 JUDGMENT The term 'dependent' has been defined under Section 123(b) of the Act, 1989. The same reads as under :
"123. Definitions.--In this Chapter, unless the context otherwise requires,--
(a) "accident" means an accident of the nature described in section 124;
(b) "dependant" means any of the following relatives of a deceased passenger, namely:--
(i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent;
(ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-
deceased son, if dependant wholly or partly on the deceased passenger;
(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;
(iv) the paternal grandparent wholly dependant on the deceased passenger."
In the case on hand, the deceased who happened to be the younger brother of the claimant was handicapped. The Tribunal recorded the following findings while rejecting the claim application :
"6. Bare perusal of the above, would reveal that under no circumstances, a major brother can be said to be dependant upon minor Orthopaedic brother, particularly when he was too young and was not even employed. Therefore, whether the deceased was married or unmarried would make no Page 3 of 15 C/FA/3301/2018 JUDGMENT difference in the eyes of law. We may observe that similar issue where minor children, who died in train accident and his brother and parents claim compensation on account of untoward accident has been dealt with by various court.
7. We may observe that Division Bench of Hon'ble Gauhati High Court in Mohd. Shaukat Ali v. General Manager (Claims) N.F.Railways (1987)1 GLR 172, after analyzing various statutes i.e. Workmen's Compensation Act, Fatal Accident Act, 1855 & Railway Act, 1890, particularly Section 82-A, inserted later by amending said Act, and tracing history regarding Railways as a carrier, vide a detailed judgment, following various judgments including AIR 1983 All 150 (DB) G.N.Bhandary v. The Railway Administration, held that in the absence of evidence to show that deceased minor had any income or that claimant was dependent on earnings of deceased minor, father as claimant was held to be not entitled to claim compensation.
8. In AIR 1988 Cal 327 (Division Bench), Charubala Saha and other v. Eastern Railway Administration and another, considering Section 82C(2) of Railways Act, 1890, and taking note of Section 2(d) of Workmen's Compensation Act, 1923, it held that it is required to be shown as to whether person claiming compensation were dependent upon the victim at the time of his death. In AIR 2000 P&H 105 Union of India v. Kumar Diptee, noticing provisions of Section 124 & 125 of the Railways Act, 1989, findings of this Tribunal granting award & compensation were not approved holding that claimants, brother of deceased minor who were aged about 8 and 5 years, are not entitled to relief unless they Page 4 of 15 C/FA/3301/2018 JUDGMENT establish "actual dependency" on the deceased. To similar effect, in AIR 2004 AP 228, Union of India v. N.Kantabai, Single Bench, after noticing above judgments of Calcutta and Punjab & Haryana High Court, it was held that there is necessity to prove dependency on the deceased as on the date of the incident.
9. In the present case, the ratio laid down in above judgment is squarely applicable. We may observe that it is not even the suggestion of the applicant in present case that deceased was an earning member and he (applicant) being unemployed or otherwise, was dependant upon him. The converse could be true."
There is nothing to even remotely indicate that the deceased had any income. There is no evidence or material at all to show that the appellant herein was dependent on the earnings of his deceased handicapped younger brother. In such circumstances, if the claim application came to be rejected by the Tribunal, then in my view, no error, not to speak of any error of law, could be said to have been committed.
I find it difficult to take the view having regard to the provisions of the Act, 1989 as submitted by the learned counsel appearing for the appellant that the word 'dependency' should not be restricted only to economic dependence, but dependence of love, affection, care and protection of the deceased passenger as well.
In the aforesaid context, Justice K.N.Saikia of the Gauhati High Court, in the case of Md.Shaukat Ali v. General Manager Page 5 of 15 C/FA/3301/2018 JUDGMENT (Claims) N.F.Railway and another, reported in (1987)1 Gau LR 172, has made some important observations. The Division Bench of the Gauhati High Court was dealing with the matter under the Indian Railways Act, 1890. His Lordship took the view that a rigorous of economic dependence as a criterion for paying compensation for death of children in train accident in the Indian society may appear to be contrary to natural love and affection of the parents. However, His Lordship, ultimately, left the matter for the Legislature to consider. I may quote the relevant observations of His Lordship K.N.Saikia, J. thus :
"19. The law relating to Indian railways is generally based on the English law on the subject. Economic history of England records the evolution of private railways and their assumption of liability for injury on death to their passengers under the common law. The railway undertaker was in general free to limit by special contract their liability as carriers, and a railway passenger was owed whatever duty was expressed or was to be implied in the contract for his carriage. Railway undertakers were not needed to be common carriers of passengers and they might choose whether they would or would not carry passengers. When they did carry, they were to provide all reasonable facilities in their power for this traffic. There were no statutory terms and conditions for the carriage of passengers. Gradually the railways became common carriers whose responsibility according to the common law was that of an insurer. The English common carrier was liable not only for the negligence of himself or of his servants, but also in cases where he had used all reasonable care and forethought. From this responsibility as an insurer, a common carrier Page 6 of 15 C/FA/3301/2018 JUDGMENT could only claim exemption by two important things, namely, the act of God and the act of the King's enemies. The statute has gradually intervened in this relationship. But in case of passengers railways were not insurers. As carriers of passengers the railways were bound to carry them, if they were in a fit condition to be carried, if there was sufficient accommodation in the train and if they were ready to pay the fare for such carriage. Under the Indian Railways Act, 1890, in India railways were not only not insurers of the safe carriage of goods, but they were also not insurers of the safe carriage of passengers; they were not also bailees in respect of such passengers. The position in England was not much different. In E.J. Railway v. Kalidas Mukherjee, 1901 A.C. 396 (403) it was held that there was no obligation on the part of the railways to carry passengers safely. The duty was only to carry them with reasonable care and diligence and to afford them reasonable accommodation. In Jeewan Ram Khettry v. E.J. Railway, 51 Cal 861, it was held that if the railway omitted to use such care and forethought it would be liable for negligence. There was, however, no warranty that the carriage in which passengers were carried should be in all respects perfect for its purpose, i.e. free from all defects likely to cause peril, although the defects were such that no skill, care or foresight could have detected their existence.
20. The duty of a railway administration to use a high degree of care in respect of its passengers did not necessarily depend on any contract with the passengers. It was bound not to injure by negligence any person lawfully on its railway, whether such person had made a contract Page 7 of 15 C/FA/3301/2018 JUDGMENT with it or not. As was held. In Taylor v. M. & S.L. Rly Co., (1895) 1 Q.B. 134 (141) the liability of the railway was founded upon tort or negligence. The liability in respect of death caused by railway accidents, etc., however, was regulated by the Indian Fatal Accidents Act (XII of 1855). The action contemplated by the Fatal Accidents Act was an action for the benefit of the wife and children of the deceased and the right of the deceased's family to obtain compensation was quite independent of the right which the deceased would have had in case he had survived. The concept of economic dependence was not a criterion for eligibility to receive compensation.
21. S. 82-A of the Railways Act, which was inserted by S. 2 of Act 3 of 1943, provides for liability of railway administration for loss occasioned by death of a passenger dying as a result of a railway accident and for personal injury and loss of property whether or not there has been any wrongful act, neglect or default on the part of the railway administration. S. 82-A applied only when the death is of a passenger travelling by train and meeting with an accident. The liability of the railway administration is notwithstanding any other provision of law to the contrary and it is only for loss occasioned by the death of a passenger dying as a result of such accident. The liability is limited by the sub-section (2), now to fifty thousand rupees in respect of one person. So the basis of the liability is "only for loss occasioned by death of a passenger". Is this loss to be confined only to economic loss directly and immediately caused by the death? Thus S. 82-A only provides an Page 8 of 15 C/FA/3301/2018 JUDGMENT alternative remedy to that under the law of torts. The words "notwithstanding any other law to the contrary" refer clearly to the law of torts. This section only provides a cheaper and more expeditious remedy but it is limited remedy. As was held in Shreenath Singh v. East India Railway Administration, AIR 1952 Pat 466 (468), Section 82-A indicates that the liability imposed by it is independent of any wrongful act, neglect or default on the part of the railway administration, such as would entitle a person, who has been injured or suffered a loss, to maintain an action and recover damages in respect thereof. This was reiterated in Ram Chandra Prasad Sinha v. Union of India, AIR 1959 Pat 316 (318). S. 82-A makes the railway Administration liable to pay compensation for loss occasioned by the death of the passenger. The scheme of the group of Sections 82-A to 82-J is different from that of Fatal Accidents Act, 1855, where it is expressly provided that every action under that Act shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death has been caused. Even under the Workmen's Compensation Act, 1923 there is express provision in S. 8 that on the deposit of any money as compensation in respect of a deceased workman, the Commissioner under that Act shall take steps for determining the distribution of the amount of compensation and the compensation shall be apportioned amongst the dependents of the deceased workman. There can, therefore, be no bar to claiming and receiving compensation under any other law, for death of a passenger in a train accident, where no compensation is paid under S. 82-A of the Act.Page 9 of 15
C/FA/3301/2018 JUDGMENT
22. Section 82-C of the Act deals with application for compensation. An application for compensation under Section 82-A arising out of any accident of the nature specified therein may be made "(d) where death has resulted from the accident, by any dependent of the deceased." The Explanation to the Section says that the word "dependant"
has the meaning assigned to it in clause (d) of Section 2 of the Workmen's Compensation Act, 1923 (8 of 1923). This section was added by-Section 13 of Act 55 of 1949.
23. The explanation as to the meaning of the word "dependant" is an instance of legislation by incorporation. The meaning assigned in clause (d) of Section 2 of the Workmen's-Compensation Act, 1923 has been incorporated by reference. It is, however, not stated what is the year of the Workmen's Compensation Act, which has been incorporated by reference. We are, therefore, to take the definition as it stood at the time of inserting the Explanation to S. 82-C. However, the-subsequent amendments of the definition in the Workmen's Compensation Act will not be applicable unless it is otherwise made applicable by the Railways Act itself. It appears the Workmen's Compensation Act, 1923 had clause 2(1)(d) and not simply 2(d) as referred to in the Explanation to S. 82-C. In clause-2(1)(d) the concept of economic dependence was originally" not present. The original clause 2(1)(d) defined 'dependant' as follows:
"(d) 'dependant' means any of the following relatives of a deceased workman namely a wife, husband, parent Page 10 of 15 C/FA/3301/2018 JUDGMENT minor son, unmarried daughter, married daughter who is a minor, minor brother or unmarried sister and includes the minor children of a deceased son of the workman and where no parent of the workman is alive, a paternal grand parent."
24. Interpreting this clause in Re Jamadar Munshi Ram, AIR 1931 Lahore 399, it was observed that there was no analysis of economic dependence. The relatives included in the definition were treated as dependents. Similarly, in Re Karim Dad, AIR 1930 Lahore 657, the question of economic dependence was not considered at all. In Mt. Moti Bai v. Agent, N.W. Rly, AIR 1932 Lahore 1, it was held that the actual dependence on the deceased workman was not the criterion for judging: whether compensation should be paid to the persons mentioned in the definition or to any of them, and the mere proof of the specified relationship would entitle the person concerned to compensation. The intention of the legislature was to compensate those whom the deceased was, having regard to customs and ideas of the people, ordinarily expected to maintain. The Workmen's Compensation Act was passed on the 5th March, 1923, but came into force on the 1st July, 1924. It still forms the basis of the Indian law on the subject but has been substantially amended from time to time. The first amendment was made by Act VII of 1924 when certain minor changes were made in sections 10, 15 and 28. Major changes were made by Act XV of 1933 which altered many sections and also the Schedules in the ???ine recommended by the Royal Commission on Labour in India in 1931. Further changes made by Act XXXVII of 1935. Among other changes were the alteration Page 11 of 15 C/FA/3301/2018 JUDGMENT and enlargement of the definition of "dependant". Amendments were also made in 1937, 1938 and in 1946. The Adaption of (Central Act and Ordinances) Orders 1947 and 1948 changed certain words in the Act. The aforesaid original definition of 'dependant' was amended in 1933 to the following effect:
"(d) "dependant" means any of the following relatives of a deceased workman, namely:-- (i) a widow, minor legitimate son and unmarried legitimate daughter, or a widowed mother; and
(ii) if wholly or in part dependent on the earnings of the workman at the time of his death, a widower, a parent other than a widowed mother, a minor illegitimate son, an unmarried illegitimate daughter, a daughter legitimate or illegitimate if married and a minor or if widowed, a minor brother, an unmarried or widowed sister, a widowed daughter in law, a minor child of a deceased son, a minor child of a deceased daughter where no parent of the child is alive, or, where no parent of the workman is alive, a paternal grand parent".
25. The definition was further amended by Act 8 of 1959 with effect from 1.6.1959 as follows:--
"(d) "dependent" means any of the following relatives of a deceased workman, namely,
(i) a widow, a minor legitimate son, an unmarried legitimate daughter, or a widowed mother; and Page 12 of 15 C/FA/3301/2018 JUDGMENT
(ii) if wholly dependent, on the earnings of the workman at the time of his death, a son or a daughter who has attained the age of 18 years and who is infirm;
(iii) if wholly or in part dependent on the earning of the workman at the time of his death,
(a) a widower,
(b) a parent other than a widowed mother,
(c) a minor illegitimate son, an unmarried illegitimate daughter or a daughter legitimate or illegitimate-if married and a minor if widowed and a minor;
(d) a minor brother or an unmarried sister or a widowed sister if a minor;
(e) a widowed daughter in-law;
(f) a minor child of a pre-deceased son,
(g) a minor child of a pre-deceased daughter where no parent of the child is alive, or
(h) a paternal grand parent if no parent of the workman is alive,"
26. The Workmen's Compensation Act is based on the concept of compensation payable to workmen. A workmen implies-wages or earnings and also the capacity to work.
Page 13 of 15C/FA/3301/2018 JUDGMENT All these factors need not necessarily be present in case of a passenger killed in a train accident. The loss of income or economic loss,. therefore, need not necessarily result from death of a passenger. Strict application of the concept of economic dependence may, in appropriate cases, result in denial of any compensation for the death of a passenger. While amending the Workmen's Compensation Act the legislature was not expected to envisage its effects on liability of Railway to pay compensation for death of passengers in train accident. The foundation of carrier's liability to compensation on the death of a travelling passenger cannot be said to be exactly the same as the foundation of liability of employers to pay compensation on death of their-workmen. While interpreting the word 'dependent' for the purpose of Section 82-A of the Act, this aspect may be necessary to be borne in mind. A rigorous principle of economic dependence as a criterion for paying compensation for death of children in train accident in the Indian society may appear, to be contrary to natural love and affection of the parents. If an entire children's special train were to be destroyed in an accident so that the entire children perished, even then no compensation could be claimed by their parents. The strict application of the criterion of 'dependent' may, therefore, result in a judgment 'ex lege' according to law, but 'ex acquitate' according to equity. However, it is a matter for the legislature to consider. We are to render justice according to law and I accordingly agree with my learned brother."
In view of the above, this Appeal fails and is hereby dismissed. However, once again, the Legislature is reminded to Page 14 of 15 C/FA/3301/2018 JUDGMENT look into the issue as it assumes importance having regard to the present day scenario of the Railways and the railway accidents.
A copy of this judgment be sent to the Ministry of Railways, Union of India, New Delhi.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 15 of 15