Karnataka High Court
Smt. Leelavathamma vs Union Of India (Uoi) on 8 January, 2004
Equivalent citations: II(2004)ACC382, 2004ACJ1761, AIR2004KANT215, ILR2004KAR1172, 2004(2)KARLJ545, AIR 2004 KARNATAKA 215, 2004 AIR - KANT. H. C. R. 655, (2004) 17 ALLINDCAS 835 (KAR), 2004 (17) ALLINDCAS 835, (2004) ILR (KANT) (1) 1172, (2004) 16 INDLD 597, (2004) 2 TAC 531, (2004) 3 ACJ 1761, (2004) 2 KCCR 1153, (2004) 2 KANT LJ 545, (2004) 2 RECCIVR 757, (2004) 2 ACC 382
Bench: Tirath S. Thakur, Huluvadi G. Ramesh
JUDGMENT
1. This appeal arises out of an order passed by the Railway Claims Tribunal, Bangalore, whereby Original Application No. 10 of 1998 under Section 124-A of the Railways Act, 1989, for payment of compensation has been dismissed.
2. The appellant who happens to be the mother of late Sri Jagadish filed an application under Section 124-A of the Railways Act, 1989, before the Tribunal for payment of compensation on account of the death of her son in an untoward incident that occurred while the deceased was travelling on passenger train No. 284/A between Bhadravathi to Bangalore. The applicant's case in the claim petition was that the deceased had purchased a ticket at Bhadravathi station and boarded the train at 11.15 p.m. for Bangalore. Since the railway compartment was heavily crowded, he fell off due to a jerk somewhere on the way resulting in his death. The respondent-Union of India contested the claim on several grounds. It was contended that the deceased was travelling on the footboard in a state of intoxication and had fallen off intoxication and had fallen off from the same between the two railway stations mentioned above resulting in his death. The case according to the respondents therefore fell within the purview of proviso (d) to Section 124-A of the amended Railways Act, 1989.
3. In support of her case, the claimant-appellant stepped into the witness-box apart from examining A.W. 2-Shantharaju. The respondents examined five witnesses in support of their version apart from placing reliance upon Ex. R. 1 to Ex. R. 3. By its order dated 8-10-1998, the Tribunal dismissed the claim petition holding that the deceased was not proved to be a bona fide passenger on the train afore mentioned nor was any ticket produced by the claimant-appellant in support of her claim that he was. The Tribunal observed that there was material to suggest that the deceased was in a state of intoxication with the result that the incident involving his death could not be said to be an untoward incident within the meaning of Section 124-A. The claim petition was on the above findings dismissed, hence the present appeal.
4. Appearing for the appellant, Mr. Thirthappa, contended that the finding recorded by the Tribunal regarding the deceased being a passenger on the train was contrary to the weight of evidence on record. He urged that the material on record sufficiently established that the deceased was indeed a passenger travelling on train No. 284/A between Bhadravathi and Bangalore and that he had died because of his falling off the train somewhere on the way. He further contended that the observation made by the Tribunal that the deceased was intoxicated at the time of the accident was without any basis whatsoever, and so was the inference that he had fallen off the train on account of the alleged intoxication. The claimant was according to the learned Counsel entitled to payment of compensation of Rs. 4 lakhs even when on the date of the accident, the stipulated amount was restricted to only Rs. 2 lakhs. The decision of the Supreme Court in Rathi Menon v. Union of India, : was called in aid by the learned Counsel to urge that the benefit of the subsequent amendment to the Act stipulating a higher amount of compensation to victims was available even in cases where the accident had taken place prior to the amendment. What was important argued the learned Counsel was the date of determination of the claim and not the date on which the accident had taken place.
5. On behalf of the respondent, it was contended by Mr. Sanjay Gowda, that the Tribunal had rightly come to the conclusion that the deceased was not a bona fide passenger on the train. He urged that in the absence of a valid ticket issued for the journey undertaken by the deceased, the question of his being a bona fide passenger did not arise. No such ticket having been produced by the appellant, the deceased could not be said to be a bona fide passenger nor could any incident involving his death be treated to be an untoward incident within the meaning of Section 124-A. He further submitted that the deceased had fallen off from the train on account of his being intoxicated which brought the case of the appellant within the purview of proviso (d) to Section 124-A of the Act. He contended that although the Railways had not examined any witness to establish that deceased was in a state of intoxication at the time of the accident, the report submitted by the Investigating Officer in the criminal case registered in connection with the incident was sufficient to prove the said fact.
6. We have given our anxious consideration to the submissions made at the bar. The first and the foremost question that falls for consideration is whether the deceased was a passenger on train No. 284/A between Bhadravathi and Bangalore. The Tribunal has answered that question in the negative primarily because the appellant had not been able to produce the ticket purchased by the deceased at the time he boarded the train at Bhadravathi. We find it difficult to subscribe to that view. We say so for two precise reasons. The first is that the deceased was a passenger on the train in question even according to the version of the respondent. In the objections filed on behalf of the respondent, the specific case that was set up by the respondent was that the deceased had boarded train No. 284/A (Fast Passenger) at 23.20 hours at Bhadravathi Railway Station, The objections go on to state that instead of occupying a seat inside the compartment, the deceased had chosen to travel on the footboard in a state of intoxication. The objections allege that since the deceased was in a state of intoxication, he fell down from the train between Bhadravathi and Tarikere. It is therefore nobody's case that the deceased was not on board the train at the time of the accident. The admitted case of both the parties is that the deceased was travelling by Train No. 284/A between Bhadravathi and Bangalore on the fateful night and that he had fallen off somewhere between Bhadravathi and Tarikere. Inasmuch as the Tribunal made out a case which neither party had set up, it committed a palpable error.
7. The second and the only other aspect which the Tribunal had adverted to in support of its view was that the appellant had not produced the ticket which the deceased is alleged to have purchased. The non-production of the ticket is not in dispute. That does not however tantamount to saying that the deceased was a ticketless traveller. The respondent had also not set up any such case in the objections filed by it. If the respondent's case was that the deceased was travelling without a ticket and was not therefore a bona fide passenger, there was nothing which prevented it from setting up that case. The absence of any plea in the objections that the deceased was a ticketless traveller would therefore disentitle the respondent from asserting any such defense at the hearing. That apart just because the train ticket had not been produced could not necessarily lead to the conclusion that the passenger had boarded the train unauthorisedly or was travelling without a ticket. The fact that the deceased had fallen off the train and his body was recovered from the track in an injured condition hours after the incident and transported to Tarikere Railway Station and thereafter subjected to post-mortem clearly shows that the body was handled at various stages by different agencies. The loss of the train ticket in the course of its recovery from the site, transportation and post-mortem and other procedures can well be explained and understood. In the totality of these circumstances, we have no hesitation in holding that the deceased was a travelling as a bona fide passenger on the Bhadravathi -Bangalore train on the fateful night.
8. The only other aspect that requires to be considered is whether the deceased had fallen off the train on account of his being intoxicated. That was the version given by the respondent-Railways in support of their disclaimer of the liability under Section 124-A. The witnesses examined by the Railways do not however make any mention about the alleged intoxication of the deceased either at the time the deceased boarded the train or at any time thereafter. R.W. 1-Shivanna is the driver of BDVT Goods 'N' Special Train from Berur to Bhadravathi. According to his deposition, he noticed in the focus of his engine light a body of a person lying on the right side of the track at 1.20 a.m. around 8 kms. short of Shivapura Railway Station. Since it was a 'S' curve and the train was heavily loaded, he could not stop the same at the place where the body was found lying. He stopped the train at Shivapura Railway Station and informed the Station Master about the same.
9. R.W. 2-B.R. Dinakar is the Station Master of Railway Station at Shivapura. According to his deposition, the driver of BDVT Special Down Train filed a memo reporting about a dead body at kilometre 8 from Shivapura Station. He immediately informed the control to advise BDVT station for getting the police and for taking further action.
10. R.W. 3-T. Chandrashekar is the Station Master at BDVT station. He has in his deposition stated that he received a message from Shivapura station through the control message at 2.30 hours on 22-5-1997 regarding the presence of a dead body at kilometre 8 from Shivapura Station. This message was entered in the control order message book and was passed on to RPASI. A copy of the message has been marked Ex. R. 2.
11. R.W. 4-N. Lakshmipathi is the Duty Station Master of Shhnoga Railway Station. According to his deposition he had received a message from Shivapura informing them about the presence of a dead body lying at kilometre 8 from Shivapura.
12. R.W. 5-G. Krishnamurthy, is the guard of Train No. 878 passenger between Berur to Shimoga who was instructed to pick up the body from the place where it was lying and who handed over the same to Station Master, Tarikere station at 9.00 hours on 22-5-1997.
13. None of the witnesses mentioned above and examined by the respondents were witnesses to the incident nor has anyone of them claimed to have seen the deceased in an intoxicated condition while boarding or travelling on the train. The post-mortem report marked Ex. A. 2 simply records that the deceased had died due to shock and haemorrhage as a result of crush injury and fracture of femur of right thigh. The post-mortem report does not make any suggestion about the deceased having consumed liquor nor is there anything to show that the contents of the stomach were sent for examination to find out whether the deceased had consumed any alcoholic drinks by him. In the circumstances, there is really no basis for holding that the deceased was in a state of intoxication at the time of the incident. Mr. Gowda had however placed considerable reliance upon certain remarks made in the report submitted by the police under Section 174 of the Cr. P.C. He urged that according to the remarks made by the Investigating Officer, on the basis of the statements made by Mr. Shantharaju and his wife, the deceased was intoxicated and was sitting on the footboard when he fell off. It was contended that the said observations having been made on the basis of the statements recorded by the Investigation Officer, during investigation could be made use of in the claim proceedings and could furnish a basis for holding that the deceased was indeed intoxicated at the time of the incident. We have no hesitation in rejecting that submission out of hand. The remarks made in the report submitted by the Investigation Officer cannot constitute substantive evidence for purposes of proving the alleged intoxication of the deceased on a question of fact. The remarks are in any case based on certain statements which the police appears to have recorded in the course of the inquest conducted by him. Such statements themselves could not constitute substantive evidence and could at best be used for purposes of contradicting those, to whom they were attributed. Out of the witnesses so examined by the police in the course of the inquest, Mr. Shantharaju was one who is alleged to have stated that the deceased was intoxicated. It is interesting to note that Mr. Shantharaju had been examined by the appellant as a witness in support of her case. His version in the said statement was that the witness and his wife together with the deceased were travelling to Bangalore by Train No. 284/A from Bhadravathi. While the witness and his wife were travelling in one compartment, the deceased was travelling in another compartment. When they reached Bangalore, the witness and his wife did not find the deceased at the railway station. It was only subsequently that they received information that he had died by falling off from the train. In the cross-examination of this witness, the respondent-Railways have not confronted him with the alleged previous statement made by the said witness before the police. In the ordinary course, if the respondent wished to rely upon the version given by the witness in the course of the inquest proceedings, the respondent ought to have confronted the respondent with the said statement. Not only that the statement allegedly made by the witness had to be then proved by examining the officer who had recorded the same. It was only if this procedure was adopted with the alleged previous statement could be utilised by the respondents for purposes of challenging the credibility of the witness or the correctness of the version given by him. Nothing of this sort was however done by the respondent in the course of the trial before the Tribunal. On the contrary, in cross-examination, one of the suggestions which the respondent made to Mr. Shantharaju was that the deceased had been murdered and thrown off, a case which was never set up or alleged in the objections. In the circumstances, therefore, we find it very difficult to subscribe to the view that the deceased was intoxicated or that there is any acceptable material on record to support that allegation. The finding recorded by the Tribunal on that account therefore, also deserves to be reversed and is hereby reversed.
14. What is the amount payable to the appellant is the next question that falls for consideration Rule 3 and the Schedule to the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1990, prescribed a total compensation of Rs. 2 lakhs only at the time the incident had taken place. By a subsequent amendment introduced in October 1997 and made effective from 1-11-1997, the said amount was raised to Rs. 4 lakhs. It was argued on behalf of the appellant that although on the date of the accident, the amount of compensation payable was Rs. 2 lakhs only, the benefit of the subsequent amendment was available to the claimants if the same had come into force on the date of determination of the claim by the Tribunal. The decision of the Supreme Court in Rathi Menon's case, supra, relied upon by the appellant supports that view. Their Lordships have in that case while examining a similar question authoritatively held that even when the amount of compensation payable by reference to the date of accident is lower, what is important is the amount of compensation payable on the date of the determination of the claim by the Tribunal. The accident in the said case had also taken place before the amendment enhancing the amount of compensation came into force. The benefit of the amendment was however extended to the claimant by their Lordships, on the reasoning that is available in the following paragraph from the judgment:
"The right of the injured to claim compensation as well as the liability of the Railway Administration are both reposed in Section 124-A of the Act, The right is to maintain an action and recover the damages. The liability is to 'pay compensation to such extent as may be prescribed from time to time'. The relevance of the date of untoward incident is that the right to claim compensation from the Railway Administration would be acquired by the injured on that date. The statute did not fix the amount of compensation, but left it to be determined by the Central Government from time to time by means of rules. Hence, the time of ordering payment is more important to determine as to what is the extent of the compensation which is prescribed by the rules to be disbursed to the claimant. Though the word 'compensation' is not defined in the Act or in the Rules it is the giving of an equivalent or substitute of equivalent value. It means when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims in a speedier measure. If a person files a suit the amount of compensation will depend upon what the Court considers just and reasonable on the date of determination. Hence, when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination".
15. In the light of the above, we have no difficulty in holding that even when on the date of the accident, the amount of compensation payable was only Rs. 2 lakhs, the claimant would be entitled to the benefit of the amendment which had come into force on the date of determination of the amount of compensation by the Tribunal. The decision of the Division Bench of this Court to the contrary in D.B. Avalakki v. Union of India, (DB) can no longer be said to good law in the light of the pronouncement of the Supreme Court in Rathi Menon's case.
16. The only other question that needs to be examined is whether the claimant is entitled to payment of interest. Mr. Sanjay Gowda argued that the scheme of the Act and the Rules framed thereunder envisaged a lump sum payment of Rs. 4 lakhs in the case of death. There was no provision according to him for payment of interest on the amount of compensation payable under the Rules. We do not think so. The Supreme Court has in Rathi Menon's case, supra, awarded interest on the amount of compensation payable according to the amended statutory provision. Even in D.B. Avalakki's case, supra, this Court had recognised the right of the claimant and the power of the Tribunal to award a suitable rate of interest on the amount held payable. Having regard to the fact that the legislation under which the payment is being claimed is beneficial in nature and the amount held payable to the claimant has been withheld from the claimant and utilised by the Railways, we see no reason why a suitable rate of interest cannot be awarded to compensate the claimant for the prejudice that she has suffered on account of its denial. The current bank rate of interest being around 6% on fixed deposits, we deem it just and proper to award the said rate from the date of determination by the Tribunal i.e., 8-10-1998 till actual payment. We consider it unnecessary to make any direction regarding payment of interest for the period previous to the date of determination primarily because we are giving to the appellant the benefit of the amended provisions under which the amount of compensation has been raised from Rs. 2 lakhs to Rs. 4 lakhs. The grant of that benefit in our view sufficiently compensates the appellant for the withholding/non-payment of the amount of Rs. 2 lakhs that envisaged by the un-amended provision at the time of the incident.
17. In the result, this appeal succeeds and is hereby allowed. The impugned order passed by the Tribunal is set aside and the claim petition filed by the appellant allowed with the direction that the respondent shall pay to the appellant compensation at Rs. 4 lakhs with interest at the rate of 6% p.a. from 8-10-1998 till the date of deposit. Keeping in view the fact that the claimant is an illiterate village lady, we deem it just and proper to make suitable directions for investment of the amount held payable to her. We direct that out of the amount which the respondent will deposit with the Tribunal, the Tribunal shall disburse a sum of Rs. 1 lakh to the appellant by cheque drawn in her name while the remaining amount shall be invested by it in a scheduled bank in a term deposit for a period of five years. The bank shall be instructed by the Tribunal to disburse to the appellant interest accruing on the said deposit every three months. Deposit by the Railways to be made within two months. The parties to bear their own costs.