Gujarat High Court
Union Of India vs Prakashbhai Babulal Chitroda on 20 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/3165/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3165 of 2017
With
CIVIL APPLICATION NO. 2 of 2017
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UNION OF INDIA
Versus
PRAKASHBHAI BABULAL CHITRODA
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Appearance:
MS ARCHANA U AMIN(2462) for the PETITIONER(s) No. 1
MR RUTUL P DESAI(6498) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/06/2018
ORAL ORDER
1. This First Appeal under Section 23 of the Railway Tribunal Act, 1987 is at the instance of the Union of India through General Manager, Western Railway, questioning the legality and validity of the judgment and order passed by the Railway Claims Tribunal, Ahmedabad Bench, Ahmedabad, in Case No.OA-2015/0137.
2. The application filed by the respondents herein under Section 16 of the Railway Claims Tribunal Act, 1987, read with Sections 124A and Section 125 respectively of the Railways Act, 1989, came to be allowed by the Tribunal. The claim was for Rs.4,00,000/- by way of compensation on account of death Page 1 of 20 C/FA/3165/2017 ORDER of one Dakshaben Prakashbhai Chitroda.
3. The facts giving rise to this First Appeal may be summarised as under:
3.1 The respondents herein are the original applicants who preferred application under Section 16 of the Act, 1987, read with Sections 124A and 125 of the Railways Act, 1989, for compensation to the tune of Rs. 4,00,000/- with interest from the appellant herein on account of death of the wife of the respondent No.1 and mother of the respondents No.2 and 3.
3.2 The deceased Dakshaben Prakashbhai Chitroda died on account of an accident which occurred at the time when she was trying to board a train. The deceased was travelling from Bhaktinagar Railway station to Chorwad Railway station by Train No. 59459 Rajkot-Veraval Passenger.
She accidentally fell down as there was heavy rush in the compartment of the train. The deceased sustained multiple injuries on various parts of her body and succumbed to the injuries during treatment in the hospital.
4. In such circumstances, the claim came to be filed before the Tribunal for compensation. The claim was opposed by the Page 2 of 20 C/FA/3165/2017 ORDER appellant herein substantially on the ground that the death occurred on account of a very freak accident and such accident could not be attributed to any negligence of the railways.
5. The stance of the Railways before the Tribunal was that the incident would not fall within the provisions of Section 123(c)(2) of the Railways Act.
6. The Tribunal, for the purpose of adjudicating the claim, thought fit to frame the following issues:
1) Whether the deceased was travelling as a bonafide passenger by Train No. 59459 on 05.03.2015 ?
2) Whether the said incident is 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) What order ? What relief ?
7. The Tribunal proceeded to answer the 5 issues referred to above as under:
"These three issues are taken up for Page 3 of 20 C/FA/3165/2017 ORDER consideration simultaneously for the sake of convenience, as they are inter- related.
8. It is contended by the Applicant in the Claim Application that on 05.03.2015, the deceased was travelling from Bhaktinagar Railway station to Chorwad Railway station by Train No. 59459 Rajkot-Veraval Passenger. During the course of journey, the deceased accidentally fell down from the running train near Bhaktinagar Railway station at Km. No.5/8, as a consequence of which she sustained multiple injuries on different parts of her body and died while treatment in the Hospital. The applicant further averred that the victim was travelling with a Railway travelling ticket bearing No.A 53119411 ex. Bhaktinagar to Chorwad dated:
05.03.2015 and the same is exhibited as A-5.
In order to substantiate the said facts, the Applicant No.1 has filed his affidavit in evidence in which he has reiterated the contents as mentioned in the claim application. The Respondent did not choose to cross Page 4 of 20 C/FA/3165/2017 ORDER examine the applicant to discard his testimony, as it is a hearsay evidence. Therefore, the said contentions of the applicant goes unchallenged.
Exh.A-1 reveals Memo issued by SS-Bhaktinagar to SIPF/SIGRP regarding information about accident of one lady named Dakshaben run over by Dn.
Passenger No. 59459. Exh. A-2 Inquest Panchnama indicates that her dead body was been identified by one Jitendrabhai W Jiteshbhai Mansukhbhai Pitroda, who was elder brother of the deceased's husband. Nothing has been found/seized by the Police from the said dead body. Panchas had also suggested PM report of the dead body to know the exact cause of the death. Exh. A-3 Panchnama of place of incident indicates that the incident took place at the Railway track PF. No.1 at Bhaktinagar Railway station. Scattered blood spots were seen on the railway sleepers & on black metals. The incident occurred while boarding the train, the deceased fell down from the train & sustained injuries. Exh.A-4 PM report reveals that cause of the death is cardio- respiratory failure due to hemorrhagic Page 5 of 20 C/FA/3165/2017 ORDER shock on account of Poly trauma.
DRM Investigation Report indicates, on the basis of the ticket that the deceased was a bonafide passenger but asserts that the accident occurred due to her own negligence while boarding the running train, for which she herself is responsible.
The respondent Railway
Administration has filed an affidavit
by one Shri Atul Kumar Bhatt, Guard at the Train No. 59459 on 05.03.2015, who stated in his Affidavit filed on 25.4.2016 that while boarding the running train, she fell down & seriously injured. He immediately informed the SS-Bhaktinagar on VHF set regarding the incident & called 108 ambulance. He also issued memo to SS- Bhaktinagar for further necessary action.
The detailed scrutiny of the above documents make it apparently clear that the accident fall took place, but Respondent attributes negligence to the deceased, though no cogent evidence has been filed in support of the above Page 6 of 20 C/FA/3165/2017 ORDER mentioned contention of the Respondent. At this stage, it is to be stated that the Hon'ble Apex Court in the case of JAMEELA & Others Vs. Union of India (2010 ACC 800 SC) has laid down that 'even it is to be assumed that the deceased fell down from the train due to his own negligence, it would not have any effect on the compensation payable under Section 124A of the Railways Act'.
The Respondent stated in its DRM report that the deceased fell down while boarding the running train. At this stage, it is worthwhile to quote another ruling in Union of India v. Prabhakaran Vijaya Kumar, I (2009) ACC 270 (SC)= 2008 ACJ 1895 (SC), "it is also held that Railway Administration was held liable to pay compensation for untoward incident because it will not make any difference whether deceased was actually inside the train or trying to get into such train when he fell down. Thus if victim died as a result of accidental falling down from the train, he is covered within the meaning of untoward incident for which Railways is liable to compensate the dependents Page 7 of 20 C/FA/3165/2017 ORDER of the victim".
9. Keeping in view, the above judicial pronouncement, facts and evidences available on record, it is held that the victim sustained injuries as a result of accidental fall from the running train in an "untoward incident"
within the provision of Section 123(c) (2) of the Railways Act, 1989 and the applicant is entitled for compensation.
There is no legal impediment on coming to the conclusion that the deceased must have fallen down from the train.
10. In so far as the question of bonafide passenger is concerned, as per the applicant, the deceased was having Railway ticket bearing No. A 53119411, which is also admitted in the DRM report. Hence there are no legal impediments in coming to the conclusion that deceased was a bonafide passenger on the day in question & she died due to falling down from the train.
11. Once it is established that the deceased died on account of an accidental fall from the train, the incident squarely falls within the definition of untoward incident u/s Page 8 of 20 C/FA/3165/2017 ORDER 123(c)(2) of the Railways Act.
Moreover, it is now well settled that Sec.124-A lays down strict liability or no fault liability in case of railway accidents and hence, if a case comes within the purview of Section 124-A, it is wholly irrelevant, as to who was at fault. In the instant case, the material placed on record reveals that the accident in which the deceased had died is clearly not covered by the proviso to Section 124A and that the incident does not occur because of any of the reasons mentioned in the clauses
(a) to (e) of the proviso to Section 124-A.
12. Therefore, on the facts and circumstances of the case, it is held that the deceased was travelling as a bonafide passenger on the train and died as a result of the the injuries sustained by her in an untoward incident. Hence, the findings on Issues No.1, 2 & 3 are in favour of the applicant.
Regarding Issue No.4:
13. The Applicants are Husband & minor Page 9 of 20 C/FA/3165/2017 ORDER children of the deceased. In support of their dependency, the Applicants produced true copy of ration card, which contains names of all the Claimants including name of deceased, which shows relationship of applicants with the deceased & is exhibited as A/6. Evidence of the Applicants goes unchallenged on the point of relationship with the deceased. As against this, the Respondent Railway Administration did not adduce any contra evidence to show that the present applicants are not the dependents of the deceased. Hence it can safely be concluded that the applicants are the dependents of the deceased within the meaning of Section 123(b) of the Railways Act. Hence, finding on issue No.4 is in the affirmative.
On the facts and circumstances of this case, I find it just and proper to award the compensation amount to Applicants as under:-
1) Prakashbhai Babulal Chitroda,-Rs.2,00,000/-
Aged 37 yrs.
Husband of the deceased passenger.
Page 10 of 20 C/FA/3165/2017 ORDER2) Jatin Prakashbhai Chitroda, - Rs.1,00,000/-
Aged 13 years, Minor Son of the deceased passenger.
3) Prince Prakashbhai Chitroda, -Rs.1,00,000/-
Aged 10 years, Minor Son of the deceased passenger.
ORDER
14. The application is allowed. The respondent Western Railway shall pay the applicants a sum of Rs.4,00,000/- (Rs.Four lakhs only) as compensation. The awarded sum will carry simple interest @ 6% per annum from the date of the application till the date of the award. The Respondents shall pay the aforesaid amount together with the interest within a period of 60 days from the date of the order, failing which the applicants are entitled to get interest @ 9% per annum from the date of default.
i) The compensation amount payable to the applicants together with proportionate interest shall be paid to them through ECS, once the applicants give all the banking details including photo copy of the pass book to the concerned Railway Authority.
Page 11 of 20 C/FA/3165/2017 ORDERii) As far as Applicant No.2 & 3 are concerned, the entire amount awarded to the minor sons, shall be deposited in a Nationalized Bank till they attain the age of majority.
iii) No order as to costs."
8. Being dissatisfied with the judgment and order passed by the Tribunal, the Union of India is here before this Court with this appeal.
9. Ms. Archana Amin, the learned standing counsel appearing for the railways while assailing the impugned judgment and order passed by the Tribunal submitted that as the accident occurred while the deceased was boarding the train, no negligence could have been attributed to the Railways. She would submit that the accident would not fall within the provision of Section 123(c)(2) of the Railways Act. In such circumstances, Ms. Amin, the learned counsel very vehemently submitted that the Tribunal committed a serious error in allowing the application and passing an order of compensation.
10. Mr. Hardik Mehta, the learned counsel appearing for the Page 12 of 20 C/FA/3165/2017 ORDER respondents has opposed this appeal vehemently. Mr. Mehta would submit that the issue raised in this appeal is no longer res-integra. Mr. Mehta placed strong reliance on a decision of this Court in the case of Union of India v. Laxmiben Bhavrav Sendhane reported in 2017(3) GLR pg. 2632.
Mr. Mehta would submit by placing reliance on the decision of this Court referred to above that once it is accepted that the accident occurred, it would be covered as an "untoward incident". In such circumstances referred to above, Mr. Mehta would submit that as the issue is covered, this Court need not admit this First Appeal and dismiss the same, in limine.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is that whether the Tribunal committed any error in passing the impugned judgment and order. Let me straightway look into the decision of this Court in the case of Laxmiben Bhavrav Sendhane (supra), I may quote the relevant observations :
"3. Learned Advocate Ms. Amin has referred to the papers and the R&P and submitted that the deceased husband of the claimant was trying to catch the moving train and fell down resulting in the accident. She Page 13 of 20 C/FA/3165/2017 ORDER submitted that the affidavit of one Vimal Sharma, the Guard of Train No. 59076 has clearly stated that when the train departed from Madhi Railway Station at 19:20 hrs. he saw one unknown person trying to catch the running train and did not catch the train and fell down under the track. Learned Advocate Ms. Amin has also referred to the DRM Report and submitted that even as per this report, the death of the deceased was due to falling down while boarding the running train, and therefore, it was his own negligence. Learned Advocate Ms. Amin therefore tried to submit that the Tribunal has failed to appreciate this relevant evidence that the accident occurred when the deceased was trying to board the moving train resulting in the accident, and therefore, negligence could be attracted to him. Learned Advocate Ms. Amin therefore submitted that it would not be an 'untoward incident' as defined under Section 123(c) (2) of the Railways Act. Further, she tried to submit that from the panchnama etc., the ticket was not found and therefore he was not a bona fide passenger.
4. Learned Advocate Shri P.J.Mehta for the Respondent however referred to the impugned judgment and order and submitted that it Page 14 of 20 C/FA/3165/2017 ORDER has been clearly observed and found on appreciation of the material and evidence that the deceased was a bona fide passenger. He submitted that the incident has occurred which is confirmed as per the statement recorded and relied upon by the Appellant - Railway. The negligence which is attributed is that the deceased tried to catch the moving train would also not be a ground to deny the compensation raising such contention of negligence. Learned Advocate Shri Mehta therefore submitted that Section 123(c)(2) read with Section 124(A) of the Railways Act lays down the strict liability or no fault liability when the accident occurs. He therefore submitted that the present Appeal may not be entertained.
5. In view of these rival submissions, it is required to be considered whether the present Appeal deserve consideration.
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 Page 15 of 20 C/FA/3165/2017 ORDER 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 '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 Page 16 of 20 C/FA/3165/2017 ORDER 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 Cout 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 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 Page 17 of 20 C/FA/3165/2017 ORDER 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)
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.
Page 18 of 20 C/FA/3165/2017 ORDER9. 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 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."
Page 19 of 20 C/FA/3165/2017 ORDER12. In my view, the accident of late Dakshaben could be said to be covered under Section 123(c)(2) of the Railways Act.
There is no dispute with regard to the occurrence of the accident. It is admitted position that the deceased while boarding the train, fell down accidentally. The Supreme Court in the case of Union of India v. Prabhakaran Vijaya Kumar reported in 2008 ACJ 1895(SC) has observed that it would be an untoward incident even if the accident occurs while mounting or alighting the train.
13. I am convinced that the issues arising in this appeal are squarely covered by the decision of Laxmiben (supra).
14. I see no good reason to disturb the findings recorded by the Tribunal. In the result, this appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J) MAYA Page 20 of 20