Karnataka High Court
The Union Of India vs Sri K S Krishnamurthy on 18 July, 2012
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 18TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
M.F.A.NO.9596/2008 C/W M.F.A.NO.6303/2009
M.F.A.NO.9596/2008:
BETWEEN:
THE UNION OF INDIA
REP BY ITS GENERAL MANAGER
SOUTH WESTERN RAILWAY
HUBLI
... APPELLANT
(BY SRI N S SANJAY GOWDA &
SRI BYREGOWDA.N, ADVS.)
AND:
1. SRI K S KRISHNAMURTHY
S/O LATE SHANKARAPPA
SINCE DECEASED BY HIS LRS.
R-2 AND R-3
2. SRI S SRINIVAS
S/O K S KRISHNAMURTHY
AGED ABOUT 45 YEARS
3. SRI K RAMESH
S/O K S KRISHNAMURTHY
AGED ABOUT 43 YEARS
ALL ARE RESIDING AT NO.37
RAMASWAMY COMPOUND
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GOODSHED COLONY
TUMKUR
... RESPONDENTS
(BY SRI M A MALVI &
SRI R HIREMATHAD, ADVS. FOR R-2 & R-3)
THIS MFA IS FILED U/S.23(1) OF RCT ACT
AGAINST THE JUDGEMENT DATED 13.6.2008
PASSED IN O.A.NO.78/2005 ON THE FILE OF THE
RAILWAY CLAIMS TRIBUNAL, BANGALORE BENCH,
AWARDING A COMPENSATION OF RS.4,00,000/- WITH
INTEREST @ 9% P.A FROM THE DATE OF ORDER TILL
PAYMENT.
M.F.A.NO.6303/2009:
BETWEEN:
1. SRI K S KRISHNAMURTHY
S/O LT SHANKARAPPA
SINCE DECEASED BY HIS LRS.
R-2 AND R-3
2. SRI SRINIVAS
S/O K S KRISHNAMURTHY
AGED 46 YEARS
3. SRI K RAMESH
S/O K S KRISHNAMURTHY
AGED 41 YEARS
ALL ARE R/A NO.37
RAMASWAMY COMPOUND
GOODSHED COLONY
SHANTINAGAR, TUMKUR
... APPELLANTS
(BY SRI M A MALVI &
SRI R HIREMATHAD, ADVS. FOR R-2 & R-3)
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AND:
THE UNION OF INDIA
REP BY ITS GENERAL MANAGER
SOUTH WESTERN RAILWAY
HUBLI
... RESPONDENT
(BY SRI N S SANJAY GOWDA &
SRI BYREGOWDA.N, ADVS.)
THIS MFA IS FILED UNDER SECTION 23(1) OF
RAILWAYS CLAIMS TRIBUNAL ACT AGAINST THE
JUDGMENT DATED 13.6.2008 PASSED IN
O.A.NO.78/2005 ON THE FILE OF THE RAILWAY
CLAIMS TRIBUNAL, BANGALORE, ALLOWING THE
CLAIM PETITION FOR COMPENSATION SEEKING
INTEREST FROM THE DATE OF PETITION TILL ITS
REALISATION.
THESE APPEALS COMING ON FOR ADMISSION
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
M.F.A.No.9596/2008 is filed by the South Western Railway against the award made by the tribunal inter alia contending that tribunal should not have awarded compensation as the deceased was negligently crossing railway tracks at the time of accident.
2. M.F.A.No.6303/2009 is filed by claimants for disallowing interest from the date of application. For the
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reasons stated in Misc.Cvl.15976/2009, delay of 348 days in filing the appeal is condoned.
3. I have heard learned Counsel appearing for claimants and learned Counsel appearing for South Western Railway.
4. The points for consideration are as follows:
i) whether claimants are entitled to compensation under Section 124 of the Railways Act, 1989, when deceased was hit by a train when she was crossing railway track in Malleshwaram railway station?;
ii) whether claimants are entitled to interest from the date of application?
5. The admitted facts established from evidence on record are:- on the fateful day, deceased (bonafide passenger) along with her husband wanted to travel from Bangalore to Tumkur for which purpose, they had purchased tickets. The deceased was aged about 78 years. In the normal course, scheduled train from Bangalore to Tumkur would stop at platform No.1. On
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the fateful day, it was announced that the schedule train would arrive at platform No.2. The deceased in a hurry to reach platform No.2 was crossing railway track between platform Nos.1 and 2. At that time, she was knocked down by a train, which was proceeding from Bangalore to Tumkur.
It is not in dispute and cannot be disputed that there was change in the platform at the last moment.
The railway authorities have not been examined to prove that there was announcement regarding change of platform by giving sufficient time to passengers to move from platform No.1 to platform No.2. The railway authorities have not been examined to prove that adequate facilities were provided to aged and sick people.
6. The learned Counsel for South Western Railways would submit that there is a foot over bridge connecting platform Nos.1 and 2. Therefore, deceased should have made use of foot over bridge.
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7. As deceased was aged about 78 years, we cannot except her to climb foot over bridge to reach platform No.2. The tribunal finding these faults with the railway authorities has awarded compensation.
8. In a Division Bench judgment of Kerala High Court reported in 2011 (2) KLT 1001 (in the case of Jayalakshmi Vs. Union of India) it is held at paragraphs 11 and 12:
"11. Groomed in Anglo Saxon tradition it is only natural that one starts with an attempt to locate 'fault' or 'breach of the duty to take care' before ordering compensation. But modern jurisprudence does not invariably look for fault as the foundation of liability. Our jurisprudence has covered major distance now and the journey from 'fault' to 'suffering' though long and tiresome, has been real. State as patron patriarch recognizes suffering or injury as the foundation of liability and ensures that the victim who has been left to suffer injuries non voluntarily in accidents is compensated. Like S.140 of the M.V.Act and S.163A of the M.V.Act, Chapter XIII of the Railways Act also accepts that
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involuntary injury/suffering/misery deserves to be compensated. This principle- that the victim deserves to be compensated, founded on social welfare themes is accepted as right and duty in our socialist republic. The ones who have the capacity to pay-the monopoly operators-like the Railways and the Insurance companies are saddled with the obligation to compensate the unfortunate victim. This legal regimen accepts that the victim or sufferer does not suffer any injury voluntarily but the complexities of modern life expose him to involuntary risks not of his choice. The State steps into compensate the victim either by its own social welfare activities or by legislation obliging the person or entity undertaking the activity which exposes the victim to such threat or risk to compensate the victim.
12. Adjudication in cases like this is not an cannot be a mere resolution of lis between parties. It is not adversarial litigation in which contestants cross swords. The attempt is to translate the compassion of the Legislature to tangible relief in the hands of the victim. The
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adjudicator must have the mindset. He must realise and accept that it is as much his responsibility to translate the legislative compassion to tangible benefits for the victim and at the same time show the door to an unworthy-not bonafide, claimant. the State/Railway functionary which defends the claim must also imbibe the mindset that is expected to him. We feel that both the officials as also the Tribunal woefully lacked this vital perception. It is not disputed before us that a report was submitted and the Divisional Railway Manager has accepted the report under R.11(2)."
9. In a decision reported in AIR 2009 Orissa 68 (in the case of Union of India Vs. Ahalyua Prusti), the High Court of Orissa has held in paragraphs 4 to 14 as hereunder:
"4. Prior to the amendment the extent of the liability of the Railway was provided in Section 124 in the following words:--
"When in the course of working a railway, an accident occurs, being either a collission between trains of which one is a
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train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident."
5. Similarly, prior to the amendment Section 123(a) defined accident as one of the nature described in Section 124; thus, prior to amendment Section 124 continued the description of the term accident as well as the extent of consequential liability of the Railway. In fact, as per the said provision that was
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restricted to accident as a result of collision between trains or the derailment of or other accidents to a train or any part of a train carrying passengers.
6. In fact, a fall from the train could not be held as due to any accident to a train as envisaged in Section 124 of the Act. The only level that was given under Section 124 of the Act for accident without derailment or collision was the word "all other accident to a train". In fact, it was held by interpreting under Section 124 in the judgment of a case law in Union of India v. Sunil Kumar, reported in AIR 1984 SC 1737, that if a passenger tumble inside the compartment or stepping out of the compartment, it cannot be said that an accident has occurred to the train or a part of the train. It may be doubtless an accident to the passenger but not to the train; what was contemplated u/S.124 was only "all other accident to a train" and not accident to the passenger.
7. The Hon'ble Supreme Court in that case considered the identical expression accident to a train in Section 82-A of the Railways Act, 1890 which corresponds to the pre-amended Section 124 of the Railways
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Act. Thus, as per the above legal provision as set by the Supreme Court while dealing with pre-amended Section 124 leaves no room for doubt that any accident attributable to the fault on the part of the passenger may not be an accident to the Train. Therefore, compensation could not be granted.
8. It is to alleviate the difficulty which the passengers felt in such circumstance there was insertion of a new Section 124-A which provided as follows:--
"124-A. Compensation on account of untoward incident - When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the Railway Administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the Railway Administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death
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of, or injury to, a passenger as result of such untoward incident:
Provided that no compensation shall be payable under this section by the Railway Administration if the passenger dies or suffers injury due to -
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state or
intoxication or insanity;
(e) any natural cause or disease or medical
or surgical treatment unless such
treatment becomes necessary due to injury caused by the said untoward incident.
9. There is also corresponding definition inserted in Section 123.
The amended Section 123(c) reads as follows:-
"(c) "Untoward incident" means --- (1) (i) to (iii) .xxxxx xxx xxx xxx (2) the accidental falling of any passenger from a train carrying passengers."
10. Coming to the present facts of the case it is undisputed fact that the
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investigating authority had seized the body of the deceased from/nearby railway tract. It was also found in the evidence on record that he was dashed by the portion of the train. It was urged from the side of the Railways that he was actually crossing the track from one platform to the other in a hasty manner wrongly thinking that the that arrived in the platform is the one that he is to board; it is thus while crossing the tract the accident took place. Thus, total negligence on the deceased for the said accident it was attributed.
11. What was excluded in Section124- A from getting compensation was (a) suicide or attempted suicide by the deceased: (b) self- inflicted injury; (c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity; (e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.
12. It was argued on the side of the claimants that there was factually no negligence on the part of the deceased and legally the excluded act on the part of the deceased debarring him from getting
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compensation is only other such acts enumerated above in the provision of Section 124-A and not any other act as alleged by the Railways.
13. It is to be noted that the Court below found that there was no negligence on the part of the deceased. In fact, negligence is an element to be pleaded and proved by the Railways who actually wants to exclude the claimants from getting the compensation which is otherwise available on the face of the remaining portion of the evidence on record.
14. Thus, it is by virtue of amendment of Section 123(c) and insertion of Section 124-A, it is not only accident to the train but also an untoward incident in which somebody got affected, the latter would be entitled to compensation. In this view of the matter, the misfortune of the injured seems to have been abated rightly when Parliament enacted Railways Administration Act 28 of 1994."
10. The learned Counsel appearing for appellant has relied on the judgment of the Supreme Court reported in AIR 1984 SC 1737 (in the case of Union of
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India vs. Sunil Kumar Ghosh) to contend that the word 'accident' under Section 82-A which correspondence to Section 124 of the Act should be understood as defined therein. The learned Counsel has relied on para 13 of the judgment, which reads thus:
"In the case of a mishap to the passenger in such circumstances it cannot be said that there has been an accident to the train and the mishap has nexus with it. The liability under Section 82A will not therefore be attracted in such cases. Or in the case of a mishap to a passenger in similar circumstances, such as an injury sustained on account of falling down whilst getting on or off a running or stationary train or sustained when he slips in a compartment or when he slips in a compartment or when something falls on him whilst travelling. All such mishaps, when not connected with the accident to the train, or a part of it, would be accidents to the passenger only. And until both the mishaps take place, one to the train, and another, a sympathetic one, to the passenger, the liability under Section 82A of the Act will not be attracted. So also, unless the loss or damage to the property of a
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passenger is attributable to the accident to the train, liability under Section 82A will not be attracted."
11. In para 8 of the aforestated judgment, the Supreme Court dealing with definition of 'accident' has held:
"A 'body-scan' of the aforesaid provision (section 82A) reveals that:-
(1) The machinery of the Section is set in motion only provided there is an 'accident'. (2) The accident must be 'to' the 'train' or 'part of the train' carrying passengers. (3) The accident to the train carrying passengers may be due to:
(a) Collusion of two trains one of which is the train carrying passengers; or
(b) derailment of such train; or
(c) other accident 'to' such a train. (4) In case any passenger travelling by such train dies, or sustains any injury to his person or property, as a result of or on account of such accident to the train or a part of the train carrying passengers, compensation to the extent provided in the Section will become payable.
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Such compensation will be payable regardless of whether or not the accident to the train carrying passengers is due to negligence or fault on the part of the railway administration."
12. In the case on hand, we are dealing with definition of accident under section 124 of Act with the aid of section 124-A of the act.
13. The learned Counsel for appellant has also relied on the judgments of this Court in M.F.A.No.8044/2009 and M.F.A.No.5263/2009. In M.F.A.No.5263/2009, compensation has been rejected on the ground that accident occurred when deceased hurriedly to get into the train along with his luggage came to platform No.1 and was standing on the edge of platform.
In M.F.A.No.8044/2009, there is no reference to definition of 'accident' under Section 124. The Court has held that deceased therein had not availed sufficient facilities provided by the railways.
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14. In the case on hand, deceased was aged about 78 years and she could not have used foot over bridge to reach the other platform more particularly when there was abrupt announcement regarding change of platform. Therefore, I do not find any grounds to interfere with the impugned order:
Point No.2: Regarding interest:
15. The law is fairly well settled that interest shall be payable at the rate of 6% p.a. from the date of application and 9% p.a. from the date of order. The tribunal without assigning any reasons has disallowed interest from the date of application.
16. In the result, I pass the following order:
M.F.A.No.9596/2008 filed by the South Western Railway is dismissed.
M.F.A.No.6303/2009 filed by the claimants is accepted in part.
The impugned award is modified. The claimants are entitled to interest at 6% p.a. on the compensation
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amount from the date of accident till the date of order.
The rest of the impugned award is confirmed.
Sd/-
JUDGE nas.