Gujarat High Court
Union Of India vs Laxmiben Bhavrav Sendhane (W/O. Decd.) on 27 February, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/FA/2740/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 2740 of 2016
With
CIVIL APPLICATION NO. 12226 of 2016
In
FIRST APPEAL NO. 2740 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
UNION OF INDIA....Appellant(s)
Versus
LAXMIBEN BHAVRAV SENDHANE (W/O. DECD.)....Defendant(s)
==========================================================
Appearance:
MS ARCHANA U AMIN, ADVOCATE for the Appellant(s) No. 1
MR KUNAL M SHAH, ADVOCATE for the Defendant(s) No. 1
MR MAHESH B SHAH, ADVOCATE for the Defendant(s) No. 1
MR PJ MEHTA, ADVOCATE for the Defendant(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Page 1 of 8
HC-NIC Page 1 of 8 Created On Sun Aug 13 00:13:55 IST 2017
C/FA/2740/2016 JUDGMENT
Date : 27/02/2017
ORAL JUDGMENT
1. The present First Appeal is filed under Section 23 of the Railway Claims Tribunal Act 1987 challenging the impugned judgment and order passed by the Railway Claims Tribunal, Ahmedabad in Claim Case No. OA IIU/ADI/2015/0018 dated 3.6.2016 regarding claim for compensation for the death of deceased Bhavrav Tukaram Sedhane on the grounds stated in the memo of Appeal inter alia that the deceased was not a bona fide passenger having the valid ticket, which is a precondition for attracting Section 123(c)(2) of the Railways Act, 1989. It is also contended that the Tribunal has failed to appreciate that the deceased was not having a valid ticket for Train No. 59076 - Bhusavai - Surat Passenger and that the deceased was trying to catch the moving train and fell down resulting in the accident. It is therefore contended that it would not be said to be an 'untoward incident' as defined under Section 123(c)(2) of the Railway Act, 1989.
2. Heard learned Advocate Ms. Archana U. Amin for the Appellant - Railway Administration and learned Advocate Shri P.J.Mehta for the Respondent.
3. Learned Advocate Ms. Amin has referred to the papers and the Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Aug 13 00:13:55 IST 2017 C/FA/2740/2016 JUDGMENT 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 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 has been clearly observed and found on appreciation of the Page 3 of 8 HC-NIC Page 3 of 8 Created On Sun Aug 13 00:13:55 IST 2017 C/FA/2740/2016 JUDGMENT 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 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."Page 4 of 8
HC-NIC Page 4 of 8 Created On Sun Aug 13 00:13:55 IST 2017 C/FA/2740/2016 JUDGMENT
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 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 Page 5 of 8 HC-NIC Page 5 of 8 Created On Sun Aug 13 00:13:55 IST 2017 C/FA/2740/2016 JUDGMENT 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 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 Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Aug 13 00:13:55 IST 2017 C/FA/2740/2016 JUDGMENT 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.
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 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 Page 7 of 8 HC-NIC Page 7 of 8 Created On Sun Aug 13 00:13:55 IST 2017 C/FA/2740/2016 JUDGMENT accordingly.
R&P is ordered to be sent back forthwith.
(RAJESH H.SHUKLA, J.) JNW Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Aug 13 00:13:55 IST 2017