Gujarat High Court
Union Of India vs Rumiben Wd/O P K Shah & 1. & on 7 March, 2014
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/FA/1398/1995 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO.1398 of 1995
For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA Sd/
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Whether Reporters of Local Papers may be
1 NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
Whether their Lordships wish to see the
3 NO
fair copy of the judgment ?
Whether this case involves a substantial
question of law as to the interpretation
4 NO
of the constitution of India, 1950 or any
order made thereunder ?
Whether it is to be circulated to the
5 NO
civil judge ?
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UNION OF INDIA....Appellant(s)
Versus
RUMIBEN WD/O P K SHAH & 1. & 1....Defendant(s)
===================================================A
ppearance:
MR ANAL S SHAH, ADVOCATE for the Appellant(s) No. 1
MR AJ PATEL with MR JAYESH PATEL, ADVOCATE for the
Defendant(s) No.12
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 07/03/2014
ORAL JUDGMENT
(1) This appeal filed under Section 96 of the Code of Civil Procedure, 1908 (the CPC) is directed against the judgment, order and decree dated 31.08.1994 passed by 3rd Joint Civil Judge (S.D.), Vadodara in Special Civil Suit No.655 of 1987 whereby the suit came to be partly allowed with a direction to the appellant herein, original defendant, to pay a sum of Rs.6,20,000/ Page 1 of 26 C/FA/1398/1995 JUDGMENT to the respondents herein, original plaintiffs, along with 6% interest from the date of the suit till realization of the decreetal amount. For convenience, the parties shall be referred to hereinafter as per their original status.
(2) The facts of the case are that the suit came to be instituted by widow of deceased Dr.Prakashkumar Kanubhai Shah and his minor son Neel i.e. original plaintiff Nos.1 and 2 respectively. That the deceased was about 26 years on the date of incident i.e. 07.12.1986. That after completion of post graduation in medicine and after obtaining master degree i.e. M.D. (Medicine) at Jamnagar Medical College, Gujarat State, the deceased got appointment in G.D. Somani Memorial School, Colaba, Mumbai, as Medical Officer in the clinic of the said school. That on 07.12.1986 the deceased was to travel by "Baroda Express" train from Vadodara railway station to join his duty at Mumbai by II Class coach. That the deceased met with an accident at Vadodara Railway Station because of negligence of the driver of the said train as well as the other employees of the original defendant and succumbed to death on the spot. That such accident would have been avoided and life of the deceased would have been saved. That because of gross negligence and default on the part of the railway administration the said accident occurred and the Page 2 of 26 C/FA/1398/1995 JUDGMENT deceased lost his life and the plaintiffs have lost their bread earner and head of the family, who looked after their necessities, the plaintiffs were completely dependent upon the deceased. That on the date of incident the deceased was about 26 years. That the original plaintiffs have contended that considering the age of the deceased, he would have survived at least 35 years more. That after obtaining degree of M.B.B.S. from Jamanager Medical College, Gujarat State, the deceased obtained degree of M.D. (Medicine) from the same college and was very healthy and energetic young man on the date of accident. That even during his study the deceased was paid stipend of Rs.1,200/p.m. That the deceased had a very bright career and considering the qualification and career, the deceased was immediately employed as a physician in the medical clinic run by G.D. Somani Memorial School, Colaba, Mumbai, on a monthly remuneration of Rs.2,000/ and Rs.500/p.m. as house allowance. That as per the terms of the contract with the said school the deceased was also made available other benefits such as leave, provident fund and bonus also. Over and above the aforesaid, the deceased was also permitted to have private practice after school hrs. and therefore it is contended that the deceased would have earned Rs.4,000/p.m. (3) That the contention taken in the plaint further reveals that the original plaintiff No.1 Page 3 of 26 C/FA/1398/1995 JUDGMENT married with the deceased on 23.04.1982 and she had a minor son viz. Neel i.e. original plaintiff No.2 on the date of the accident. That the original plaintiff No.1 has lost her marital life at such young age, which cannot be compensated in terms of money and it is very young age and therefore amount as assessed is required to be granted for loss of marital life of original plaintiff No.1. That the original plaintiff No.2, minor son of the deceased, will be required to be brought up and maintained by the original plaintiff No.1, her mother, and that factor also should be required to be considered while assessing the amount of compensation.
(4) That statutory notice as provided under Section 80 of the CPC came to be issued on 19.06.1987, which is also received by the defendant on 24.06.1987, however, no reply was given. In light of these facts the original plaintiffs claimed compensation of Rs.7,00,000/.
(5) It further appears that the original plaintiffs have brought on record the communication received from the defendant dated 03.07.1987, which indicates that statutory notice has been received by the appellantdefendant and the matter was under inquiry. The original plaintiffs have also relied upon copy of the Page 4 of 26 C/FA/1398/1995 JUDGMENT appointment letter issued by G.D. Somani Memorial School, Colaba, Mumbai, dated 02.01.1987.
(6) It may be further be noted that initially when the suit came to be instituted the plaintiffs had claimed Rs.2,00,000/, as amount of compensation because of accidental death of the deceased. However, in statutory notice dated 19.06.1987 the plaintiffs claimed Rs.7,00,000/ and therefore by amendment application Exh.11, prayers for amendment of the plaint were sought for and the compensation of Rs.7,00,000/ came to be claimed by the said application dated 24.02.1988, which came to be allowed by the trial Court vide order dated 14.03.1988. It may further be noted that the trial Court has noted in the order that amendment is formal one and the issues are not yet framed. It is also recorded that the defendants have no objection for the same.
(7) That the defendant filed their written statement Exh.12 and contended that the plaintiffs have no right to file the present suit. It is also contended that no cause of action has arisen and the suit in the present form and the present nature is not maintainable in law. It is also contended that legal notice as provided under Section 78(b) read with Section 80 of the Railways Act is not given in accordance Page 5 of 26 C/FA/1398/1995 JUDGMENT with law. It is further contended that the Court had no jurisdiction to hear the present suit, apart from denying the fact of the incident that occurred on Vadodara Railway Station on 07.10.1986. In addition to the formal denial of factual aspects is made by defendant. It is also noticed in the written statement that even the defendant has challenged the place of Junagadh College of Gujarat State, which is erroneous as there is no medical college at Junagadh but it is only at Jamnagar.
(8) That the trial Court has framed issues at Exh.14 as under:
"1) Whether the suit brought it maintainable?
2) Whether the plaintiff proves that the said accident has been occurred due to negligence on the part of the driver and other servants of the defendants and due to said accident Shree Prakash kumar died?
3) Whether the defendant proves that the court has no jurisdiction to hear the suit?
4) Whether the defendant proves that the plaintiff has not served the notice u/s 78(B) of Railways Act and also u/s 80 of the Civil Procedure Code to the defendants and therefore, the suit is not competent?
5) Whether the defts prove that the suit is barred by the nonjoinder of necessary parties to the suit?
6) What is due to the plaintiff from the defendant?Page 6 of 26
C/FA/1398/1995 JUDGMENT
7) Whether the plaintiff is entitled to get all or any of the claim as prayed?
8) What order and decree?"
(9) It appears that original plaintiff No.1 is examined (at Exh.18) and she has averred that according to the contention taken in the plaint she has also produced on record the appointment letter issued by G.D. Somani Memorial School, Colaba, Mumbai, to the deceased (Exh.19), statutory notice dated 18.06.1987 under Section 80 of the CPC (Exh.20) as well as postal receipt of the same (Exh.21). It is evident that panchnama of the place of accident is at Exh.22, the inquest panchnama of the dead body of the deceased is at Exh.23. It is further appears that the original plaintiffs have examined one Shri Vishvesh Hasmukhbhai (Exh.26), who was traveling alongwith the deceased. It appears that the appellant has not adduced any oral or documentary evidence.
(10) Heard Mr.Anal S. Shah, learned advocate for the appellantoriginal defendant, and Mr.Patel, learned advocate for the respondentsoriginal plaintiffs, and have also perused the record and proceedings of the trial Court.
(11) Learned advocate for the appellantoriginal defendant has taken this court through the Page 7 of 26 C/FA/1398/1995 JUDGMENT impugned judgment, order and decree and has taken the following contentions:
(i) That the accident occurred on 07.12.1986 and therefore as per Section 82A of the Railways Act, 1890 (the old Act), the civil court had no jurisdiction but the Railway Claims Tribunal has jurisdiction.
(ii) That as provided under Section 82A of the Railways Act, 1890 (the old Act) and Section 13 of the Railway Claims Tribunal Act, 1987 the Rules are framed by the Central Government and as per the said rules only the Railway Claims Tribunal had jurisdiction;
(iii) That the incident did not occur because of negligence on part of the defendant and in view of Section 124A of the Railways Act, 1989 (the new Act) the plaintiffs are not entitled to any compensation;
(iv) that the trial Court has wrongly relied upon the evidence on record and has awarded Rs.6,20,000/ along with interest to the original plaintiffs;
(v) That there was no negligence on the part of any of the employee of the original defendant;Page 8 of 26
C/FA/1398/1995 JUDGMENT
(vi) That the trial Court has wrongly come to the conclusion that the driver and other employees of the defendant were neglect;
(vii) That the deceased was not a bona fide passenger on "Baroda Express" Train on the date when the accident occurred;
In view of the aforesaid facts, it was contended that the appeal deserves consideration and be allowed.
(12) Mr.Patel, learned advocate for the respondentsoriginal plaintiffs, has supported the impugned judgment, order and decree. It was submitted that the plaintiffs have proved that the deceased was the bona fide passenger and was traveling by "Baroda Express" train on the date of incident. It was further submitted that at the time of accident the deceased was aged only about 26 years and was a qualified physician and was appointed as a medical officer in G.D. Somani Memorial School, Colaba, Mumbai. It was contended that the trial Court has correctly determined the compensation and the same does not require to be interfered with by this Court in its appellate jurisdiction. It was also contended that original Page 9 of 26 C/FA/1398/1995 JUDGMENT plaintiff No.1 was only 23 years old and the original plaintiff No.2 was only three years old on the date of incident and both the plaintiffs were completely dependent on the deceased. It was also contended that the original plaintiff No.1 lost her husband at a very young age of 23 years and lost her marital life and similarly, the original plaintiff No.2 lost his love and affection of a father at a tender age of three years and therefore the trial Court has rightly awarded compensation as per the impugned judgment and decree.
(13) It was also contended that though the original plaintiffs have not preferred any appeal for enhancement of the amount awarded, considering the age, qualification and the state of health of the deceased, the original plaintiffs are really entitled to get more compensation than what has been awarded by the trial Court considering the prospective income, consortium, etc., which are always awarded in such cases.
(14) Mr.Patel, learned advocate for the respondentsoriginal plaintiffs, submitted that it is proved beyond doubt that the deceased was a bona fide passenger of the Baroda Express train. It is also proved and rightly believed by the Page 10 of 26 C/FA/1398/1995 JUDGMENT trial Court that the accident occurred because of the negligence of the driver of the train and other employees of the defendant. It was further contended that because of negligence the deceased died on the spot, which is proved by the plaintiffs. Mr.Patel, learned advocate for the respondentsoriginal plaintiffs, therefore contended that no interference is called for by this Court in its appellate jurisdiction and the appeal being meritless and deserves to be dismissed.
(15) Considering the submissions made by the learned Counsel for the parties and on perusal of the impugned judgment and decree as well as record and proceedings, it appears that the accident occurred at Vadodara Railway Station on 07.12.1986. Record further indicates that there is no dispute regarding the age of the deceased as well as both the plaintiffs.
(16) The contentions raised by the defendants that the deceased was not a bona fide passenger deserves to be outright negatived. The plaintiffs had examined Shri Vishvesh Hasmukhbhai (Exh.26) and upon his deposition it is evident that the deceased reached at Vadodara Railway Station at about 10 pm. That as they did not have any reservation the collie instructed them to sit in Page 11 of 26 C/FA/1398/1995 JUDGMENT the last bogie. It is also deposed that he and the deceased boarded the train together and other relatives were standing on the platform. The said witness has clearly stated that while the train started moving the deceased and the witness were standing near the door and because of a jolt the deceased lost his balance and fell down between the platform and the bogie. It is further stated that as the train had started moving the right leg of the deceased was cut and the deceased also received other injuries because of which blood started oozing and as the deceased came beneath the train he died. The said witness also deposed that the deceased was well built and had no habit and if he would not have died because of sudden death, he would have lived further 3040 years. In his crossexamination he has clearly denied that the deceased tried to board the running train and lost his balance. The said witness also denied in his crossexamination that no jolt was experienced. It is also denied that there was great rush in the bogie. Also considering the panchnama of the scene of occurrence (Exh.22) it appears that the incident took place as deposed by the said witness. Except bare contention in the written statement that the deceased was not a bona fide passenger no evidence is brought on record by the defendant. In light of such evidence on record therefore the trial Court has Page 12 of 26 C/FA/1398/1995 JUDGMENT rightly held that the deceased was a bona fide passenger on Baroda Express train on 07.12.1986.
(17) The contention raised by the defendant to the effect that under the provisions of Section 82A of the Railways Act, 1890 (the old Act), which is pari materia to Section 124(2) of the Railways Act, 1989 (the new Act), the civil court had no jurisdiction but the Railway Claims Tribunal has jurisdiction is clearly covered by the decision of the Apex Court in the case of Union of India & Ors. Vs. Sunil Kumar Ghosh, AIR 1984 SC 1737 as well as judgment of Division Bench of Bombay High Court in the case of Ratnakar Tanbaji Itankar Vs. Union of India, AIR 1994 Bombay 132.
(18) The Apex Court in the case of Union of India & Ors. Vs. Sunil Kumar Ghosh (supra) has observed thus: (at Paragraph Nos.813) "8. A 'bodyscan' 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 Page 13 of 26 C/FA/1398/1995 JUDGMENT
(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.
(5) 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.
9. That the 'accident' envisioned by the first part of Section 82A (1) is an accident 'to' the 'train' or 'a part of the train' is selfevident. The Section speaks of an accident by reason of either (1) collision or (2) derailment or (3) other accident to a train. There is therefore room for any ambiguity on that score.
10. So also it cannot be gainsaid that the 'accident' adverted to therein cannot refer to an accident to a passenger 'whilst' on a passenger train even if the said train is not at all involved in any accident. Common sense and reason buttress this proposition, for, the philosophy of Section 82A appears to be to turn an existing 'fault' liability into a 'fault' or 'no fault' liability. Why? Because a carrier who transports passengers as a part of his business, when he charges fare, impliedly guarantees to carry him with safety in so far as such safety is within his power. It is within his power to transport the passenger without an accident to the train, for such an accident is not something which is ordinarily or in the normal course of events inherent in the running of a train. And presumably in order to be 'fair' to the passengers who pay the 'fare' for a safe (safe from accident to the train) journey, the legislature, with an eye on social welfare, has provided for compensation by a summary proceeding and has made the liability faultfree.
11. But to ensure safe travel is not to "insure" the passenger against accident to himself 'whilst' travelling. The distinction deserves to be spot lighted. What 'is' provided is compensation for death or injury caused or loss sustained on account of accident 'to' the train. What is 'not' provided is compensation for death of the passenger 'whilst' travelling or injury sustained by a passenger 'whilst' travelling on the train, say, by reason of Page 14 of 26 C/FA/1398/1995 JUDGMENT his own act, default, or misfortune, which has no nexus with the 'accident to the train'. In other words, what the Section does is to turn a liability which was 'contingent on fault' into an 'absolute' liability. What, however, it does not do, is to provide a free 'insurance cover' to the person and property of a passenger so that compensation can be claimed for the accidental death of or injury to the passenger and/or loss or damage to his property even when there has been no 'accident' to the train carrying such a passenger.
12. What is the position when a passenger falls down from the train while the bogie, in which he is travelling, is being shunted'? Say, when he is standing in the door frame or is trying to get in or get out of the train, on account of the jolt to the bogie at the time of impact with the rest of the train? Is it an accident 'to the train' so as to attract the liability under section 82A? The answer substantially depends on the answer to the question : what is an 'accident'? An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words an event or occurrence the happening of which is ordinarily expected in the normal course by almost every one undertaking a rail journey cannot be called an 'accident'. But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident. Now a collision of two trains or derailment of a train or blowing up of a train is something which no one ordinarily expects in the course of a journey. That is why it falls within the parameters of the definition of accident. But a jolt to the bogie which is detached from one train and attached to another cannot be termed as an accident. No shunting can take place without such a jerk or an impact at least when it is attached or annexed to a train by a shunting engine. If a passenger tumbles inside the compartment or tumbles out of the compartment when he is getting 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 is doubtless an accident the the passenger'. But not to the train. Otherwise it will have to be held that every time a bogie is detached in the course of shunting operation and attached or annexed to a train in the course of the said operation the train meets with an accident. And if Page 15 of 26 C/FA/1398/1995 JUDGMENT such an event or occurrence is to be ordinarily expected as a part of every day life, it cannot be termed as an accident - accident to the train(or a part of it).
13.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 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 passenger is attributable to the accident to the train, liability under Section 82A will not be attracted."
Considering the factual matrix in the instant case, the provisions of Section 82A of the Railways Act, 1890 (the old Act) would not be attracted at all.
(19) Division Bench of Bombay High Court in the case of Ratnakar Tanbaji Itankar (supra), considering the provisions of Section 13(a) of the Railway Claims Tribunal Act, 1987, has observed thus: (at Paragraph Nos.2226):
"22. Since the language of Section 13(1) of the Claims Tribunal Act dealing with the jurisdiction, power and authority of the Claims Tribunal is plain and unambiguous and does not admit of reading Section 33 thereof in the same, it is not open to us to enlarge the scope and jurisdiction of the claims Tribunal by doing, so apart from the fact that even Page 16 of 26 C/FA/1398/1995 JUDGMENT otherwise it cannot be done because the scope and object of the said Section 33 is different. It is well settled that a Court has no power to reframe legislation (See State of Kerala v. Mathai Verhese, AIR 1987 SC 33) or to read words in an Act unless it is absolutely necessary to do so. See Grunwick Processing Laboratories Ltd. v. Advisory Conciliation and Arbitration Service, (1978) 1 All ER 338 (HL) p. 368 and Director General, telecommunication v. T. N. Peethambaram, AIR 1987 SC 162.We cannot therefore, accept the submission made on behalf of the appellant that we should. read Section 13(1) of the Claims Tribunal Act in the light of its Section 33. We have no manner of doubt that under Section 13(1) the Claim of the type made by the appellant in the instant case cannot fall. It is, thus clear that the claim arising out of the alleged accident in the instant case has to be made by the appellant before the Civil Court by filing a proper Civil Suit in that regard.
23. It is, however urged on behalf of the appellant that a Civil Court cannot entertain such a claim because a Special Tribunal i.e. the Claims Tribunal which is constituted for deciding the claims for compensation against the railways has exclusive jurisdiction in regard to the same. In support of this submission, the learned Counsel for the appellant has relied upon the propositions enunciated by the Supreme Court in the well known case of N. P. Ponnuswami v. Returning Officer, Namakkal Constituency, Namakkal, Salem Dist. reported in AIR 1952 SC 64. The said propositions are also well set out by Willes J. in the following terms in Wolverhampton New Water Works Co. v. Hawkesford, (1859) 6 CB (NS) 336 at page 356 of the report :
"There are three classes of cases in which a liability may be established founded upon statute. One is, where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely, but provides no particular form of remedy : there, the party can only proceed by action at common law. But there is a third class, viz., where as liability not existing at common law is created by a statute which at the same time gives a Page 17 of 26 C/FA/1398/1995 JUDGMENT special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable in cases of the second class."
It is clear that in the third class of cases the statute is a selfcontained Code and the jurisdiction of the civil Court or the remedy at common law is barred.
24. In appreciating the submission made on behalf of the appellant regarding the question of exclusive jurisdiction of the Claims Tribunal to entertain the claims for compensation against the railways, it is necessary to see that the fallacy in the above submission ties in the fact that it is assumed that the remedy provided before the Claims Tribunal is a general remedy. In fact, it is just otherwise. The Claims Tribunal under the Claims Tribunals Act is a Tribunal of limited and specified jurisdiction. It can exercise jurisdiction and power as conferred upon it under the said Act only. It is well settled that the Civil Courts are the Courts of general jurisdiction and unless therefore, the remedy in regard to the enforcement of a particular right is expressly or by necessary implication barred, the people have a right to insist upon free access to the Courts of general jurisdiction of the State to enforce their rights: See the observations of Romer L.J. in Lee v. Showmen's Guild of Great Britain, (1952) 1 All ER 1175 (CA) at p. 1188. See also the Judgment of the Supreme Court in Madhavrao Seindia v. Union of India, AIR 1971 SC 530 at p. 576 and Ram Prasad v. State of Bihar, AIR 1953 SC 215 at P. 220.
25. Since the Civil Courts are courts of general jurisdiction, it is a fundamental rule that the exclusion of jurisdiction of the Civil Courts should not be readily inferred and such exclusion must either be explicitly expressed or clearly implied. See the followings cases. MagitiSasamal v. Pandab Bissoi, AIR 1962 SC 547 at p. 549; Laxman Purshottam Pimputkar v. State of Bombay, AIR 1964 SC 436 at p.443, Ramswarup v. Shikharchand, AIR 1966 SC 893 p. 896; Pabbojan Tea Company v. Dy. Commr. Lakhimpur, AIR 1968 SC 271 p. 275; Dhulabhai v. State of M.P., AIR 1969 SC 78, Pp. 81, 82 and 84. As the ouster of the jurisdiction of the Civil Court cannot be readily inferred, the provisions relating to its ouster need to be strictly construed. See Bhagwatsingh v. State of Rajasthan, AIR 1964 SC 444 at p. 446; Raichand v. Union of India, AIR 1964 SC 1268 p. 1270 and Abdul v.
Page 18 of 26C/FA/1398/1995 JUDGMENT Bhawani, AIR 1966 SC 1718 para 9. The existence of the jurisdiction in the Civil Court to decide disputes of Civil nature being thus a general rule and its exclusion an exception the burden of proof to show that its jurisdiction is ousted is upon the person who claims its ouster. See Sri Vedagiri Lakshmi Narasimha Swami Temple v. I. Pattabhairami, AIR 1967 SC 781 at p. 785.
26.In view of the above principles relating to the ouster of the jurisdiction of the Civil Courts, what has to be seen in the instant case is not whether the claim lies before the Civil Court or not, but whether the claim can lie before the Claims Tribunal or not. As hereinbefore pointed out, Section 13(1) of the Claims Tribunal Act provides for jurisdiction, power and authority of the Claims tribunal and by virtue of the express provisions contained in Section 15 thereof the jurisdiction of the Civil Court or any other authority is barred in regard to the matters specified in the said Section 13(1) of the said Act thus making the jurisdiction of the Claims Tribunal exclusive upon the said matters under Section 13(1) of the said Act. Therefore, in regard to the matters other than matters covered by Section 13(1) of the said Act, the Civil Court will have jurisdiction to entertain a Civil Suit. It cannot, therefore be said that a Civil Suit cannot lie for a claim for compensation which is made in the instant case. It cannot thus be held that the Civil Court will not have any jurisdiction in the matter covered by the instant case, because a Claims Tribunal is constituted under the Claims Tribunal Act. The above submission made on behalf of the appellant therefore, deserves to be rejected."
(20) In view of the aforesaid legal position, the contention raised by the defendant that the civil court had no jurisdiction in view of provisions of Section 82A of the Railways Act, 1890 (the old Act) as well as Section 13(a) of the Railway Claims Tribunal Act, 1987 also deserves to be negatived.
(21) Another contention raised by the defendant to the effect that the deceased was negligent and Page 19 of 26 C/FA/1398/1995 JUDGMENT was standing near the open door of the compartment of the running train and therefore the plaintiffs are not entitled to any compensation under Section 124A of the Railways Act, 1989 (the new Act), is also squarely covered by the decision of the Apex Court in the case of Jameela & Ors. Vs. Union of India, AIR 2010 SC 3705 wherein the Apex Court has observed thus (at Paragraph Nos.6, 7 & 9) :
"6. Chapter XIII of the Railways Act, 1989 deals with the Liability of Railway Administration for Death and Injury to Passengers due to Accidents. Section 123, the first section of the Chapter, has the definition clauses. Clause (c) defines "untoward incident" which insofar as relevant for the present is as under :
"123 (c) untoward incident means (1) (i) xxxxxxxx
(ii) xxxxxxxx
(iii) xxxxxxxx (2) the accidental falling of any passenger from a train carrying passengers."
Section 124A of the Act provides as follows :
"124A. 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 of, or injury to, a passenger as a 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;Page 20 of 26
C/FA/1398/1995 JUDGMENT
(b) selfinflicted 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.
Explanation For the purposes of this section, "passenger" includes
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident." (Emphasis added)
7. It is not denied by the Railway that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a "passenger" for the purpose of section 124A as clarified by the Explanation. It is now to be seen, that under section 124A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. But the proviso to the section says that the railway administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in clauses (a) to (e).
8. xxx xxx xxx
9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause
(c) to the proviso to section 124A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour."
Page 21 of 26C/FA/1398/1995 JUDGMENT (22) In the instant case also the deceased was bona fide passenger with ticket and no evidence is led contrary to the same. It is not the case of the defendant that untoward incident occurred because of any reason which is enumerated in Proviso of Section 124A of the Railways Act, 1989 (the new Act) and the evidence on record clearly shows that the untoward incident took place at the platform of Vadodara Railway Station where because of jolt the deceased lost his balance and fell down. In light of this therefore it cannot be said that the defendant is not liable to pay compensation as envisaged under Section 124A of the Railways Act, 1989 (the new Act) and therefore this contention raised by the defendant also deserves to be negatived.
(23) Having come to the aforesaid conclusion on examining the quantum of compensation as awarded by the trial Court, it appears that the trial Court has considered the appointment letter of the deceased (Exh.19), which clearly shows that the deceased was appointed as physician in the medical clinic run by G.D. Somani Memorial School, Colaba, Mumbai at monthly remuneration of Rs.2,000/. The said letter also indicates that the deceased was to be paid house allowance of Rs.500/ with liberty to have private practice after school hours. The appointment letter also Page 22 of 26 C/FA/1398/1995 JUDGMENT further provided that the deceased was also made available other benefits such as leave, provident fund and bonus also. The trial Court has therefore rightly taken the appointment letter (Exh.19) as the base for calculating the quantum of compensation. Even if in 1987 in a city like Mumbai an M.D. (Physician), who is a well qualified, naturally would have monthly private practice of Rs.1,000/, as calculated by the trial Court. So, yearly income, as assessed by the trial Court at Rs.30,000/ of the deceased, after deducting the other expenses and liabilities, is legal and proper. Though the trial Court has considered multiplier of 20 which is on a higher side at the same time the trial Court has not awarded anything as perspective income and consortium. Plaintiff No.1 lost her husband at the tender age of 23 years. At this juncture it would be appropriate to refer to the judgment of the Apex Court in the case of Rajesh and others Vs. Rajbir Singh & Ors., 2013 ACJ 1403, wherein in Paragraph Nos.20 & 21 it has been observed thus:
"20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads:Page 23 of 26
C/FA/1398/1995 JUDGMENT
(i) loss of consortium to the spouse;
(ii) loss of love, care and guidance to children;
and
(iii) funeral expenses.
It may be noted that the sum of Rs.2,500/ to Rs.10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs.5,000/ to Rs.10,000/. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite Page 24 of 26 C/FA/1398/1995 JUDGMENT expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/."
(24) Even if it is considered that the multiplier of 20 is on a higher side the plaintiffs would be entitled to at least 17 multiplier relying upon the decision of the Apex Court in the case of New India Assurance Company Ltd. Vs. Gopali & Ors., AIR 2012 SC 3381 as well as Sarla Varma (SMT) & Ors., Vs. Delhi Transport Corporation & Anr., (2009) 6 S.C.C. 121.
(25) On reappreciation of evidence, monthly estimated income of the deceased requires to be calculated as salary of Rs.2,000/ + Rs.500/ for HRA, + Rs.1,000/ for private practice, + 700/ towards perspective income = Rs.4,200/ less () Rs.1,400/ towards personal expenditure and therefore net income of the deceased would come to Rs.2,800/ multiply by 12 = Rs.33,600/ and applying 17 multipliers, the loss of income would come to Rs.5,71,200/ and the plaintiffs would be entitled to Rs.50,000/ towards consortium, which would mean that the plaintiffs would be entitled to total compensation of Rs.6,21,200/.
(26) In light of the aforesaid, this Court is of the opinion that the conclusion arrived at by the Page 25 of 26 C/FA/1398/1995 JUDGMENT trial Court are legal and proper and the judgment and decree therefore deserves to be confirmed.
(27) The appeal, being meritless on all counts, deserves to be dismissed. Hence, the appeal is hereby dismissed and the judgment and decree of the trial Court is hereby confirmed.
(28) It may be noted that when the appeal came to be admitted plaintiff No.2 was minor and during pendency of the appeal, as rightly pointed out by the learned Counsel for the parties, plaintiff No.2 has become major. The amount which is to be paid to plaintiff No.2, shall be paid directly in his name. Decree be drawn accordingly. There shall be no order as to costs.
(29) Record and proceedings be sent to the trial Court forthwith.
Sd/ [R.M.CHHAYA, J ] *** Bhavesh [pps] * Page 26 of 26