Rajasthan High Court - Jaipur
Smt Anokhi Devi vs U O I & Ors on 22 September, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Appeal No.4264/2009 Smt. Anokhi Devi and Others Vs. Union of India through General Manager, North Western Railway, Jaipur Date of Order ::: 22.09.2011 Present Hon'ble Mr. Justice Mohammad Rafiq //Reportable// Shri Ajay Shukla, counsel for claimant-appellants Shri Ram Gopal Chaudhary, counsel for respondent #### By the Court:-
This appeal has been filed by five claimant-appellants, namely, Smt. Anokhi Devi, Master Jitendra, Master Sachin, Rampal, Smt. Sukko, being aggrieved by order dated 26.05.2009 of the Railway Claims Tribunal, Jaipur Bench, Jaipur, in OA II/117/2005, whereby learned Tribunal dismissed their claim application under Section 16 of the Railway Claims Tribunal Act, 1987, for award of compensation on account of accidental death of Kanhaiyalal due to fall from the train.
Appellant no.1 Smt. Anokhi Devi is wife of deceased Kanhaiyalal, appellants no.2 and 3 Jitendra and Sachin are minor sons of deceased Kanhaiyalal and appellants no.4 and 5 Rampal and Smt. Sukko are respectively father and mother of deceased Kanhaiyalal. According to claimants, when Kanhaiyalal was travelling on valid 2nd class ticket from Jaipur to Bandikui by train named Delhi-Ahmadabad Mail in its general compartment, he fell down from the train at Dholi Gumti near Bandikui, and died due to accidental fall. The prayer was made for award of compensation to the tune of Rs.4,00,000/- together with interest thereon at the rate of 18% per annum. The respondent Union of India contested the claim petition and maintained that there was no proof of fact that Kanhaiyalal was bona-fide passenger and therefore it was denied that he was travelling by aforesaid train. The dead body of Kanhaiyalal was found two kilometers away from Bandikui Railway Station and he was also not found to have been possessing valid ticket; he cannot therefore be considered as a bona-fide passenger. Even though the police in investigation has stated the cause of death of Kanhaiyalal on account of fall from any unknown train as claimed in the first information report but the said conclusion has been arrived at in connivance by the police. It was therefore prayed that claim petition be dismissed.
Learned Railway Claims Tribunal, Jaipur Bench, Jaipur (for short, 'the Tribunal') upheld the objection of the respondent and rejected the claim petition, hence this appeal under Section 23 of the Railway Claim Tribunal Act, 1987 (for short, 'the Act, 1987').
Shri Ajay Shukla, learned counsel for appellants, has argued that the finding of learned Tribunal that Kanhaiyalal was not a bona-fide passenger, is wholly perverse and erroneous. Learned counsel in this connection referred to definition of 'passenger' given in Section 2(29) of the Railways Act, 1989, which defines 'passenger to mean a person travelling with a valid pass or ticket. It was argued that whether or not deceased was having a valid ticket, the onus to prove it lies on the respondent. When deceased Kanhaiyalal was found dead due to accidental fall from the train and there is evidence that he was travelling from Jaipur to Bandikui that day, it has to be accepted that the case would fall within the meaning of Sections 123 and 124 of the Act of 1989 that Kanhaiyalal died due to an 'untoward incident'. It was argued that the Railways Act, 1989 is a beneficial piece of legislation and payment of compensation on account of death of Kanhaiyalal due to accidental fall from the train, cannot be denied to the dependents, the claimants herein, on mere technicalities of law.
Learned counsel for the appellants further argued that the learned Tribunal has misinterpreted the provisions of Section 123 of the Act of 1989 and thereby committed a gross illegality of law in arriving at the conclusion that death of deceased Kanhaiyalal took place beyond the destination station, hence he cannot be said to be the bona fide passenger. The place where the accident is alleged to have been taken place is nearby Bandikui Railway Station and the possibility is that since the Bandikui Railway Station was left behind, the deceased might have tried to get down from train after it started and in that process he fell down. Learned counsel argued that there was involvement of the train in the death of deceased Kanhaiyalal and the fact is proved by the statements of claimants that deceased was travelling by said train. Merely because body of the deceased was found or that he met with accident by train beyond his destination station, cannot be a basis to deny compensation to the claimants. It was argued that the learned Tribunal has erred in holding that death of deceased occurred due to accident by an unknown train while he was going to his village and not by accidentally falling, hence he was not a bona fide passenger.
Learned counsel for appellants, in support of his arguments, relied on the judgments of Supreme Court in Jamirul Nisha and Another Vs. Union of India II (2008) ACC 631, Union of India Vs. Prabhakaran Vijaya Kumar and Others (2008) 9 SCC 527, Jameela and Others Vs. Union of India (2010) 12 SCC 443.
Per contra, Shri Ram Gopal Chaudhary, learned counsel for respondent, opposed the appeal and argued that the place from where dead body of Kanhaiyalal was recovered is two kilometers away from the destination railway station of Bandikui. The assertion of the claimants was that Kanhaiyalal was travelling on valid 2nd class ticket from Jaipur to Bandikui by train named Delhi-Ahmadabad Mail in its general compartment, therefore it cannot be accepted that the passenger would alight two kilometers away from Bandikui Railway Station. Learned counsel argued that the claimants failed to prove that deceased Kanhaiyalal was a bona fide passenger, and also it could not be proved that he had a valid ticket from Jaipur to Bandikui. If at all it is assumed that he had a valid ticket of Bandikui, why did he not get down from train at Bandikui Railway Station, is not clear. Learned counsel for the respondent, in support of his arguments, relied on the judgment of the Supreme Court in Union of India Vs. Prabhakaran Vijaya Kumar and Others (2008) 9 SCC 527, especially on observation made in Para 14 and 15 of the judgment. He also relied on an unreported judgment of a coordinate Bench of this Court in Rajpal Singh Vs. Union of India through General Manager, Western Railway, Church Gate, Mumbai, S.B. Civil Miscellaneous Appeal No.362/2002, that of Calcutta High Court in Shakuntala Shaw & Others Vs. Union of India IV (2010) ACC 577 (DB), and of Delhi High Court in Rama Shankar Sharma Vs. Union of India IV (2007) ACC 781. It was argued that the fact that ticket was not recovered from dead body of the deceased Kanhaiyalal, clearly goes to show that a case of suicide is being set to be converted into accidental fall from train. Opinion of the medical officer in postmortem report about the death of deceased Kanhaiyalal by train does not conclusively prove that he died by accidentally falling from train and that he was a bona fide passenger. He could have died by suicidal death. Learned counsel argued that nowhere in the claim petition did the claimants give the number of train in which he was travelling and the timings thereof. On such a vague pleading, no relief possibly can be granted. Learned counsel further argued that there is no evidence of fact that deceased was travelling from Jaipur to Bandikui. Neither the proof of train nor its timings was given by the claimants in the affidavits of the claimants. Learned counsel in this respect referred to the affidavits of the claimant no.1. It is therefore prayed that the appeal be dismissed.
I have given my anxious consideration to rival submissions and perused material on record.
Who would be a passenger, has been defined in Section 2(29) of the Railways Act. A 'passenger' means a person travelling with valid pass or ticket. The 'untoward incident' has also been defined in Section 123(c) to include even an accidental falling of any passenger from a train carrying passengers. Section 124-A of the Railways Act provides that when in the course of working of railways 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 act would entitle a passenger who has been injured or 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 of loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident. Explanation to Section 124A has further expanded the scope of a passenger to include a railway servant on duty and 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. There are however exceptions to this Section 124A, which are - 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 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.
The Supreme Court in Para 14 an 19 of the judgment in Jamirul Nisha, supra, made certain observations on this aspect, which read thus,
14. In our opinion, if we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford traveling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger i.e. a passenger traveling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression.
19. With the advance of industrialization the Laissez Faire Theory was gradually replaced by the theory of the Welfare State, and in legal parlance there was a corresponding shift from positivism to sociological jurisprudence. It was realized that there are certain activities in industrial society which though lawful are so fraught with possibility of harm to others that the law has to treat them as allowable only on the term of insuring the public against injury irrespective of who was at fault. The principle of strict liability (also called no fault liability) was thus evolved, which was an exception to the general principle in the law of torts that there is no liability without fault, (vide American Jurisprudence, 2nd Edn Vol 74 p. 632).
In Jameela Vs. Union of India, supra, the case of Railways was that deceased was standing at open door of train compartment in negligent manner from where he fell down. A death claim was resisted by Railways contending that deceased had died by falling down from the train because of his own negligence. In Para 5 of the judgment, their Lordships observed thus,
5. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under section 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railway that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railway that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under section 124 A of the Act.
In Union of India Vs. Hari Narayan Gupta and Another AIR 2007 RAJ. 38, a question was raised as to on whom the burden of proof lies whether the deceased was or was not a bona fide passenger. Relying on a division bench judgment of this Court wherein it was held that burden of proof for establishing that deceased was not a bona-fide passenger lies on the railway administration. This very view was expressed by a coordinate bench of this Court in Rajpal Singh Vs. Union of India through General Manager S.B. Civil Misc. Appeal No.362/2002, decided on 09.08.2011.
The judgment of Delhi High Court, relied on by learned counsel for respondent in Jamirul Nisha and Another Vs. Union of India, supra, is distinguishable on fact because in that case body of deceased was recovered between two platforms. Division Bench judgment of Calcutta High Court in Shakuntala Shaw and Others Vs. Union of India, supra, relied on by learned counsel for the respondent, is also distinguishable because that was a case where deceased was using travelling pass unauthorizedly whereas its validity period expired. The pass could not be used to travel in that train. That case also is distinguishable on the facts. In view of the law laid down by the Supreme Court in various judgments, I am not inclined to follow the ratio of the judgment of Delhi High Court in Rama Shankar Sharma Vs. Union of India and Jamirul Nisha and Another Vs. Union of India, supra.
There is involvement of a train is not disputed by the respondent and further the respondent has not produced any evidence to show that he had been ran over by some other train. Moreover the postmortem report or the evidence adduced by respondent nowhere suggest that injuries sustained by deceased could have been obtained only by being ran over by the train and not by accidental fall from the train. Thus the said incident definitely falls within the ambit of untoward incident under Section 123(c)(2) of the Railways Act, 1989. It is argued that the learned Tribunal has misinterpreted the provisions of Section 124 of the Railways Act. The accident envisaged by the first part of Section 124 of the Railways Act is an accident 'to the 'train' or 'a part of the train' is self evident. The section speaks of an accident by reason of either (i) collusion or (2) derailment or (3) other accident to a train. Therefore, there is no ambiguity on that score. 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. Undoubtedly, the philosophy of Section 124 turns an existing 'fault liability' into a 'fault or no fault liability' and it is so because a carrier who transports passengers as a part of his business, when he charges fare, impliedly guarantees to carry him safely and this guarantee includes safety at the platform/waiting places. What Section 124 really does is to turn a liability, which was contingent on fault into an absolute liability. In this case, the deceased had died on account of an accident to the train due to some unforeseen circumstances/accident. This case definitely does not come within the purview of the exceptions. It was the responsibility of the railways to ensure the safety of the people at the railway lines, and accordingly the said incident is an accident to train entitling the applicants to claim compensation. Moreover, the term accident means something, which is unforeseen. The fact that the death has taken place by an accident to a train is not disputed thus the said accident comes within the definition of accident to train and is covered under the provisions of Section 124 and 124A of the Railways Act. There is no material on record to show that the incident, which took place, was not the untoward incident.
The train in this case was to halt at Bandikui some time after mid night and the deceased is stated to have boarded the train from Jaipur. The inquest of the dead body of deceased Kanhaiyalal was prepared under Section 174 of the Cr.P.C., which is on record and, according to that inquest report, that was prepared on 23.09.2004 itself, the brother of the deceased Kailash Meena informed the police that deceased Kanhaiyalal had gone to Jaipur for earning livelihood and his wife also left house with him, whom he dropped at her parents place. The police in its proceedings stated that since deceased was overrun by the train, therefore, he died. In the postmortem report also, this has been mentioned. The wife of the deceased also in her affidavit stated that the deceased had left her at her parents place on 22.09.2004 and informed on phone that either he would return back in the night from Jaipur or early in the next morning. The police in the result of investigation also reported that Kanhaiyalal died on account of being overrun by the train. In view of the law laid down by the Supreme Court in Union of India Vs. Prabhakaran Vijaya Kumar and Others, supra, the provision for compensation in the Railways Act is a beneficial piece of legislation, which should receive a lenient consideration and wide interpretation and not a technical view. Explanation given to Section 124A of the Railways Act merely provides that for the purpose of this section, "passenger" includes 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. The definition of 'passenger' given in Section 2(29) of the Railways Act provides that passenger means a person travelling with a valid pass or ticket. But, in the facts of the case, while it is evident that the deceased was travelling in train and the train in this case was to halt at Bandikui some time after mid night and the possibility that since the Bandikui Railway Station was left behind and he kept sleeping and could not get down. The deceased might have fallen while trying to get down and in that process he could have received injuries, which fact is in line with the statements of witnesses and also the postmortem report. In such a case as held by the Supreme Court in Union of India Vs. Prabhakaran Vijaya Kumar and Others, supra, principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault. The evidence that has been led on behalf of the claimants was sufficient to hold that deceased Kanhaiyalal was travelling in the Delhi-Ahmadabad mail from Jaipur to Bandikui and that he died in an untoward incident referred to in Section 124A of the Railways Act.
In the result the appeal is allowed. The impugned order of learned Tribunal is set aside. The appellants are thus entitled to compensation of Rs.4,00,000/- (Rupees four lacs), together with interest thereon at the rate of 6% per annum from the date of accident i.e. 22.09.2004. Compliance of the judgment be made within a period of three months from the date its copy is produced before the respondent.
(Mohammad Rafiq) J.
//Jaiman//