Indian Kanoon - Search engine for Indian Law

(iii) a minor child of a pre-deceased daughter, if wholly dependant on the deceased passenger;

(iv) the paternal grandparent wholly dependant on the deceased passenger."

In the case on hand, the deceased who happened to be the younger brother of the claimant was handicapped. The Tribunal recorded the following findings while rejecting the claim application :

"6. Bare perusal of the above, would reveal that under no circumstances, a major brother can be said to be dependant upon minor Orthopaedic brother, particularly when he was too young and was not even employed. Therefore, whether the deceased was married or unmarried would make no C/FA/3301/2018 JUDGMENT difference in the eyes of law. We may observe that similar issue where minor children, who died in train accident and his brother and parents claim compensation on account of untoward accident has been dealt with by various court.

I find it difficult to take the view having regard to the provisions of the Act, 1989 as submitted by the learned counsel appearing for the appellant that the word 'dependency' should not be restricted only to economic dependence, but dependence of love, affection, care and protection of the deceased passenger as well.

In the aforesaid context, Justice K.N.Saikia of the Gauhati High Court, in the case of Md.Shaukat Ali v. General Manager C/FA/3301/2018 JUDGMENT (Claims) N.F.Railway and another, reported in (1987)1 Gau LR 172, has made some important observations. The Division Bench of the Gauhati High Court was dealing with the matter under the Indian Railways Act, 1890. His Lordship took the view that a rigorous of economic dependence as a criterion for paying compensation for death of children in train accident in the Indian society may appear to be contrary to natural love and affection of the parents. However, His Lordship, ultimately, left the matter for the Legislature to consider. I may quote the relevant observations of His Lordship K.N.Saikia, J. thus :

21. S. 82-A of the Railways Act, which was inserted by S. 2 of Act 3 of 1943, provides for liability of railway administration for loss occasioned by death of a passenger dying as a result of a railway accident and for personal injury and loss of property whether or not there has been any wrongful act, neglect or default on the part of the railway administration. S. 82-A applied only when the death is of a passenger travelling by train and meeting with an accident. The liability of the railway administration is notwithstanding any other provision of law to the contrary and it is only for loss occasioned by the death of a passenger dying as a result of such accident. The liability is limited by the sub-section (2), now to fifty thousand rupees in respect of one person. So the basis of the liability is "only for loss occasioned by death of a passenger". Is this loss to be confined only to economic loss directly and immediately caused by the death? Thus S. 82-A only provides an C/FA/3301/2018 JUDGMENT alternative remedy to that under the law of torts. The words "notwithstanding any other law to the contrary" refer clearly to the law of torts. This section only provides a cheaper and more expeditious remedy but it is limited remedy. As was held in Shreenath Singh v. East India Railway Administration, AIR 1952 Pat 466 (468), Section 82-A indicates that the liability imposed by it is independent of any wrongful act, neglect or default on the part of the railway administration, such as would entitle a person, who has been injured or suffered a loss, to maintain an action and recover damages in respect thereof. This was reiterated in Ram Chandra Prasad Sinha v. Union of India, AIR 1959 Pat 316 (318). S. 82-A makes the railway Administration liable to pay compensation for loss occasioned by the death of the passenger. The scheme of the group of Sections 82-A to 82-J is different from that of Fatal Accidents Act, 1855, where it is expressly provided that every action under that Act shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death has been caused. Even under the Workmen's Compensation Act, 1923 there is express provision in S. 8 that on the deposit of any money as compensation in respect of a deceased workman, the Commissioner under that Act shall take steps for determining the distribution of the amount of compensation and the compensation shall be apportioned amongst the dependents of the deceased workman. There can, therefore, be no bar to claiming and receiving compensation under any other law, for death of a passenger in a train accident, where no compensation is paid under S. 82-A of the Act.

C/FA/3301/2018 JUDGMENT All these factors need not necessarily be present in case of a passenger killed in a train accident. The loss of income or economic loss,. therefore, need not necessarily result from death of a passenger. Strict application of the concept of economic dependence may, in appropriate cases, result in denial of any compensation for the death of a passenger. While amending the Workmen's Compensation Act the legislature was not expected to envisage its effects on liability of Railway to pay compensation for death of passengers in train accident. The foundation of carrier's liability to compensation on the death of a travelling passenger cannot be said to be exactly the same as the foundation of liability of employers to pay compensation on death of their-workmen. While interpreting the word 'dependent' for the purpose of Section 82-A of the Act, this aspect may be necessary to be borne in mind. A rigorous principle of economic dependence as a criterion for paying compensation for death of children in train accident in the Indian society may appear, to be contrary to natural love and affection of the parents. If an entire children's special train were to be destroyed in an accident so that the entire children perished, even then no compensation could be claimed by their parents. The strict application of the criterion of 'dependent' may, therefore, result in a judgment 'ex lege' according to law, but 'ex acquitate' according to equity. However, it is a matter for the legislature to consider. We are to render justice according to law and I accordingly agree with my learned brother."