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Union Of India vs Laxmiben Bhavrav Sendhane (W/O. Decd.) on 27 February, 2017 cites

Union Of India vs Prabhakaran Vijaya Kumar & Ors on 5 May, 2008

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.
Supreme Court of India Cites 17 - Cited by 894 - M Katju - Full Document
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