1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 1247/2005 1.Ramvilas s/o Parasram Oza, Age : 52 years, Occu. Private Service, R/o Lohar Galli, Nanded. 2.Sow. Nalini w/o Ramvilas Oza, Age : 45 years, Occu. Houehold, R/o R/o Lohar Galli, Nanded. ...Appellant. Versus Union of India, through General Manager, South Central Railway, Secunderabad. ...Responden t. Shri P.S. Agrawal, Advocate for appellant. Shri M.N. Navandar, Advocate for respondent sole. CORAM : A.V. NIRGUDE, J Date : 9th August, 2010. ORAL JUDGMENT:- 1 This appeal is filed against the judgment and award passed by the Railway Claims Tribunal, Nagpur Bench, dated 30th September, 2004 in Claim Application No. 116/2003 in which the appellants were the applicants. 2 The facts leading to the litigation are as under. The applicants are parents of one Jagdish Ramvilas Oza aged 24 years. It is the case of the appellants that 2 their son Jagdish boarded Train No. 7618 on 09/03/2003 and he was standing in the door of the compartment. He fell down from the moving train and was killed instantaneously. The appellants made their claim asserting that Jagdish died in an 'untoward incident' and claimed fixed compensation of Rs. 4,00,000/-, under section 124A of the Railways Act, 1989. 3 The Railway administration opposed the claim saying that it was not a case of accidental fall. It is their case that Jagdish committed suicide by probably standing in front of the moving train. However, the Railway administration did not lead any evidence in support of their case. On the contrary, the appellants led evidence of an eye witness who stated that he and Jagdish boarded the train on that day at 10.10 a. m. at Nanded and he said, Jagdish fell down from the door of the compartment at about 1.00 p. m. near Wanegaon station. He said, thereafter, the alarm chain was pulled and train was stopped. The appellants produced documents such as the report under Section 174 of Cr.P. C. about the accidental death of Jagdish, the inquest panchanama recorded by the police and also the post mortem report. In absence of evidence of the respondent, the learned Members of the Tribunal held that Jagdish was bonafide passenger and he fell down from the moving train. However, the learned Members of the Tribunal dismissed the claim holding that Jagdish 3 should not have stood in the door of the compartment. They held that it was due to the negligence on the part of Jagdish alone, he sustained injuries and died. They held that this is the case which would fall within the exception (b) to the proviso to Section 124-A of the Railways Act. They also placed reliance on the judgment delivered by the Full Bench of Andhra Pradesh High Court in case of Union of India Vs. K. Balakrishnaiah and others reported in 2004(2) T.A.C. 130. The full Bench of Andhra Pradesh High Court by majority held that the expression “self inflicted injury” appearing in clause (b) to the proviso to Section 124-A denotes and includes an injury suffered as a direct proximal and reasonable expected consequence of victims wrongful act default, negligence or the absence of the requisite degree of care and prudence on his part. This judgment however is no more good law in view of the judgment of Supreme Court in the case of Union of India Vs. Prabhakaran Vijay Kumar and others reported in 2009(1) Mh.L.J. Page 27. 4 Chapter XIII of the Railways Act, 1989 provides provisions for “liability of Railway administration for death and injury to passenger due to accident”. The scheme of Chapter XIII is quite peculiar. On one hand, it clearly lays down that the Railway administration is strictly liable to pay compensation to 4 its passengers irrespective of wrongful act, neglect or default on the part of Railway administration. But, on the other hand, the provisions limit the compensation to a prescribed amount. The provisions of the Railway Claims Tribunal Act, 1987 further lays down that the claims arising from Chapter XIII and other provisions of the Railways Act, 1989 would be entertained and decided only by the Tribunal constituted under the provisions of the Railway Claims Tribunal Act, 1987. It also provides bar of jurisdiction under Section 15 on other Courts or authority, for deciding such Claims. The nature of the scheme clearly shows that the provisions for compensation in Chapter XIII is a beneficial piece of legislation. In this back ground, one has to appreciate the facts of the case and interpret the provisions of Chapter XIII. 5 Section 124 defines the term 'accident' as contemplated by Chapter XIII. It reads as under. Section 124:- “When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, 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 has suffered a loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything 5 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 a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident” Chapter XIII also defines an unusual term namely “untoward incident”. Section 123(c) defines it as under:- “Untoward incident” means - (1)(i) the commission of a terrorist act within the meaning of sub-section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987), or (ii) the making of a violent attack or the commission of robbery or dacoity; or (iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers. 6 Chapter XIII thus has recognized that a bonafide passenger of Railway administration is likely to get injured, killed etc. in an accident or in an untoward incident. 7 Section 124A further provides as to when the 6 Railway administration would be liable to compensate its bonafide passenger who sustains injury or get killed as a result of such untoward incident. Section 124-A reads as under. “Compensation on account of untoward incidents:- 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; (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. 8 The first part of Section 124A clearly lays down the 'rule of strict liability'. Proviso to Section 124- A makes exceptions to the general rule of strict liability in following types of cases. (i) Suicidal death; (ii) Injuries caused in attempted suicide; (iii) Self inflicted injury; (iv) The passenger’s own criminal act; 7 (v) An act committed by a bona fide passenger in a state of intoxication or insanity or in case the injury is caused due to natural cause or disease or surgical treatment etc.. 9 In this case, the Jagdish's death is proved to have been occurred due to his fall from the moving train. The respondent Railway administration tried to bring this fall within the mischief of Clause (b) of proviso to Section 124-A. But as said above the law on this subject is finally settled by the Supreme Court in the case of Union of India Vs. Prabhakaran Vijay Kumar and others (supra). The Supreme Court in this judgment interalia held that- “The provisions for compensation in the Railways Act is beneficial piece of legislation and it should receive a liberal and wider interpretation and not narrow and technical one. The Supreme Court in this judgment discussed the scope of principle of strict liability which is made applicable in our country through the landmark judgment of Supreme Curt in the case of M.C. Mehta Vs. Union of India reported in AIR 1987 S.C. 1086. The Supreme Court observed that in India, the judgment of M.C. Mehta’s case imposed principle of strict liability in our country without any restriction. In the judgment of M.C. Mehta’s case the Supreme Court had observed - 8 “If the enterprise is permitted to carry on any hazardous or inherently dangerous activity for its profit the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such hazardous or inherently dangerous activity as an appropriate item of its overheads”. The Supreme Court in this judgment also held that Section 124-A of the Railways Act, 1989 incorporates the principle of strict liability. Saying so the Supreme Court further held as under. “However, apart from the principle of strict liability in Section 124-A of the Railways Act and other statutes, we can and should develop the law of strict liability de-hors statutory provisions in view of the Constitutional Bench decision of the Supreme Court in M.C. Mehta’s case. In our opinion, we have to develop new principles for fixing liability in cases like the present one”. 10 In Prabhakaran's case, the Supreme Court was dealing with peculiar facts. It was a case where the deceased woman was trying to catch the moving train. While she was running after the train and trying to enter the train, she fell down and got killed. The 9 appellant union of India(Railway administration) asserted that it was not a case of accidental fall of a passenger from a train carrying passengers. But the Supreme Court held as under. “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 travelling 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 travelling 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”. 11 In view of this judgment, there is hardly any scope for the respondent to submit that the deceased had sustained self inflicted injuries. Even on facts, I would not accept the argument of the respondent that 10 the deceased was negligent when he chose to stand in the door way of a running train. It has come in the evidence that the train was crowded and that compelled the appellant to accommodate himself in the door way of the compartment. It is common knowledge that though the Railway administration mentions on each railway compartment its 'passenger carrying capacity' boldly, the crowd of passengers defy such instruction and enter compartments almost sitting on each others heads. The Railway administration has no machinery to prevent over crowding of the trains. In absence of such arrangement, the Railway administration tacitly allows its passengers to take risk of standing in the door ways and even cling to handles and bars of the windows and doors while travelling in crowded trains. Having regards to this reality, it can not be said that the deceased on his own volition could have chosen to stand in the door way of the compartment. Like many other passengers, he took a risk of standing there. He probably depended on his physical strength to hold on to the bar of the door, till the train stops on a station where he would be able to take some rest and respite. So, his falling down from the running train would amount to an accident. It can not be said that he intended to get himself hurt by standing in the door way because there was risk of falling down. 11 Thus the case would certainly fall within the definition of 'untoward incident', and would be affected by the proviso (b) to Section 124-A. The appellants should therefore, succeed in proving that the deceased died in an untoward incident and that the Railway administration was liable to pay them compensation. 12 As said above, since the liability of the Railway administration is limited one, one must peruse the provisions of the Railway accident and untoward compensation Rules, 1990 to find out as to, to what amount the appellant would be entitled to get compensation. Schedule annexed to the rules provides that for a loss of hand and foot, the amount of compensation would come to Rs.4,00,000/-. This amount thus, is payable to the appellant. 13 In addition to this amount, I am inclined to direct the respondent to pay 6% interest on the said amount from the date of the application till the amount is paid. I am aware that there is no provision made in the above mentioned Rules for payment of interest on the amount of compensation. However, the Supreme Court has dealt with such situation in the judgment in the case of Thazhathe Purayil Sarabi and others Vs. Union of India and another reported in AIR 2009 Supreme Court 3098. The Supreme Court 12 held, in absence of statutory provisions, the Court has ample powers to grant interest, in view of the provisions of Section 34 of the Code of Civil Procedure and Section 3 of the Interest Act. ORDER The appeal stands allowed. The respondent shall pay Rs. 4,00,000/- (Rs. Four lac), to the appellant along with 6% interest from the date of the application till the amount is paid, along with cost of this litigation in both the Courts. [A.V. NIRGUDE, J.] task/fa1247.05/ok