1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 722 OF 2005 Keshav s/o Poshetty Vantankar, Aged 12 years, Occupation Nil – Minor, Through his natural guardian (father) Poshetty s/o Bapayya Vantankar, Aged 40 years, Occupation Business, Resident of Nai Abadi, Ardhapur, Taluka Ardhapur, District Nanded. Appellant V E R S U S Union of India, Through General Manager, South Central Railway, Secunderabad. Respondent Mr. P.S. Agrawal, Advocate for the appellant Mr. M. N. Navandar, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 20th July, 2010 ORAL JUDGMENT 1. This appeal is filed against the Judgment and Award passed by the learned Members of Railway Claims Tribunal, Nagpur Bench, in Claim Application No.136/OAII/RCT/NGP/2003. 2. The appellant a minor boy aged about eight year got injured when he fell down from a running train at platform No. 3 of Mudkhed railway station at about 04.00 p. m. on 6th September, 2003. He said he and his friend one Rama boarded the train No. 441 down (Aurangabad – Mudkhed passenger) after buying a ticket for Mudkhed, at Nanded Railway Station. They boarded the train at about 02.30 p. m. It is his case that when the train approached Mudkhed railway station, both of them went towards the door of the compartment and waited for the train to stop. It is his case that all of 2 a sudden there occurred a jerk and he fell down from the train and slipped between the platform and the running train, and got injured. Due to the injuries, he lost left hand and right leg. Both these limbs were amputated. He also suffered injury to his head. Somehow the appellant survived and made this claim. The railway administration opposed the claim saying it was due to negligence of the appellant the accident occurred. In order to prove his case, the appellant examined his friend Rama (and not himself), who was accompanying him at the relevant time. The appellant’s witness Rama narrated the incident as narrated in the claim petition. But, in the cross examination, he admitted that the appellant was trying to get down from the train when the train was still moving. In view of this admission, the respondent/Railway Administration tries to argue that this “accidental falling of the appellant from the train” would not amount to an “untoward incident”, as defined under Section 123 (c) of the Railways Act, 1989 placing reliance on the proviso to Section 124 of the Act to suggest that the injuries suffered by the appellant were “self inflicted injuries”. 3. In order to appreciate this submission, one has to read the relevant provisions of the Act. Chapter XIII of the Act is relating to 'liability of Railway Administration for death and injury to passengers due to accidents'. Section 123 (c) defines term “untoward incident”, 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 attach 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 3 (2) the accidental falling of any passenger from a train carrying passengers.” 4. The appellant made this claim under Section 124 seeking compensation on account of his accidental falling from a train carrying passengers. The above quoted subsection (2) apparently shows that the incident was an untoward incident as defined. But S.124A of the Act provides some exceptions to the principle of strict liability. Section 124A reads as under : 124.A. 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 dependant of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, not withstanding 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. Explanation. – For the purposes of this section, “passenger” includes – (a) a railway servant on duty : and 4 (b) a person who has purchased a valid ticket for traveling , by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.) In view of the admission of the appellant’s witness that the appellant, while getting down from a moving train, fell down and sustained injuries, the railway administration asserted that the case would fall within the Exception defined in proviso (b) of Section 124A. In other words, they suggested that the appellant suffered self inflicted injuries. 5. It is an admitted fact that the train had already reached the platform No. 3 of the station where it was scheduled to be stopped. It is also clear from the admission of the witness that before the train could stop finally, the appellant tried to get down from the train. The appellant then was only seven-eight years old boy and was not probably accompanied by his parents or any other elder. It is common knowledge that at such situations even adults try to get down from the moving train, and, in many cases, people get down from the moving train successfully without getting injured. A person who tries to get down from a moving train certainly takes a risk of an accident and getting injured even fatally. It all depends on his experience of getting down from a moving train on a platform. Even an experienced train traveler in such an attempt could meet with an accident due to his misjudgment. Thus, an attempt to get down from the moving train is a risky. This has happened in this case when this young boy of eight years tried to get down from the moving train on the platform. 6. The question is, whether his case would fall within the mischief of clause (b) of section 124A? The answer should be in the negative. 7. A person in this situation cannot be accused of inflicting injuries to himself, because he takes a risk of getting down from a moving train but meets with an accident. An experienced train traveler 5 looking to the speed of the train thinks that he would be able to get down from the train. He never intends to hurt himself while getting down from the train. Yet if due to negligence on his part he gets hurt it could be only an accidental injury and not intentional one. It is not as if the train is moving in high speed and he yet tries to get down from the train. It may (in some other case) happen that a train having limited stops is not scheduled to stop at a station where a passenger wants to get down. When he finds the train is approaching the station where he wants to get down, he would come to the door of the compartment. Unfortunately for him, the train even starts running parallel to a platform. But, unfortunately, again the train is not scheduled to stop at that station and it keeps moving in high speed. In such situation, if a person jumps out of the train to get down from the same and gets injured in the process, it could at the most be remotely arguable example of 'self inflicted injury'. But I am not examining a case of that nature and am aavoiding to record finding on such case. 8. The circumstances, in which the appellant tried to get down from the train, were simply unfortunate. A boy of eight years probably unguarded by an adult tried to get down from the train while the train was still moving. It was a sheer accident and thus, it was be an “untoward incident”, as defined under Section 123 (c) of the Act. 9. In this regard a well known Judgment of the Supreme Court in the case of Union of India v. Prabhakaran Vijaya Kumar and others (2009 (1) Mh.L.J. 27) can be referred in support of my conclusion. In the reported case, the husband and minor son of one woman, who died in a train accident at railway station, were the claimants. The deceased bought a ticket and was trying to board a moving train. She could not board the train and accidentally slipped under the moving train and got killed. The Supreme Court rejected the argument of railway administration that the deceased was not travelling in the train but was trying to enter the same. Supreme 6 Court held that even an act of trying to enter the train and felling down during the process, would amount an untoward incident. The Supreme Court in this Judgment discussed the principle of strict liability invented in England with the famous case of Rylands v. Fletcher, and also noticed that the principle of strict liability in England gradually was diluted through various subsequent Judgments. However, in India, the land mark Constitutional Bench of the Supreme Court in the case of M.C. Mehta v. Union of India (AIR 1987 SC 1086), the Supreme Court noted, had gone much further than the principle of strict liability laid down in the Judgment of Rylands v. Fletcher. This liberal interpretation of the principle of strict liability, which is also known as ‘no fault liability’, persuaded the Supreme Court in this Judgment to hold as under : “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 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.” The learned members of the Tribunal failed to appreciate this aspect of the case and went on to hold that the appellant got injured as a consequence of his own imprudent conduct, lack of reasonable care warranted in the circumstances of the train travel etc. As discussed above, there is no possibility in circumstances of this case to examine, as to whether the injured sustained injury due to his own 7 carelessness. There is no scope for such discussion in view of the exceptions provided in proviso to section 124A. These exceptions do not include carelessness or negligence of the passenger concerned. It mentions incidents of suicide or attempted suicide and of an injury which is caused by 'self infliction'. An injury caused due to self infliction, is certainly different than an injury caused to a person due to his own negligence. Only the injury which is caused by self infliction is excluded by the said provision. In other words, the injuries, caused due to negligence of the passenger himself, are not covered in this provision. 7. Next question is, to what amount the appellant is entitled to ? The appellant has claimed Rs.4,00,000/- as compensation for the permanent disablement he has suffered due to loss of two limbs. From the photograph that has come on record and from the evidence it is seen that the appellant’s left hand is amputated just above the elbow, whereas his right leg is amputated at sheen level below the knee. When the incident took place the appellant was only eight years old. Section 127 of the Act provides as to how the amount of compensation is to be determined in respect of injury etc. Section 127 reads as under : “127. Determination of compensation in respect of any injury or loss of goods – (1) Subject to such rules as may be made, the rates of compensation payable in respect of any injuryshall be determined by the Claims Tribunal. (2) The compensation payable in respect of any loss of goods shall be such as the Claims Tribunal may, having regard to the circumstances of the case, determine to be reasonable.” As per the provisions of Section 129, the Central Government has framed Rules by name “The Railway Accidents and Untoward Incidents (Compensation) Rules, 1990” and provided a schedule thereto. As per the provisions of the schedule, the appellant is 8 entitled to a sum of Rs.4,00,000/- (Rupees Four Lakh). I am inclined to award 6% interest to this amount also. In view of the Judgment of Supreme Court in the case of Thazhathe Purayil Sarabi and others v. Union of India and another (AIR 2009 Supreme Court 3098) such additional order paying interest is possible even though there is no provision made for payment of interest in the rules. The appeal is allowed with costs of both the Courts. The Award may be issued accordingly ( A.V. NIRGUDE, J. ) srm/fa/722/05/ok 9