1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO. 1246/2005 1. Smt. Sunita w/o Pralhad Pawale, Age : 30 years, Occu. Household. 2. Akash s/o Pralhad Pawale, Age : 10 years, minor, Under Guardianship of his mother Sunita w/o Pralhad Pawale i.e. Claimant No.1. 3. Amrapalli d/o Pralhad Pawale, Age : 7 years, minor, Under Guardianship of other Mother Smt. Sunita W/o Pralhad Pawale, i.e. Claimant No.1. All R/o Ambetakli, Tq. & Dist. Parbhani. ..Appellants. Versus Union of India, Through General Manager, South Central Railway, Secunderabad. ..Respondent. CORAM : A.V. NIRGUDE, J. Date : 2nd August, 2010 ORAL JUDGMENT:- 1 This appeal is filed against the judgment and award passed by the learned Members of the Railway Claims Tribunal, Nagpur Bench in Claim Application No. 29/2004. The appellants were original applicants. The appellants filed the application under 2 Section 16 of the Railway Claims Tribunal Act, 1987 for claiming compensation on account of death of one Pralhad in an untoward incident. The appellants claim that they were dependent on deceased Pralhad. 2 On 3rd December, 2003, Pralhad boarded Train No. 347 Hyderabad - Purna passenger at 7.30 p.m. on Pokharni Station. He was intending to go to Aurangabad. He had bought requisite ticket to undertake the journey. Pralhad was standing in the door of the compartment and it seems soon after, the train left the Pokharni station, he fell down from the Train and came under the wheels of the Train. He died on the spot. 3 The respondent Railway administration filed the written statement and denied that Pralhad was bonafide passenger and that Pralhad did not fall from the Train but was hit by the Train. They also asserted that it was a case of suicide. After recording evidence, the learned Members of the Claims Tribunal, accepted the case of the appellants that Pralhad was bonafide passenger and he fell down from the Train. The learned Members rejected the Claim holding that Pralhad died due to self inflicted injury and the case would fall within the exception of Section 124-A of the Railways Act, 1989. The learned Members also placed reliance on the judgment of the Full Bench of the Andhra Pradesh High Court, in the case reported in 2004(1) ALT 100. In short, the learned Members held that in absence of the evidence that the Train was heavily crowded on that day, Pralhad should not have stood on the door way of the compartment. This was an act of negligence and so falling from Train in such situation would tantamount to self- inflicted injury. The law on this subject is now well settled. 4 Chapter XIII of the Railways Act, 1989 provides 3 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 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 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 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 4 owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident” From these provisions, following incidents are accidents as contemplated by Chapter XIII. (i) Collision between Trains of which one is a train carrying passengers. (ii) The derailments of any part of a Train carrying passengers. (iii) Any other accident to a Train carrying passengers, in addition to these kinds of accidents. 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 It is clear that Chapter XIII has recognized that a bonafide passenger of Railway administration is likely to get injured, killed etc. in an accident or due to an untoward incident. 7 Section 124A further provides as to when the Railway administration would be liable to compensate its bonafide passenger who sustains injury or get killed as a result of such 5 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 124 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; (v) An act committed by a bonafide passenger in a state of intoxication or insanity (vi) or in case the injury is caused due to natural cause or disease or surgical treatment etc.. 9 In this case, the Pralhad’s fall from the running train has not been denied. The respondent Railway administration tried to bring this fall within the mischief of Clause (b) of proviso to Section 124-A. The question therefore, is whether the Pralhad’s 6 fall from the running train was an incident of self-infliction of injury. This question was dealt with by the learned Members of the Railway Claims Tribunal in the impugned judgment and they held that since the deceased Pralhad negligently stood in the door way of the compartment of a running train, it was an act of negligence on his part and so they held that death of Pralhad was result of self-inflicted injury. While drawing such conclusion, as said above they took support from a Full Bench judgment of Andhra Pradesh High Court in the case of Union of India Vs. K. Balakrishnaiah and others (supra). But 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 reported in 2009(1) Mh.L.J. Page 27. The Supreme Court in this judgment inter alia 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 that judgment the Supreme Court has observed - “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 7 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 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 8 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 say that the deceased Pralhad died by sustaining self inflicted injuries. Even on facts, I would not accept the argument of the respondent that the deceased Pralhad was negligent when he chose to stand in the door way of a running train. It is common knowledge that though the Railways mention on each railway compartment its passenger carrying capacity boldly written it, passengers defy such instructions and enter compartments almost sitting on each others heads. Obviously, the Railway administration has no machinery to prevent over crowding of the trains. 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 train. Having regards to this reality, it can not be said that the appellant on his own volition chose to stand in the door way of the compartment. Like many other passengers, he took a risk of standing there. 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. In view of the peculier arrangment of S.124A read 9 with the defeinition of the term “untoward incident” it seems the burden to prove that the case would fall with in one of the exceptions of S.124A would be squarely on the Railway administration. They have failed to prove it. Thus the case would certainly fall within the definition of 'untoward incident', not affected by proviso (b) to Section 124-A. The appellants should therefore, succeed in proving that the deceased had sustained injury in 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 appellants. 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 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. 10 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.] tsk/fa1246.05/ok