FAO No. 1066 of 1998 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 1066 of 1998 and Cross Objections No. 43-CII of 2003(O&M) Date of decision: 31.1.2011 Union of India .. Appellant v. Shri Mohinder Singh .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Jagdish Marwaha, Advocate for the appellant. Mr. Paul S. Saini, Advocate for the respondent-cross objector. ... Rajesh Bindal J. Challenge in the present appeal is to the order dated 22.1.1998, passed by Railway Claims Tribunal, Chandigarh Bench, Chandigarh (for short, `the Tribunal') in OA-II/50/1997, whereby the respondent has been awarded compensation of ` 2,00,000/- on account of the death of Smt. Gurmej Kaur. Briefly, the facts are that on 7.1.1997, at about 1.30 A.M., deceased-Gurmej Kaur was returning home from Jagadhri after meeting her relatives at Jagadhri along with her daughter. After purchasing tickets at Jagadhri Workshop Railway Station for Amritsar, they went to board Haridwar Passenger 349 UP train at Platform No. 2 at Jagadhri Workshop Railway Station. There was heavy rush. Though the daughter was able to enter the compartment, but when the deceased was in the process, she was pushed because of heavy rush and the train started. She was crushed under the train after she fell down. The claim application was filed before the Tribunal, which was accepted. The appellant being aggrieved is before this Court. The respondent has filed cross objections seeking enhancement of compensation. FAO No. 1066 of 1998 [2] Learned counsel for the appellant submitted that in the case in hand, Smt. Gurmej Kaur did not die on account of any negligence of the Railways, rather, she herself was negligent. She should not have boarded the train when there was heavy rush. Her daughter should have ensured that her mother first boards the train and thereafter she enters. When a person himself attempts to board a heavily loaded running train and in the process falls, Railway Administration cannot be held liable. On the other hand, learned counsel for the respondent- cross objector submitted that the case in hand falls under Section 124-A of the Railways Act, 1989 (for short, `the Act'), where on account of any untoward incident, the person concerned or the dependents are entitled to claim compensation. Negligence is not required to be proved. He further submitted that in terms of the provisions of the Act and also the judgment of Hon'ble the Supreme Court in Rathi Menon v. Union of India, AIR 2001 SC 1333, the respondent-cross objector is entitled to be paid compensation of ` 4,00,000/- as against ` 2,00,000/- assessed by the Tribunal. It is for the reason that the interpretation, as has been given by Hon'ble the Supreme Court in the aforesaid case is that the claimants are entitled to compensation in terms of the provisions of the Act/Rules, as are available on the date of determination thereof by the Tribunal. In the present case, the Tribunal had passed the order on 22.1.1998, whereas vide amendment carried out w.e.f. 1.11.1997 in Part-I of the Schedule attached to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 (for short, `the Rules') on account of death, ` 4,00,000/- was fixed as compensation. After hearing learned counsel for the appellant, I do not find any merit in the submissions made by learned counsel for the Railways. The kind of accident in which Smt. Gurmej Kaur died would certainly fall within the eventualities, as provided or in Section 124-A of Act. The contention of learned counsel for the appellant that the deceased and her daughter themselves were negligent has no legs to stand. It is not the case of the appellant that the deceased committed suicide. It is a mater of common knowledge that passenger trains are always over-loaded. In the process of boarding a train, the passengers push each other as the stoppage of a train at a particular station is for limited time, but is the duty of the driver and the conductor of the train to see that none of the passenger is in a position that FAO No. 1066 of 1998 [3] he can fall when the train starts moving. In the present case to contend that the daughter should have allowed the mother to board the compartment first is totally mis-conceived. A mother would always like her daughter to board the train or bus first and then enter later. For the reasons mentioned above, I do not find any merit in the appeal filed by the Railways. Accordingly, the same is dismissed. As far as cross objections filed by the respondent-claimant is concerned, I find merit therein. The date of accident in the present case is 7.1.1997. The Tribunal had passed the order on 22.1.1998. The amount of compensation to which the claimants are entitled to is prescribed in the Rules. Vide amendment carried in the Schedule attached to the Rules w.e.f. 1.11.1997, the amount of compensation provided for in case of death of a passenger was increased to ` 4,00,000/-. In Rathi Menon's case (supra), Hon'ble the Supreme Court opined that in terms of the provisions of Section 124 and 124-A of the Act, the Railway is liable to pay compensation to the extent as may be prescribed. It is to mean when such amount of compensation is determined by the Tribunal. The relevant paragraphs thereof are extracted below: “22. The collection of the words “as may be prescribed” in Section 124A of the Act is to be understood as to mean “as may be prescribed from time to time”. The relevance of the date of untoward incident is that the right to claim compensation from the Railway Administration would be acquired by the injured on that date. The statute did not fix the amount of compensation, but left it to be determined by the Central Government from time to time by means of rules. This delegation to the Central Government indicates that it was different for the Parliament to fix the amount because compensation amount is a varying phenomenon and the government would be in a far advantageous position to ascertain what would be the just and reasonable compensation in respect of a myriad different kinds of injuries by taking into account very many factors. What the Legislature wanted was that the victim of the accident must be paid compensation and the amount must represent a reality which means that the FAO No. 1066 of 1998 [4] amount should be fair and reasonable compensation. Government have the better wherewithal to ascertain and fix such amount. It is for the said reason that the Parliament left it to the Government to discharge that function. Sections 124 and 124A of the Act speaks the same language that “the Railway Administration shall be liable to pay compensation”. As pointed above, it is the liability of the Railway Administration to “pay compensation to such extent as may be prescribed”, Hence the time of ordering payment is more important to determine as to what is the extent of the compensation which is prescribed by the rules to be disbursed to the claimant. xx xx xx 24. In this context we may look at section 128(I) also. It says that the right of any person to claim compensation before the Claims Tribunal as indicated in Section 124 or 124A shall not affect the right of any such person to recover compensation payable under any other law for the time being in force. But there is an interdict that no person shall be entitled to claim compensation for more than once in respect of the same accident. This means that the party has two alternatives, one is to avail himself of his civil remedy to claim compensation based on common law or any other statutory provision and the other is to apply before the Claims Tribunal under Section 124 or 124A of the Act. As he cannot avail himself of both the remedies he has to choose one between the two. The provisions in Chapter XIII of the Act are intended to provide a speedier remedy to the victims of accident and untoward incidents. If he were to choose the latter that does not mean that he should be prepared to get a lesser amount. He is given the assurance by the Legislature that Central Government is saddled with the task of prescribing fair and just compensation in the rules from time to time. The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims in a speedier measure. If a person files a suit the amount of compensation FAO No. 1066 of 1998 [5] will depend upon what the court considers just and reasonable on the date of determination. Hence when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination.” [Emphasis supplied] The aforesaid view was followed by Hon'ble the Supreme Court in N. Parameswaran Pillai v. Union of India, 2002 ACJ 841 and Karnataka High Court in Mahaboob Bee v. Union of India, 2003 ACJ 712. In view of the authoritative pronunciation of law in Rathi Menon's case (supra) and N. Parameswaran Pillai's case (supra), the cut off date for determination of compensation has been prescribed as the date on which the Tribunal passes the order. In the present case, on the date when the Tribunal decided the claim petition, the amount of compensation prescribed being ` 4,00,000/-, in my opinion, the cross objections filed by the claimant is liable to be accepted and consequently the amount of compensation payable to him is enhanced to ` 4,00,000/-. The same shall be payable to the claimant along with interest @ 6% per annum from the date of filing of claim petition before the Tribunal till its payment. The amount of compensation along with interest thereon shall be disbursed by the appellant to the claimant (cross-objector) by transferring the same in his bank account, the particulars of which shall be furnished by him with requisite proof to the Chief Claims Officer, NDCR Building, Northern Railway, New Delhi. Accordingly, the appeal filed by Union of India is dismissed, whereas the cross objections filed by the claimant-respondent are accepted in the manner indicated above. ( Rajesh Bindal ) Judge 31.1.2011 mk