fa93.09.odt 1/14 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR FIRST APPEAL NO.93/2009 APPELLANT:- Union of India, Through General Manager, South Central Railway, Secunderabad. ...V E R S U S... RESPONDENTS:- 1. Hanumanprasad s/o Ramnarayan Sharma Aged about 70 years, Occu. Nil. 2. Smt. Tarabai w/o Hanumanprasad Sharma Aged about 65 years, Occu. : Household. Both r/o Akot File, Sadhana Square Village & Dist. Akola Maharashtra. ---------------------------------------------------------------------------------------------- [Shri P.S. Lambat, Adv. for appellant] [Shri M.R. Joharapurkar, Adv. for respondents] ---------------------------------------------------------------------------------------------- CORAM:- A.P. BHANGALE, J. DATED :- 24.11.2009 P.C. 1. The appeal under Section 23 of the Railways Claims Tribunal Act, 1989 is directed against Judgment and award dated 17.01.2003 passed by Railway Claims Tribunal, Nagpur Bench in fa93.09.odt 2/14 claim application No.89/OA-II/RCT/NGP/2000 by which the Tribunal awarded compensation in the sum of Rs.4,00,000/- payable to claimants as directed. 2. Facts briefly stated are :- Gopal, 22 year old, unmarried son of applicants- claimants holding 2nd class ticket was travelling by train No.9769 on Minakshi Express on 19.12.1999, fell down from the train and died on the spot near Home signal pole near meter guage line Akola station. The claimants (respondents herein) claimed compensation on account of death of their son in an untoward incident. The Railways (Appellant herein) resisted the claim denying liability. Evidence was recorded and arguments were head. 3. Tribunal held that deceased Gopal was bonafide passenger and died as a result of untoward incident within meaning of Section 123 of the Railways Act. Consequently claimants were held entitled to recover the sum of Rs.4,00,000/- as compensation. Railways were directed to pay it within 90 days failing which applicants-claimants were held entitled to recover fa93.09.odt 3/14 the statutory compensation amount along with interest at the rate of Rs.6% p.a. till final payment. 4. Learned Counsel for the appellant submitted that the respondent - Hanumanprasad was not accompanied with the deceased when the incident happened and there was no evidence as to how Gopal s/o Hanumanprasad died. It is contended that said Gopal was not bonafide passenger and therefor Tribunal erred to pass an award. 5. Learned Advocate for respondent however making reference to evidence and record as also relevant rulings supported the impugned judgment and award. 6. It must be noted that claimants had applied before the Tribunal in prescribed format giving particulars of untoward incident which occurred. The application was supported by Affidavit of claimant Hanumanprasad Sharma which furnished all details of the untoward incident occurred on 19.2.99 at noon time when claimant's 22 year old son Gopal fell down from Train No. 6769 on Minakshi Express near home signal pool meter guage Akola. According to claimant deceased Gopal was travelling to fa93.09.odt 4/14 Akola after doing his work at Akot and was travelling on current ticket. As train was over crowded he could not get seat and was standing near door and when train was nearing Akola he received jerk and fell down from the train and died on the spot. The accident was reported by police station Railway, Akola. Inquest was held by A.S.I. Shinde (badge no.41) Railway police Akola. Post mortem was done by Civil Surgeon Dr. Sharma at District Hospital Akola. 7. The contention of the Appellant that one “Matrubhumi” Daily News paper reported that deceased was 11 year old student is of no consequence in view of the condition of dead body described in inquest and post mortem notes. Newspapers may not reflect correct information even otherwise unless reporter concerned is examined; newspaper report would not carry any evidentiary value. The Appellant can not make a capital out of such wrong reporting contrary to evidence of father of the victim. Claimant – parents had lost their young 22 year old earning son in an shocking untoward incident. The evidence of father can not be brushed aside merely because he was not an eye witness of fa93.09.odt 5/14 untoward incident. Witness A.S.I. Shinde was summoned and examined to prove documentary evidence regarding the said untoward incident and the evidence led in its essence remained unshattered. 8. In order to support the impugned Award my attention has been invited to rulings on the subject ; (a) Union of India Vs. Gulam Dastagir 2009 (1) Mah. L.J. 997. This Court considered the provisions under Section 124-A of the Railways Act (24 of 1989) and earlier ruling in Union of India Vs. Prabhakaran Vijaya Kumar and others reported in 2008 (9) SCALE 182 = 2008 ACJ 1895. 9. It can not be disputed that Section 124-A of the Act lays down strict liability or no fault liability in case of Railway accidents. Hence, if a case comes within the purview of Section 124-A it is wholly irrelevant as to who was at fault. 10. The contention of the Appellant that deceased was travelling without ticket and from the roof of the train is nothing but a vain attempt to escape strict liability. Such contention cannot be accepted in view of ruling in Union of fa93.09.odt 6/14 India ...Versus...Borra Vijayalakshmi and others, reported in 2005 (3) T.A.C. 67 (A.P.). It is observed thus :- “The learned Counsel would place considerable stress on the explanation to seek except from the rigour of law in payment of compensation. To my mind though a person travelling by a train carrying passengers without ticket is not entitled for compensation, the burden to prove that Railway Administration is exempted from paying compensation for untoward incident on the ground of a person not buying a ticket would heavily lie on the Railway Administration. There are two reasons for this. First, it is well settled that when a person seeks exemption from any liability, the burden in justification of such exemption would certainly lie on the person seeking such exemption. Secondly, under Section 137 read with 55 of the Act, ticketless travel is made a culpable offence attracting imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Needless to point out that unless the statute so requires when an offence is alleged against a fa93.09.odt 7/14 person the burden lies on the prosecution to show that such person has violated law by not buying the ticket. In overruling objection by appellant, learned Tribunal correctly drawn an inference that at the time of inquest on the dead body of the deceased the ticket might have been lost and that PW 2, who is the person accompanied the deceased to the Railway Station, spoke that he saw Subramanyeswara Rao buying the railway ticket. There was no rebuttal of this statement and, therefore, the learned Tribunal observed that it cannot be concluded that a person was travelling without a ticket in a situation as was presented before it. For this reason, the submission of the learned Counsel for the appellant must be held as without merit. Insofar as the second submission is concerned the definition of untoward incident as contained in Section 123 (c) of the Act does not admit the reading of the provision. The submission is therefore rejected. In Union of India v. Uggina Srinivasarao (supra) this Court considered the scope of Sections 123, 124 and 124-A of the Act and dealing with the question whether accidental falling from a compartment of fa93.09.odt 8/14 the train would amount to “untoward incident” laid down as under : “The deceased is a bona fide passenger and while travelling on a train accidentally fallen down from the running train and received grievous injuries resulting in his death. Hence this is an “untoward incident” as defined under Section 123 (c) (2) of the Act and as such the dependents of the deceased are entitled to compensation in pursuance of Section 124-A of the Act. It has to be held that the accidental fall from any part of the compartment is covered by untoward incident. If there is a fall from the steps leading to the compartment, it is a fall from the train. The steps of the compartment cannot be disassociated from the compartment. They are integral part of the compartment. Therefore the contention that the deceased met with an accident while boarding on a running train is not an untoward incident, cannot be accepted. Also the contention that the person who is trying to board a train is fa93.09.odt 9/14 not a passenger cannot be accepted.” (Emphasis supplied)” 11. I may further note the legal provisions and rules amended as under :- 2. Section 124 of the Railways Act, 1989 provides for liability of Railway administration for loss occasioned by the death of a passenger dying as a result of the railway accident, and for personal injury and loss, or property whether or not there has been any wrongful act, neglect or default on the part of the Railway administration. Section 82-A of the Indian Railways Act, 1980 is the forerunner of this provision. The compensation payable by the Railway administration under Section 124 is “to such extent as may be prescribed” and to that extent only. The amount of compensation thus payable is specified in Schedule II of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. The Railways (Amendment) Act, 1994 which came into force with effect from 1.8.1994 brought in amendment to Section 123 by introducing a new concept of 'untoward incident'. As a consequence a new section as Section 124-A was also fa93.09.odt 10/14 introduced after Section 124 of the Act. The term “accident” is defined under Section 123 as an accident of the nature described in Section 124. An accident described in Section 124 is one which occurs in the course of working a railway either by 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. By the 1994 amendment Clause (c) was added to Section 123 which reads as follows :- “(c) '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 (Provisions) Act, 1987 ; or (ii) the making of a violent attack or the commission of robbery or dacoity ; or (iii) the indulging in rioting, shoot-put 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 fa93.09.odt 11/14 (2) the accidental falling of any passenger from a train carrying passengers.” A provision similar to Section 124 is provided under Section 124-A making the railway administration liable for loss occasioned by the death of a passenger as a result of an 'untoward incident occurring in the course of working a railway and for personal injury of the passenger whether or not there has been any wrongful act, neglect or default on the part of the railway administration. For the purposes of this section “passenger” includes, a railway servant on duty as in the case of Section 124. But this section would take in also 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. The quantum of compensation is prescribed by the same rules viz., Railway Accidents and Untoward Incidents (Compensation) Rules, 1990. 3. Rule 3 of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 provides that the amount of compensation payable in respect of death or injuries shall be as fa93.09.odt 12/14 specified in the schedule. These Rules are issued under Section 129 of the Railways Act, 1989 read with Section 22 of the General Clauses Act (10 of 1897) and in supersession of the Railway Accident (Compensation) Rules, 1989. The Rules came into force with effect from 1.8.1994. The Railway accident (Compensation) Rules, 1989 which were issued in exercise of the powers conferred by Section 82-A of the Indian Railways Act, 1890 contained more or less similar provisions as in the 1990 Rules which came into force on 1.8.1994. But the quantum of compensation prescribed under the Schedule was different. For example :- Under Part I to the schedule for death the amount of compensation prescribed under the 1989 Rules was only Rs.1,00,000/- which was enhanced to Rs.2,00,000/- in the 1990 Rules. Similar enhancement can be noticed against other items in Part II also. Subsequently, the Railway Accidents (Compensation) Rules, 1990 was further amended by Railway Accidents (Compensation) Amendment Rules, 1994 mainly for the purpose of taking in the compensation in respect of untoward incidents also. But we find that there was no enhancement of the quantum of compensation from what was fa93.09.odt 13/14 provided in the schedule under 1990 Rules. Three years later the Rules underwent a further amendment by Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997. By this amendment only change brought in was enhancement of the quantum of compensation. The amount was doubled against each item given under Parts I and II. The amount of Rs.2,00,000/- provided under sub-Rule (2) of Rule 3 as the amount of compensation payable for injury not specified in Part II or III of the schedule, but which in the opinion of the Claims Tribunal is such as to deprive a person of all capacity to do any work was enhanced to Rs.4,00,000/-. By an amendment to the second proviso to sub-Rule (3) of Rule 3 where a limitation for total compensation in respect of injuries not specified in the schedule or referred in sub-Rule (2) was enhanced from Rs.40,000/- to Rs.80,000/-. Rule 4 provides for a limit of compensation in respect of any one person. This limit was amended and enhanced from Rs.2,00,000/- to Rs.4,00,000/-. 4. Sub-Rule (2) of Rule 1 of the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 1997 fa93.09.odt 14/14 provides that those Rules shall come into force on the 1 st day of November, 1997. 12. For the above reasons the appeal lacks merits and fails. It is accordingly dismissed. JUDGE ssw