FA/303/2005 & OTHERS : 1 : vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.303 OF 2005 Union of India ... Appellant V/s. Harishchandra Sadashiv Magar ... Respondent Mr.Anand Samant for Appellant Mr.Vaneet Khosla for Respondent A/W FIRST APPEAL NO.179 OF 2002 Union of India ... Appellant V/s. Dilip M. Talreja ... Respondent Mr.Anand Samant for Appellant None for Respondent A/W FIRST APPEAL NO.1023 OF 1999 Union of India ... Appellant V/s. 1. Smt.Vidya Dilip Mulye 2. Gauri Dilip Mulye 3. Rutuja Dilip Mulye ... Respondents Mr.A.N. Samant for Appellant Mr.G.J. Mohan Rao for Respondents FA/303/2005 & OTHERS : 2 : A/W FIRST APPEAL NO.1158 OF 2005 Union of India ... Appellant V/s. Sugra Magan Padvi ... Respondent Mr.Anand Samant for Appellant None for Respondent A/W FIRST APPEAL NO.1447 OF 2005 Union of India ... Appellant V/s. Kamalakar M. Salvi & Ors. ... Respondents Mr.Anand Samant for Appellant None for Respondents A/W FIRST APPEAL NO.1515 OF 2003 Union of India through the General Manager Central Railway, Mumbai, CST. ... Appellant V/s. 1. Vishwas Sajjanrao Gajbhiv 2. Meena Vishwas Gajbhiv both residing at Kamble Chawl behind Juna Police Station Gautam Nagar, Ambernath (West) ... Respondents Mr.A.N. Samant for Appellant Mr.G.J. Mohan Rao for Respondents FA/303/2005 & OTHERS : 3 : A/W FIRST APPEAL NO.1516 OF 2003 Union of India through the General Manager Central Railway, CST. ... Appellant V/s. 1. Wamanrao Dnyanoba Bhagwat 2. Malti Wamanrao Bhagwat ... Respondents Mr.A.N. Samant for Appellant Mr.C.M. Jha for Respondents A/W FIRST APPEAL NO.1517 OF 2003 Union of India through the General Manager Central Railway, Mumbai, CST. ... Appellant V/s. 1. Shri M.K. Bhosale 2. Smt.Hirabai Maruti Bhosale residing at Mukkam Samsarwadi, Tal./Dist.:Satara, Post Yavatmal ... Respondents Mr.A.N. Samant for Appellant Mr.G.J. Mohan Rao for Respondents A/W FIRST APPEAL NO.1518 OF 2003 Union of India through the General Manager Central Railway, Mumbai, CST. ... Appellant V/s. 1. Shri Navnath Ramhari Shinde 2. Kashinath Kalyani Chawl Dharavi Koliwada, Patil Galli Sion, Mumbai-400017 ... Respondents FA/303/2005 & OTHERS : 4 : Mr.A.N. Samant for Appellant Mr.G.J. Mohan Rao for Respondents A/W FIRST APPEAL NO.1519 OF 2003 Union of India ... Appellant V/s. Kamal More & anr. ... Respondents Mr.Anand Samant for Appellant Mr.G.J. Mohan Rao for Respondents A/W FIRST APPEAL NO.1529 OF 2003 Union of India ... Appellant V/s. 1. Sangeeta Yogendra Gadekar 2. Miss Bhumka Y. Gadekar 3. Master Punit Y. Gadekar 4. Smt.Sushila Achyut Gadekar ... Respondents Mr.A.N. Samant for Appellant Mr.C.M. Jha for Respondents A/W FIRST APPEAL NO.1550 OF 2005 Union of India ... Appellant V/s. Taramati S. Mane ... Respondent Mr.Anand Samant for Appellant None for Respondent FA/303/2005 & OTHERS : 5 : A/W FIRST APPEAL NO.2508 OF 2005 Union of India ... Appellant V/s. Madhukar Patil & Anr. ... Respondents Mr.Anand Samant for Appellant None for Respondent a/w FIRST APPEAL NO.11 OF 2005 Union of India ... Appellant V/s. Ramkumar Keriprasad Oza & anr. ... Respondents Mr.Anand Samant for Appellant Mr.G.J. Mohan Rao for Respondents a/w FIRST APPEAL NO.625 OF 2003 Union of India ... Appellant V/s. G.B. Trivedi & Ors. ... Respondents Mr.Anand Samant for Appellant Mr.G.J. Mohan Rao for Respondents AND FIRST APPEAL NO.305 OF 2005 Union of India ... Appellant V/s. Shardaben Rasiklal Shah & Ors. ... Respondents FA/303/2005 & OTHERS : 6 : Mr.Anand Samant for Appellant Mr.G.J. Mohan Rao for Respondents CORAM: SMT.NISHITA MHATRE, J. DATED: APRIL 29, 2010 ORAL JUDGMENT: 1. Although the Record and Proceedings have not been received, the appeals have been taken up for final hearing at the request of the appellant herein. The questions involved in the present appeals are: (i) whether the deceased or injured who met with the railway accident was a bonafide passenger of the railways; (ii) whether the death of such a passenger who falls off the train could be said to be an “untoward incident” u/s 123(c) of the Railways Act 1989 (for short the Act) entitling his dependents for compensation u/s 124-A of the Act; and (iii) whether the Railway Claims Tribunal can grant interest beyond the rate of 6% p.a. Since these questions arise in all the appeals, they are being decided together. I will first deal with the aforesaid questions which arise in all the matters and then consider the facts in each case. 2. The Tribunal has found that the deceased or the injured, as the case may be, was a bonafide passenger in all these cases,. Although the railways have disputed this fact no evidence was led by the railways to establish their contention that the deceased/injured was not a bonafide passenger. Under section 2(29), a passenger means a person travelling with a valid pass or ticket. The definition of the term has been enlarged by the Explanation to section 124-A for the purpose of that section. In the cases of Union of India v/s. B.Koddekar & Ors., AIR 2003 AP 23; Mahadeo FA/303/2005 & OTHERS : 7 : Laxman v/s. Union of India, 2004 (4) Mh.LJ 266; Union of India v/s. Hari Narayan Gupta, 2008 ACJ 822; Mehar Parveen vs. Abdul Rab, 2007(3) ALL MR 549; and Sahadeo S. Sanas v/s. Union of India, 2010 Bom CR 43 the Courts have taken the view that the onus of proving that the deceased/injured was not a bonafide passenger is on the railways. As stated earlier, significantly, in all these cases, the railways have not cared to lead any evidence. Therefore it is not open for the railways to contend now that the deceased or the injured in the present cases were not bonafide passengers. 3. The other issue on which there is a controversy is whether a person could be said to be involved in an untoward incident within the parameters defined u/s 123(c) of the Railways Act if he falls off a train while travelling on it. 123(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 (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. "124-A. Compensation on account of untoward incident. - 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, 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 FA/303/2005 & OTHERS : 8 : 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 - (i) a railway servant on duty; and (ii) 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". (emphasis supplied) 4. In the case of Union of India v/s. Prabhakaran Vijaykumar, 2008(5) ALL MR 917, the Supreme Court has held that the provisions of section 124A of the Act cast a strict liability on the railways to pay compensation to the dependents of a passenger for the loss occasioned by his death. The Supreme Court has held that it matters little whether the passenger was in the moving train or was getting into the train when he met with the accident. The Supreme Court has while considering the provisions of section 123(c) and section 124-A has observed thus: 24. Strict liability focuses on the nature of the defendants' activity rather than, as in negligence, the way in which it is carried on (vide 'Torts by Michael Jones, 4th Edn. p. 247). There are many activities which are so hazardous that they may constitute a danger to the person or property of another. The principle of strict liability states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part. As Fleming says "permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overheads" (see Fleming on 'Torts' 6th Edn p. 302). 25. Thus in cases where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault. FA/303/2005 & OTHERS : 9 : 26. The basis of the doctrine of strict liability is two fold (i) The people who engage in particularly hazardous activities should bear the burden of the risk of damage that their activities generate and (ii) it operates as a loss distribution mechanism, the person who does such hazardous activity (usually a corporation) being in the best position to spread the loss via insurance and higher prices for its products (vide 'Torts' by Michael Jones 4th Edn p. 267) 5. The Supreme Court has also interpreted the expression “accidental falling of a passenger from the train carrying passengers” thus: 11. No doubt, it is possible that two interpretations can be given to the expression 'accidental falling of a passenger from a train carrying passengers', the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one. Hence in our opinion the latter of the abovementioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred vide Kunal Singh vs. Union of India (2003) 4 SCC 524(para 9), B. D. Shetty vs. CEAT Ltd. (2002) 1 SCC 193 (para 12), Transport Corporation of India vs. ESI Corporation (2000) 1 SCC 332 etc. 12. It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation vide Alembic Chemical Works Co. Ltd. vs. The Workmen AIR 1961 SC 647( para 7), Jeewanlal Ltd. vs. Appellate Authority AIR 1984 SC 1842 (para 11), Lalappa Lingappa and others vs. Laxmi Vishnu Textile Mills Ltd. AIR 1981 SC 852 (para 13), S. M. Nilajkar vs. Telecom Distt. Manager (2003) 4 SCC 27(para 12) etc. 6. Thus unless the railways prove that the death of the passenger occurred either because he committed suicide or because of a self inflicted injury or because of his own criminal act or because it was an act committed by him in a state of intoxication or insanity or that the death was due to natural causes or disasters or FA/303/2005 & OTHERS : 10 : medical or surgical treatment, which was required not due to the untoward incident, they are bound to pay compensation for the death or injury sustained by a bonafide passenger in an “untoward incident”. In some of these appeals, the passenger has expired in hospital when he was under treatment due to an injury caused by the untoward incident and therefore the claim has been granted by the Tribunal. 7. The last issue which remains to be considered whether the Tribunal could award interest at a rate more than 6% p.a. In the case of Tahazhathe Puryil Sarabi vs. Union of India, 2009 (8) SCJ 587, the Supreme Court considered the provisions of the Railways Act and observed that neither the Railway Claims Tribunal Act 1987 nor the Railways Act makes any provision for the award of any interest. However, in such circumstances, the Court has observed that where the statute does not make any specific provision for payment of interest on an awarded sum, the power of the Court to grant interest can also be derived from the provisions of the Interest Act, 1978 and the Code of Civil Procedure. The Court has further held: 16. It is, therefore, clear that the court, while making a decree for payment of money is entitled to grant interest at the current rate of interest or contractual rate as it deems reasonable to be paid on the principal sum adjudged to be payable and/or awarded, from the date of claim or from the date of the order or decree for recovery of the outstanding dues. There is also hardly any room for doubt that interest may be claimed on any amount decreed or awarded for the period during which the money was due and yet remained unpaid to the claimants. 17. The Courts are consistent in their view that normally when a money decree is passed, it is most essential that interest be granted for the period during which the money was due, but could not be utilized by the person in whose favour an order of recovery of money was passed. As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of the right to utilise the money due, which has been, in fact, utilized by the person withholding the same. Accordingly, payment of interest follows as a matter of course when a FA/303/2005 & OTHERS : 11 : money decree is passed. The only question to be decided is since when is such interest payable on such a decree. Though, there are two divergent views, one indicating that interest is payable from the date when claim for the principal sum is made, namely, the date of institution of the proceedings till the recovery of the amount, the other view is that such interest is payable only when a determination is made and order is passed for recovery of the dues. However, the more consistent view has been the former and in rare cases interest has been awarded for periods even prior to the institution of proceedings for recovery of the dues, where the same is provided for by the terms of the agreement entered into between the parties or where the same is permissible by statute. 8. Bearing the aforesaid settled principles in mind it is necessary to consider their applicability in each of these appeals. FIRST APPEAL NO.303 OF 2005 a. The present first appeal has been preferred against the judgment and order in Original Application No.677 of 2003 dated 29.9.2004. The Railway Claims Tribunal has allowed the application partly. The appellant has been directed to pay Rs.80,000/- to the respondent within 60 days from the date of the order failing which interest @6% p.a. was to be paid from the date of the order till realisation. b. The applicant was travelling by a local train from Vithalwadi to Mulund railway station on 12.12.2002. He was thrown on the tracks because of a sudden jerk and heavy rush in the train. He was grievously injured as he had fractured his tibia/fibula of both legs. The respondent herein therefore filed an application before the Railway Claims Tribunal (for short, `Tribunal’) for compensation. He contended in his application that he was a bonafide passenger and had a second class season ticket FA/303/2005 & OTHERS : 12 : which was lost after he fell on the tracks. The Tribunal accepted the evidence recorded and held that the applicant was a bonafide passenger. The appellant had not led any evidence to prove that the applicant was a ticketless traveller and therefore, accepted the version of the respondent. The Tribunal also accepted the police report which mentioned that the respondent had fallen on the tracks from a moving train. The medical certificates issued indicating that both the respondent’s legs were fractured on 12.12.2002 and the discharge summary from the hospital where the respondent was treated after being shifted from the hospital in which he was admitted initially were found reliable by the Tribunal. The documentary evidence and the respondent’s statement that he fell from a local train on account of a sudden jerk and therefore concluded that the respondent had sustained injuries on account of an untoward incident u/s 123C of the Railways Act 1989 were uncontroverted. The Tribunal held that the compensation payable for the injury sustained by the respondent was stipulated in part 3 of Schedule II of the Railway Accidents and Untoward Incidents (Compensation) Rules 1990. The Tribunal held that since the respondent had fractured bones in his limbs he was entitled to compensation of Rs.80,000/-. The Tribunal further awarded interest @ 6% p.a. In the event the amount was not paid within the time stipulated by the Tribunal. FIRST APPEAL NO.179 OF 2002 a. This is an appeal filed by the Railways in which they have challenged the award of compensation of Rs.2 lakhs along with interest @ 9% p.a. made in favour of the respondent. The respondent was travelling between Chalisgaon and Nandgaon. He had a monthly pass which was valid upto 24.7.1998. On 15.7.1998 while the FA/303/2005 & OTHERS : 13 : respondent was travelling by train he fell off the moving train. After recovering from the injuries sustained while travelling the respondent preferred an application under the Railway Accidents and Untoward Incidents (Compensation) Rules claiming compensation for the injuries sustained by him. b. Several documents were produced by the applicant in order to establish his claim of compensation. These documents included his identity card, disability certificate, station master's memo, police report, the statement of the applicant and statement of medical expenses along with the medical rules. The Tribunal accepted the contentions of the respondent and awarded the compensation. The Tribunal observed that the appellant had not specifically denied the contention of the applicant that he was a bonafide passenger. c. The applicant sustained crush injuries to his left leg which had to be amputated. The Tribunal presumed that the stump of the amputated leg was not beyond 5”. Considering the total cost of medicine and the injury sustained by the respondent herein the Tribunal awarded Rs.2 lakhs as compensation besides 9% interest from the date of the application till realisation. FIRST APPEAL NO.1023 OF 1999 a. Respondent No.1 is the wife and Respondent Nos.2 and 3 are the daughters of the deceased Dilip Vinayak Mulye. The respondents had filed an application for compensation before the Railway Claims Tribunal on account of the death of Dilip Vinayak Mulye. They contended that on 10.10.1997, the deceased fell from a local FA/303/2005 & OTHERS : 14 : train and sustained several injuries. He died the next day as a result of these injuries and therefore the respondents claimed compensation. b. The appellants filed a written statement contending that the appellants were not the dependents of Dilip Vinayak Mulye. They further contended this was not a case which fell under “untoward incident”. They further pleaded that the respondents were not entitled to compensation as the deceased was not a bonafide passenger. c. The respondent led evidence by examining Suhas Govind Dudhwadkar who knew the deceased as well as the respondents. He has stated that he saw the deceased at the booking counter waiting to purchase the railway ticket. This witness’s testimony has not been shaken in the cross-examination. The respondents also examined three other witnesses to establish that the deceased was a bonafide passenger. The testimony of these witnesses has not been shaken in the cross- examination. Though the railways have led evidence of the Deputy Station Superintendent, Borivali, the Tribunal found that his evidence did not demolish the case made out by the Respondents. The Tribunal concluded that the deceased was a bonafide passenger on the train and was involved in an untoward incident. The Tribunal further held that the respondents were entitled to compensation. Rs.2 lakhs was awarded to the respondents. An amount of Rs.75,000/- was kept in a fixed deposit in the name of the two minor daughters i.e. Respondent Nos.2 and 3 till they attained majority. An additional amount of Rs.50,000/- was directed to be paid to Respondent No.1. Thus, out of Rs.4 lakhs awarded to the respondents, Rs.1,50,000/- was directed to be placed in a fixed deposit in a nationalised bank. The Tribunal directed the railways to make the payment within 90 days failing which the interest FA/303/2005 & OTHERS : 15 : awarded was payable at 12% p.a. FIRST APPEAL NO.1158 OF 2005 a. One Maganlal Utariya Padwe met with an accident while travelling by train from Surat to Nandurbar. He was standing at the door of the compartment since there was a rush in the train. There was a sudden jerk while the train was in motion as a result of which Maganlal fell off the train. He sustained injuries which resulted in his death. An application was filed by his wife for compensation under the Railway Accidents and Untoward Incidents (Compensation) Rules before the Railway Claims Tribunal. She claimed an amount of Rs.4 lakhs as compensation together with interest thereon. b. The railways filed a written statement contending that the deceased had not met with an untoward incident as defined u/s 123C of the Railways Act 1989. It was therefore pleaded that the applicant i.e. the respondent herein was not entitled to any compensation. The railways further contended that the deceased was not a bonafide passenger. c. The respondent placed on record the First Information Report and the postmortem report. To establish her case that the deceased was a bonafide passenger of the railways, the respondent had produced an affidavit of one Prabhubhai who had met the deceased when he undertook the journey. This witness has stated in his affidavit that the deceased had purchased his ticket for the journey. Significantly, the railways did not think it necessary to cross-examine this witness. FA/303/2005 & OTHERS : 16 : Nor did the railways examine any witness in rebuttal. In these circumstances, the trial Court held that the deceased was a bonafide passenger holding a second class ticket for the journey from Surat to Nandurbar. The Tribunal accepted the fact that this ticket was lost when the accident occurred and therefore was not produced by the respondent before the Court. The Tribunal has therefore awarded a compensation of Rs.4 lakhs as payable under the Railway Accidents and Untoward Incidents (Compensation) Rules. FIRST APPEAL NO.1447 OF 2005 a. The appeal has been preferred by the heirs of the deceased who was travelling in a local train when he met with an accident. The respondents are the parents of the deceased. On 28.2.2002 the deceased was travelling in a local train, with his co-worker, from