1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL No. 1244 OF 2005 1- Smt. Nagabai W/o Dnyanoba Anapwad, age 55 years, Occu. Household, (deceased) 2- Gopal S/o Dnyanoba Anapwad, Age 40 years, Occu. Agriculturist 3- Kishan S/o Dnyanoba Anapwad, Age 35 years, Occu. Agriculturist, 4- Ramchandra S/o Dyanoba Anapwad, Age 30 years, Occu. Agriculturist. All r/o Jamgaon Tq. Umari, District. Nanded. APPELLANTS (Ori. Claimant) V E R S U S Union of India, Through General Manager, South Central Railway, Secundrabad. RESPONDENT (Ori. Respondent Shri. P.S. Agrawal, Advocate for the appellants. Shri. M.N. Nawandar , Advocate for the respondent . CORAM : A.V. NIRGUDE, J. DATE : 28th July, 2010. ORAL JUDGMENT 1. The appellants are challenging the 2 Judgment and Award passed by the learned Members of the Railway Claims Tribunal, Nagpur Bench in Claim application No. 28 of 2004. The appellants were applicants/claimants in the Court below. They made claim for compensation for accidental death of one Dnyanoba, the appellant No. 1's husband and appellant Nos. 2 to 4’s father. On 16/09/2003 Dnyanoba was traveling in train No. 707 Parbhani-Nizamabad passenger. He accidentally fell down from the moving train at about 3.00 p.m. near Umari Railway Station. Though Dnyanoba was taken to the hospital at Nanded, the doctors declared him dead at 5.00 p.m. The appellants made their claim asserting that Dnyanoba died in an 'untoward incident' and claimed fixed compensation of Rs. 4,00,000/-, under section 124A of the Railways Act, 1989. 2. The railway administration opposed the claim on all counts. The learned Members of the Tribunal after recording evidence of both the parties held that the appellants were Dependants of Dnyanoba & the deceased was a bonafide passenger of the train in question at the time of his death. But the learned Members of the Tribunal held that the Dnyanoba did not die in an 'untoward incident'. 3. The question is, whether Dnyanoba died in an 'untoward incident', and if, the answer is in 3 affirmative what would be the amount of compensation? 4. The appellants' witness No. 2 mentioned in his deposition that he was traveling with Dnyanoba on that day and he said that when he and Dnyanoba were standing in the door way of the railway compartment, Dnyanoba fell down from the train. In this back ground, the learned members of the Tribunal held that Dnyanoba’s act of standing in the door of the compartment was so negligent that its consequence tantamount to self inflicted injuries. While drawing such conclusion, the learned Members took support from a Full Bench judgment of Andhra Pradesh High Court in the case of Union of India Vs. K. Balakrishnaiah and others reported in 2004(2) T.A.C. 130. 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 interalia 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 4 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 appropriate item of its overheads”. The Supreme Court in Prabhakaran's 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”. 5. In Prabhakaran's case, the Supreme Court was dealing with peculiar facts. It was a case where 5 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 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”. In view of this judgment, there is hardly any scope for the respondent to submit that the deceased had 6 sustained self inflicted injuries. Even on facts, I would not accept the argument of the respondent that the deceased was negligent when he chose to stand in the door way of a running train. 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 died in an untoward incident and that the Railway administration was liable to pay them compensation. Since the liability of the Railway administration under S.124A of the Railways Act 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 appellants would be entitled to get compensation. The Schedule annexed to the Rules provides an amount Rs.4,00,000/-as compensation in case of accidental death of a bonafide passenger. This amount thus, is payable to the appellants. 6. 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 7 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. ORDER The appeal stands allowed. The respondent shall pay Rs. 4,00,000/- (Rs. Four lac), to the appellants 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.] SDM* 1244.05FA/ok