IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 11 of 1985 For Approval and Signature: HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- PUSHPABEN JITENDRAKUMAR SHAH & OTHERS Versus UNION OF INDIA & OTHERS -------------------------------------------------------------- Appearance: 1. First Appeal No. 11 of 1985 MR V.C. DESAI, ADVOCATE, for the Appellants MR.R.M.VIN, ADVOCATE for the Railway - Respondent No.1 Notice served on the Respondent No.2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 25/06/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE R.K.ABICHANDANI for the Court) 1. The appellants have challenged the judgement and decree dated 4th May 1984 passed by the learned Civil Judge (S.D.) - Navsari in Special Civil Suit No.28 of 1981 dismissing the suit in which they have prayed for damages to the tune of Rs.1,20,000=00 with interest for the death of Shri Jitendrakumar Somchand Shah, who while travelling by 15th Down Saurashtra express on 30th April 1979 from Maroli railway station to Ahmedabad, was thrown out from the railway compartment while the train was moving between Maroli and Sachin and died as a result of injuries resulting therefrom. 2. According to the appellants-plaintiffs, Shri Jitendrakumar Somchand Shah was issued a ticket on 30th April 1979 by the railway for travelling from Maroli to Ahmedabad by 15 Down Saurashtra Express, and he entered the compartment on the basis of that ticket. According to the plaintiffs, the defendant No.1 was in the practice of issuing the tickets far in excess of the space and capacity of the compartments even though the train guard and station master and other employees had the knowledge about such overcrowding. On 30-4-1979, there was a heavy rush of passengers, but the defendant No.1 did not control or regulate or accommodate them. No steps were taken either for cancelling the excess tickets issued or for making any alternative arrangement for the safe journey of the ticket holders. The defendant No.1 allowed the said train to proceed further. It was contended in the plaint that, because of the excessive issue of tickets, ignoring the permissible capacity of the train compartments or the space available from the stations prior to Maroli station, there was chaos and passengers were "fighting their best to get into the train". The passengers were sitting on joining sections between the two compartments and some were sitting even on outer part of the windows of the compartments and some were holding the rods meant for alighting the compartment. The foot-boards of the compartments were also occupied by passengers and the rule of "might is right" prevailed. The compartments were completely jammed with passengers and "even the air could not reach them". The passengers were in a situation that could be compared with "entangled branches of tress and plants in a forest". It is alleged that there was also mud and water on the floor of the compartment making it slippery. As soon as the whistle went off, the remaining passengers from outside tried to force their way into the compartment in which Jitendrakumar had entered and though there was no scope for any further entry, the flow continued from the door of the compartment and at that time, the train was already in motion. The passengers from outside continued to enter the compartments from opposite direction through both the doors which were open. Because of the thrusts by the passengers entering the compartment in this manner, the deceased was pushed towards the edge of the door of the compartment and as he struggled to hold himself, his legs slipped and he fell down from the running train while the train was passing by the pole No. 254/6. When Jitendrakumar fell down from the train, the passengers pulled the emergency chain which, as stated in paragraph 11 of the plaint, was not working. The train did not stop until it reached to Udhna station. Some passengers rushed to the driver of the train and the guard and questioned them as to why the train was not stopped though the chain was pulled. Ultimately, Jitendrakumar, who was lying unconscious near the electric pole No. 254/6, was taken to the hospital where he was declared dead. According to the plaintiffs, the accident occurred because of the "fatal careless and negligence" of the railway administration. Jitendrakumar was drawing a salary of Rs.800 per month and was 40 years of age and on that basis, the compensation to the tune of Rs.1,20,000=00 was claimed. 3. In the written statement exh.11, it was contended that the deceased travelled by 15 Down Saurashtra Express for journey towards Ahmedabad from Maroli station "at his own sweet will". It was contended that the allegation regarding issuance of more tickets than the carrying capacity of passengers was baseless, and that, if there was no room in the coaches of 15 Down Saurashtra Express, the deceased could have travelled by any other train on the same day or could have returned the ticket to the Station Master, Maroli and taken the refund of the fare. It was contended that the defendants - railway authority did not force the deceased to travel by the said train. It was then contended that, on 30-4-1979, being a period of school / college vacation and marriage season, there might have been great rush of passengers which fact was known to all passengers due to the experience of such heavy traffic during the vacation. Since there was heavy rush of passengers, the deceased could have travelled by any other passenger train after the departure of Saurashtra Express or could have taken the refund of the fare. It is stated that the defendants could not have cancelled the train at Maroli or any other station, because, that would have caused other passengers, who were travelling from Bombay, great inconvenience. As regards the slippery floor, it was contended that some passengers might have thrown water in the compartment and that would be the negligence of those passengers and not of the railway. It is also contended that the deceased fell down from the train while standing near the door which was an act of gross negligence on his part and that, "because of the heavy rush, he must have fallen down from the compartment" (paragraph 13). If the deceased had taken a wise step of either travelling by a less crowded passenger train or getting his ticket cancelled, the said incident would not have happened. It is stated that the railway administration had full sympathy for the plaintiffs, but no legal right had accrued to claim any compensation in their favour. It was also contended that the railway administration was bound to provide accommodation only to passengers travelling in reserved coaches and since the deceased was travelling without reservation, availability of accommodation could not be guaranteed. According to the railway, the deceased died due to gross negligence on his part by entering in an already crowded compartment and thereafter, standing near the door knowing full well that it was dangerous to stand near the door in a running train. It is denied that the minimum standard of safety was not being observed by the defendants and it is alleged that since the deceased died due to his own negligence, the question of safety standards to be observed by the defendants did not arise. 4. The learned trial Judge held that the plaintiffs proved that the defendants - railway authorities issued "many more tickets than the capacity allowed" for 15 Down Saurashtra Express on 30th April 1979, and that the train was allowed to proceed further. It was also held that the railway administration had issued ticket exh.20 to Jitendrakumar Somchand Shah at Maroli station. However, on issue No.3, it was held that the plaintiffs did not prove that Jitendrakumar met with an accident which resulted in his death because of the negligence and careless of the railway authority. It was held that the defendants had proved that the deceased had met with the accident due to his own negligence, and that the railway was not bound to provide accommodation to all passengers who bought tickets. The trial Court held that the ordinary fact known to the deceased and the railway authorities at the time of issue of ticket to the deceased at Maroli railway station was that the trains were usually overcrowded and the deceased tried to travel by that train already knowing that he was not to get any seat in the compartment, and that he may have to travel standing on the foot-board. The deceased, having known this fact at the time of purchase of ticket by him and at the time of travelling, had to face the consequences of such travel. He could have selected not to travel by that train and could have surrendered the ticket and claimed the refund. The trial Court held that the evidence disclosed that the deceased was travelling standing just at the entrance of the compartment or standing on the foot-board and was hit by an electric pole which resulted into his death and in this, no negligence of the railway or its employees was disclosed so as to make it liable for the consequences. The learned trial Judge held that the railway company is not bound to carry passengers safely and securely at all events, but to take all reasonable care in the management of their trains so that the passenger is not exposed to undue danger. There is no obligation on the part of the railway to carry passengers safely, but it is only to carry them with reasonable care and diligence. It was held that the contract of a railway company with a passenger is not that of an insurer, but simply to take sufficient care and to use due diligence in providing materials for engine carriages and so on for the passage of the passengers. It was held that even if it was found that the deceased was hit by any of the poles erected at a distance of 2.1/2 feet to 3 feet from the compartment, it would not be the case of negligence of the railway authority. The learned trial Judge observed: "People met with their deaths only travelling against the rules by standing on foot-board or travelling hanging, having caught rod at the entrance to the compartment". The learned trial Judge, therefore, held that the plaintiffs were not entitled to get Rs.1,20,000=00 as damages. 5. The learned counsel for the appellants submitted that there was a duty cast on the railway to see that the compartments should not be overcrowded. He submitted that, under Section 63 of the Indian Railways Act, 1890 (which was applicable in the instant case, since the accident occurred prior to the coming into force of the Railways Act, 1989), the railway administration was bound to fix and display the maximum number of passengers that may be carried in each compartment of every description of carriage. It was submitted that, under Section 47(1)(b) of the said Act, the Central Government was required to make general rules consistent with the Act for providing for the accommodation and convenience of passengers and regulating the carriage of their luggage. It was submitted that if the provision of section 63 were not complied with, the railway was liable to be punished under Section 93 of the Act for contravention thereof. It was also argued that, if any railway servant, when on duty, endangers the safety of any person by disobeying any general rule or by any negligent act or omission, he was liable to be punished with imprisonment for a term which may extend to two years, under Section 101 of the Act. The learned counsel argued that, under the General Rules framed under Section 47, certain precautions were required to be taken before starting the train and the guard in charge of the train could not have given any signal for starting the train from the station until he had received the permission from the station master and the station master could give permission only when all was right for the train to proceed, as provided under Rules 114 and 115. He submitted that, under Rule 163, it was duty of every railway servant to see that every exertion is made for ensuring the safety of the public, and, every railway servant who observes any unusual circumstances likely to interfere with the safe running of trains, or the safety of the public and was required to take immediate steps to prevent the accident. Under Rule 138, every guard is required to give his best assistance to passengers entraining and detraining. It was therefore submitted that, looking to the provisions of Section 63 read with Section 93 of the Act and the Rules, it was the duty of the railway not to allow the passenger compartments to become overcrowded and that, in order to prevent overcrowding, the railway owed a duty to take a reasonable care and steps to prevent the compartments from becoming overcrowded. It was submitted that exhibiting maximum number of seats thereon implied that no excess passengers could be allowed. It was also submitted that the railway ought to have foreseen the natural and probable outcome of such overcrowding. The learned counsel submitted that, by issuing excess tickets with full knowledge that the train in question was overcrowded, the administration acted negligently, because, it could have foreseen the outcome of such excess issuance of the tickets which resulted in the overcrowding of the compartments. 5.1 The learned counsel relied upon the following decisions in support of his submissions : [a] The decision of the Supreme Court in A.V.Raju v. State of Orissa reported in AIR 1974 SC 1350, was cited to point out that, in the context of Section 101 of the said Act, the Supreme Court held that, where an engine driver in driving the engine backwards disobeyed a red signal and also took the engine beyond the authorized point, which resulted in collision with a goods train, he was guilty of endangering his own safety and the safety of the crew of the other train, and he thereby acted in a rash and negligent manner. [b] The decision of the Supreme Court in Ulahannan Rajan v. Union of India reported in AIR 1992 Kerala 230, was cited to point out that, in a case where the passenger was getting down from the compartment holding the third child in her hand and the train started moving, as a result of which, she and her child fell down, and, by the time her mutilated body was removed from under the train she had breathed her last and the child also succumbed to the injuries on the way to the hospital, the Court held that it was too much to believe that the employees of the railway were not aware of the fall on that day. The passenger fell while the train began to move after stopping at the station for some minutes. It was held that the evidence suggested that the guard, the driver and other employees had not bestowed the care expected from them and were negligent in their duties. The employees had an additional duty to see that all passengers had got down from the compartment and all intending passengers had got into the train. The Court referred to the Rules 150, 120, 130, 131 and 137 of the General Rules framed under Section 47 of the Act, and also to the decision in Taylor v. Manchester, Sheffield and Lincolnshire Rail Co., (1891-1894) All ER Rep 857, in which it was held that, even though the plaintiff had entered into a contract with the defendants by taking a ticket, his action for personal injury caused by the negligence or misfeasance of the defendants' servant was an action "founded on tort" and not one, "founded on contract"." [c] The decision of the Patna High Court in Union of India as Owner of O.T. Rly. v. Shri Nivas Mal Bairogiya, reported in AIR 1955 PATNA 282, was cited for the proposition that the question if overcrowding by itself amounted to actionable negligence, will depend upon the duty arising out of the contract and must depend upon the ordinary facts known to the contracting parties at the time of the contract. [d] The decision of the Madhya Pradesh High Court in United India Insurance Co. Ltd. v. Babulal, reported in (1993) ACJ 1100,, which was rendered in the context of the award of the Motor Accident Claims Tribunal, was cited to point out that where the motor bus was overloaded and some passengers were allowed to travel by standing at the door and it was because of the excessive speed that the deceased, who was allowed to stand at the back door, slipped and died, it was held that the bus driver was rash and negligent in causing the accident. 6. The learned counsel appearing for the railway submitted that the relationship between the passengers and the railway administration was purely contractual, by which the passenger is taken for travel for payment. It was submitted that, under Section 67(1) of the said Act, it was provided that fares shall be deemed to be accepted and tickets to be issued, subject to the condition of there being room available in the train for which the tickets are issued and that if there is no room available therein, there was a provision for refunding the amount of fare under sub-section (2) of Section 67 if the ticket was returned within three hours after the departure of the train. It was, therefore, submitted that the railway was not under any obligation to provide accommodation to the passengers and that if the train was overcrowded, the passenger ought to return the ticket and get the refund of his fare. It was argued that if, notwithstanding the carriage being crowded, the passenger gets into it and falls off the train, such an event cannot be attributed to any negligence on the part of the railway. In such cases, the passenger, who acts illegally by entering in the compartment which is overcrowded, would be guilty of negligence. It was submitted that though, looking to Section 63 read with Section 109 of the said Act, it cannot be denied that the railway was required to prescribe the maximum capacity of the compartments for accommodating the passengers, infringement of that requirement would be an illegality committed by the passenger concerned by getting into the compartment which is overcrowded. The learned counsel argued that every illegality is not necessarily negligence and that negligence is a concept of common law having its ramifications which are de hors the statutory provisions. The learned counsel contended that the ground reality was known to the deceased passenger that the train was overcrowded. He submitted that it was not the liability of the railway to control such overcrowding. Moreover, the railway could not have foreseen that the doors of the compartment would be open and that a passenger would be pushed out from a crowded compartment. It was also contended that assuming that there was overcrowding in the compartment, the further question that would arise was whether that negligence was a direct and immediate result of any act or omission of the railway. He submitted that negligence must be the immediate and proximate cause of the occurrence and that, in the present case, the immediate cause of the death of the passenger was not overcrowding of the compartment, but was pushes given by other passengers who had overcrowded the compartment which had resulted in this passenger being thrown out of the compartment. It was contended that the railway administration was not responsible for any such action on the part of the other passengers and could not have foreseen the same. According to the learned counsel, the incident occurred because of the intervening event of pushes given by other passengers and was not due to any negligence on the part of the railway even if there was any overcrowding of the compartment from which the passenger was thrown out. The learned counsel finally argued that even if the railway was held to be negligent, there was contributory negligence on the part of the passenger by getting into an overcrowded compartment. 6.1 The learned counsel, in support of his contentions, relied upon the following decisions : [a] The decision of the Bombay High Court in Shankar Narayan v. The Barsi Light Railway Co. Ltd., reported in 49 BLR 178, which was rendered in the context of Section 67 of the said Act, was cited for the proposition that the contract evidenced by the sale of the third class ticket to the plaintiff was subject to the provisions of Section 67 of the Act, and that if there was no regular third class compartment to be offered to the plaintiff, his only remedy was to refuse to travel by the Pilgrim Traffic Vehicle and ask for a refund of the fare under sub-section (2) of Section 67 of the Act. The learned counsel pointed out from this decision that the Court had referred to the decision of Jones v. Great Northern Railway Company, in which it was held that the only duty of the companies was to give such accommodation as they could and the passenger had no legal ground of complaint for inconvenience or discomfort from overcrowding. The High Court held that there was no complaint to any of the Station Masters that the wagon in which he was sitting was overcrowded. It was also held that the argument that as the maximum number of passengers was not fixed, the plaintiff could not prevent other passengers from entering into his vehicle as he could have otherwise done under Section 109 of the Act, had a good deal of force, but it was of no avail to the plaintiff, because, the Assistant Station Master had deposed that the vehicle could easily accommodate 45 persons and was not overcrowded. [b] The decision of the Privy Council in East Indian Railway Company v. Kalidas Mukerjee, reported in (1901) A.C. 396, was cited for the proposition that there was no obligation on the part of the railway to carry the passengers safely. In that case, the respondent had sued to recover damages for loss of his son, who died from the effect of burns received in a fire which took place in a railway carriage in which he was travelling as a third class passenger. It was held that the railway company was not liable for damages unless guilty of negligence in permitting the fireworks to be brought into the carriage. As it was not the duty of the company to search ever parcel carried by a passenger, the onus was on the plaintiff to show that the parcels containing the fireworks suggested danger. It was held that the railway companies were bound to use proper care and skill in carrying their passengers: they are not liable as common carriers of passengers independently of negligence. The distinction was made between an obligation to carry with reasonable care and diligence and the obligation to carry safely. [c] The learned counsel relied upon paragraph 73 in Chapter 3 of Charlesworth on Negligence (5th Edition), particularly to the observation that if a damage is not of the kind that was foreseeable the law will not provide any remedy. 7. The evidence on record clearly discloses that the train in which Jitendrakumar entered the compartment was already overcrowded