IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 MFA.No. 192 of 2010() --------------------- OA.(iiu) ERS/2009/0122 of RAILWAY CLAIMS TRIBUNAL, ERNAKULAM BENCH ................................. APPELLANT(S): ------------------------- KRISHNAKUMAR.G., AGED 29 YEARS, S/O.R.GOPINATHA PILLAI, DEVI NIVAS, KARUKAYIL WARD, THATHAMPILLY P.O., ALAPPUZHA DISTRICT. BY ADV. SRI.MARTIN G.THOTTAN RESPONDENT(S): ---------------------------- UNION OF INDIA REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, PARK TOWN P.O., CHENNAI. BY ADV.SRI.C.S.DIAS,SC, RAILWAYS THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss C.R. R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- MFA No.192 of 2010 ------------------------------------------- Dated this the 10th June, 2011 JUDGMENT Basant, J. (i) Is the right under S.124A of the Railways Act one that is personal to the one on whom the right vests and consequently not heritable? (ii) Cannot the sole legal heir of a decree holder step into his shoes after his death and claim recovery of the amount that has fallen due under Section 124A and which remains unpaid? These questions are raised for consideration in this appeal. 2. A brief reference to facts may be necessary to ascertain the precise dispute. Sreekumar - the victim, a bachelor succumbed to injury suffered by him in an untoward accident on 27.6.2008. He left behind as his kin, his father, mother and one brother. His father as one of the dependents claimed amounts under Section 124A of the Railways Act before the Railway Claims Tribunal. The claim was allowed vide order dated 24.2.2010. Prior to MFA No.192 of 2010 2 that, the mother of Sreekumar, the only other dependent, had expired on 6.4.2009. 3. The claimant, father of Sreekumar also expired on 9.4.2010. The amount due under the order dated 24.2.2010 had not been paid to the deceased claimant prior to his death. In these circumstances, the appellant herein, the only legal heir of his deceased father, (admittedly he is not a dependent of the victim Sreekumar) wanted the award to be executed in his favour. He therefore filed application before the Railway Claims Tribunal claiming execution of the order and release of the amounts to him. 4. That application was resisted. The Railway Claims Tribunal by the impugned order took the view that the legal heir of a deceased dependent, who is not himself a dependent of the victim, is not entitled to seek execution of the order in favour of his predecessor/dependent. Accordingly, the Railway Claims Tribunal proceeded to pass the impugned order. 5. The Tribunal appears to have taken the view that only a dependent can seek execution of an order directing MFA No.192 of 2010 3 payment of amounts under Section - 124A of the Railways Act. In coming to the conclusion, the Tribunal appears to have taken the view that Chapter-XIII of the Railways Act is a self contained code to which other laws and general principles of law are not applicable. 6. The two questions referred to in paragraph-1 arise in this context. We note that question No.2 directly arises for consideration though question No.1 also incidentally arises for consideration. 7. While the appellant concedes that a claim under Section 124A can be staked under Section 125 of the Railways Act only by a dependent, it is his contention that the order passed in favour of the dependent can be executed and fruits thereof can be realised by the legal heirs of a deceased dependent - decree holder. The learned counsel for the appellant Sri.Martin contends that it is incorrect to assume that the right under Section 124A is an exclusively personal right for the specified dependent which is not heritable by the legal heirs of the deceased dependent. The learned counsel for the Railways Sri.C.S.Dias on the contrary contends that going by the MFA No.192 of 2010 4 scheme of Chapter-XIII of the Railways Act, no one other than a dependent is entitled to claim the amount either by filing a petition or by seeking execution of an order passed in favour of a dependent. 8. We deem it necessary to have a survey of all the relevant provisions in Chapter-XIII to consider the crucial questions. Section-123 is the Section defining expressions. It will be appropriate for us to refer to 123(b) which defines a dependent. 123 - In this chapter unless the context otherwise requires.- (b) “dependent” means any of the following relatives of a deceased passenger, namely:- (i) the wife, husband, son and daughter, and in case the deceased passenger is unmarried or is a minor, his parent; (ii) the parent, minor brother or unmarried sister, widowed sister, widowed daughter-in-law and a minor child of a pre-deceased son, if dependent wholly or partly on the deceased passenger; (iii) a minor child of a pre-deceased daughter, if wholly dependent on the deceased passenger; (iv) the paternal grandparent wholly dependent on the deceased passenger.” (emphasis supplied) 9. We must notice two things straightaway. The definition is to apply “unless the context otherwise requires”. We must immediately note that the legal MFA No.192 of 2010 5 heirs/legal representatives of a deceased passenger are not dependents for the purpose of Section 123(b). Only the persons specified in clauses-1 to 4 of Section 123(b) can be reckoned as dependents. We emphasise that all legal heirs/legal representatives are not specified to be dependents. 10. Section-124 may not be vitally relevant, but in as much as contentions are advanced to bring to our notice the distinction between Sections 124 and 124A, we deem it appropriate to extract Sections 124 and 124A. They read as follows: 124. Extent of liability.- When in the course of working a railway, an accident occurs, being either 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, 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 has suffered a loss 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 a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger MFA No.192 of 2010 6 and accompanying him in his compartment or on the train, sustained as a result of such accident. Explanation.- For the purposes of this section “passenger” includes a railway servant on duty.” 124A. 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 dependent 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 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. MFA No.192 of 2010 7 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 travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.” (emphasis supplied) 11. While Section 124 deals with the liability of the railways in respect of the accidents occurring either because of collision of trains or derailment etc., section 124A deals with the compensation payable in respect of untoward incidents. An untoward incident is defined in Section-123(c) which we extract below. 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 MFA No.192 of 2010 8 a train carrying passengers. 12. It may be apposite in this context to note that the language of Section 124 and 124A impose only a liability on the railways to pay compensation. They do not specifically say who all will be entitled to the compensation, though it can clearly be seen that the compensation will be liable to be paid in the event of injury suffered or death incurred in consequence of an accident or untoward act. Liability of the Railways is declared but the beneficiary is not expressly specified. 13. We now come to Section 125 which deals with the manner in which an application is to be made to the Claims Tribunal where the claim is under Section 124 or 124A. We extract below Section 125. 125. Application for compensation.-(1) An application for compensation under Section 124 or Section 124A may be made to the Claims Tribunal- (a) by the person who has sustained the injury or suffered any loss, or (b) by any agent duly authorised by such person in this behalf, or (c) where such person is a minor, by his guardian, or MFA No.192 of 2010 9 (d) where death has resulted from the accident, or the untoward incident by any dependent of the deceased or where such a dependent is a minor, by his guardian. (2) Every application by a dependent for compensation under this section shall be for the benefit of every other dependent.” Section 125 covers applications under Section 124 and 124A. Under Section 125(a), the person who has suffered injury or suffered any loss can stake the claim for compensation. A reading of Section-124 would suggest that compensation can be claimed in respect of loss to property suffered in a railway accident also. Section 125 (d) deals with the claim arising in respect of the death which has resulted from the accident or untoward incident. In such case, the dependent of the deceased or his guardian of the dependent alone are entitled to make the application. 14. A survey of these provisions unmistakably reveals that the claim for compensation can be staked, in the event of death of a passenger only by a dependent and not a mere legal heir/legal representative of such passenger. MFA No.192 of 2010 10 There can be no semblance of doubt on that aspect. 15. The question that arises for consideration is not whether the legal heirs/legal representatives of a victim of an accident or untoward incident can make the application or seek execution. The dispute is only whether the legal heirs of a dependent (which defendant admittedly is entitled to stake the claim under Section 125) is entitled to continue the proceedings or claim the enforcement of an order passed in favour of the deceased dependent. 16. The nature of the liability created by Section 124A appears to be important. The Tribunal in the impugned order understands the liability in a peculiar manner as can be understood from the following observations in paragraph-12. “ 12. It is also necessary to appreciate the nature of Section 124A of the Railways Act. Section 124A is a unique legislation, which has no corresponding or similar law in any other legislation. It is unique not only in India, but even in the world. It was not even the result of judicial evolution. The closest the courts have come, as a result of judicial evolution, to such legislation is the “no fault” liability. Whereas in Section 124A of the Railways Act, the Railway has by its own magnanimity taken on the liability to pay compensation where no fault has to be proved against them. In such a unique law, it is only fair to assume that it cannot be bound by procedure and MFA No.192 of 2010 11 precedent nor should anyone be allowed to recourse to sections of other laws. The Section 124A is in the nature of a rich philanthropist making a declaration to award certain persons from his personal wealth. In such a circumstance, he has the right to give the award to whomsoever he selects and the law cannot force him to give to any other, merely by claiming that there are laws and rules that limit his desire. The Railway Claims Tribunal Act is therefore correct in limiting adjudication in such cases to only the provisions of the Act and not beyond.” The Tribunal understands the payment under Section 124A to be akin to the voluntary charitable act on the part of the Railway in the nature of a Philanthropist making a declaration to award certain persons from his personal wealth. 17. We are afraid that the Tribunal has not correctly appreciated the scope of the statutory liability under Section 124A. It is not as though the railways by an order voluntarily declares that the amount shall be paid to the victims of an untoward incident. Parliament stepped in to enact a law whereunder statutory liability is imposed on the railways. It is quite true that the liability does not depend upon the familiar concept of 'wrong' or 'fault' as understood in the law of Torts. We need only mention that there is an absolute statutory liability which obliges the MFA No.192 of 2010 12 railways to make the payment specified under Section 124A. It has absolutely no incidents of a Philanthropist voluntarily making payments. The Legislature creates an absolutely statutory liability against the railways and in favour of the victims of untoward incidents. The compassion of the Legislature in favour of the weak and the suffering is eloquently declared in the statutory provision. We feel that the Tribunal erred cardinally in assuming that it is a charitable payment of a wealthy Philanthropist. The Tribunal appears to have understood Section-124A akin to a gratuitous or charitable payment. There, perhaps started the error committed by the Tribunal. 18. To us, it appears that Section 124A eloquently expresses the concern of a compassionate State in favour of the victims of accidents involuntarily suffered. Clauses (a) to (e) of the proviso excludes self inflicted injuries, suicidal attempts or injury suffered by the criminal acts of the victim. The Legislative compassion only flows in favour of a person (or his dependent) who has suffered injuries/death on account of involuntary risks to which a MFA No.192 of 2010 13 person in the modern complex society is exposed to. Concern for the weak, compassion for the suffering, and empathy for the misfortunate is the foundation of liability under Section 124A. The railways, which has the monopoly rights to run the railway industry, has been obliged by the State to discharge that compassionate duty. Yes, the foundation of liability is perhaps unknown to the traditional Anglo Saxon law which always searches for fault or guilt on the part of a person before making him liable to pay amounts. But under the modern/socialist jurisprudence the foundation of liability is shifted from fault to suffering and that explains the rationale behind Section 124A. To sum up, we find that Section 124A creates and declares a new absolute statutory liability for the railways in favour of the suffering humanity which has suffered loss/injury on account of user of the railway. The Parliament of the Socialist Republic of India has chosen to enact such a law to alleviate the sufferings of the victims (their dependents) of such untoward incidents. 19. If one were not satisfied with this explanation and should invariably look for guilt or fault, he can locate MFA No.192 of 2010 14 the failure or inability of the railways to prevent or avoid the untoward incident as the foundation of liability, as appropriate technology can certainly help the Railways to prevent even accidental fall from a railway coach. It is not impossible certainly for the railways to prevent or avoid untoward incidents by employment of adequate technology and personnel warranting enormous investment. 20. Having thus understood the nature of the liability/right under Section 124A, the next question to be considered is whether Chapter-XIII is a complete code in itself. Liability is declared under Sections 124 and 124A. Persons who can file applications to claim the amounts are specified under Section 125. We have gone through all the stipulations of Chapter-XIII. We are unable to find anything which can suggest that Chapter-XIII is a complete code in itself which expressly or by specific implication bars the application of all other laws. It is crucial and significant that there is no non-obstante clause in the statutory stipulations to exclude such application of other laws. We are not unmindful of the fact that in Sections 124 and 124A, it is stated that the railways shall MFA No.192 of 2010 15 be liable to make the payment “notwithstanding anything contained in any other law”. To us, it appears that the purpose of that non obstante clause is only to clarify that this payment by the railways will not affect other claims if any available under other laws. Such non-obstante clause cannot obviously lead to the conclusion that other provisions of relevant laws shall not be applicable. 21. The expression 'dependent' is to be understood as defined under Section 123(b) “unless the context otherwise requires” as can be seen from S.123 which starts with the words “In this chapter unless the context otherwise requires”. We shall initially refer to Section 125 (1)(a). An application under Section 125(1)(a) can be made by the person who has sustained the injury or suffered any loss. We have also got to refer to the fact that Section 124 deals with injury suffered or loss of property. In respect of loss of property, we find no reason to assume that the legal heirs/representatives of a deceased passenger will not be entitled to claim compensation. If we were to read Section-125(1)(a) in any constricted or narrow sense, that would mean that MFA No.192 of 2010 16 even if a deceased person has suffered loss of property, his legal heirs cannot stake a claim under Section 125(1)(a). That would certainly be an unjust and absurd constriction. In Section 124, there is no insistence on proof of negligence evidently, because the claim under Section 124 can arise only on account of an accident of collision between the trains and derailment or other accidents. Negligence of the railways is implicit in Section 124 though proof is dispensed. If two trains collide or one gets derailed or other similar accidents take place, negligence is transparently there on the part of the railways and the dispensation of the obligation to prove negligence does not alter the nature of liability. In such a case to say that only the owner of the goods and not his legal heirs/legal representatives will be entitled to claim compensation, would be patently unjust. Therefore, the expression “person who has suffered a loss appearing” in clause-a of S.125(1) will certainly have to include the legal heirs/legal representatives of such deceased person who has suffered loss. 22. Coming to Section 125(1)(d) also, when the dependent of the deceased is given right to claim MFA No.192 of 2010 17 compensation by filing an application, the expression 'dependent' in the context must certainly be held to refer to those who represent the estate of a deceased dependent where death has occurred subsequent to the vesting of the right. To construe otherwise will, according to us, render the provision unjust. 23. In this context, we again note that there is no specific stipulations in chapter-XIII of the Railways Act as to what is to happen when the dependent of a victim of an accident expires. The law is silent on that aspect. Perhaps, more importantly, we must note that there is no specific provision in Chapter-XIII which can lead us to the inference that there would be abatement or extinction of the claims of a dependent on his death. While considering whether the right to claim compensation under Section 124A read with Section 123(b) and 125(d) can lead to the conclusion that only the dependent and not the legal heirs of the deceased dependent would be entitled to claim compensation, it is important that we note that there is no specific statutory stipulation suggesting abatement or extinction of the claim in the event of death of a MFA No.192 of 2010 18 dependent/claimant. The vested rights of a dependent obviously cannot vanish into thin air or disappear merely because death of the dependent takes place. This is all the more so because we do not find any provisions in Chapter- XIII which can suggest that a dependent where the context so requires cannot include the legal heirs of a deceased dependent. 24. We must in this context refer to Section 146 of the Code of Civil Procedure also. Section 146 incorporates a general principle of law and declares as follows: “146: Proceedings by or against representatives - Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.” 25. Under the general law, a legal heir claiming under a dependent is certainly entitled to continue the claim or stake his own claim as a legal representative/person claiming under the dependent. In that view of the matter also, a claim which the dependent can make can be staked or continued by the legal heir/legal representative of a deceased, i.e. one claiming MFA No.192 of 2010 19 under the deceased dependent. 26. We may note that while under the general law all legal heirs/legal representatives may be entitled to make an application or continue the application in the light of the declaration under Section 146, so far as a claim under Section 124A is concerned, not all the legal heirs of the deceased victim, but only the dependents can stake the claim. Section 146 CPC incorporates the principle that where a dependent can make an application, his legal heirs can also make the application. 27. We have gone through all the statutory stipulations in chapter-XIII. We are unable to find any specific provision or any necessary implication which can suggest that what can be claimed by a dependent cannot be claimed (or his claim cannot be continued) by the legal representatives of a dependent. We conclude by holding that the expression 'dependent' in Section 125(1)(d) must necessarily include the legal representative of the estate of the deceased dependent, if such dependent prior to his death is entitled to make such an application. 28. Similar questions appear to have arisen for MFA No.192 of 2010 20 consideration earlier and binding precedents must guide us, we feel. Our attention has been drawn to a decision in Union of India