IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.458 of 2004 KRISHNA KUMAR, SON OF LATE BINDESHWAR SHARMA, RESIDNET OF VILLAGE – BASHWARIYA, P.S. – SADAR BETTIAH, DISTRICT - WEST CHAMPARNA. ….. (APPLICANT No. 2 in the Court below) ………………….. Appellant. Versus 1. UNION OF INDIA through General Manager, N.E. Railway, Gorakhpur (Respondent in the Court below) ………. Respondent – Ist Set. 2. Jitendra Sharma, S/o Late Bindeshwar Sharma. 3. Deepak Sharma, S/o Late Bindeshwar Sharma. All resident of village Bashwariya, P.S. – Bettiah Sadar, District – West Champaran. (Applicant No. 3 & 4 in the Court below) …………. Respondent – 2nd Set. ----------- For the Appellant :- Mr. Pramod Kumar Gayadutta, Advocate. Mr. Abinash Kumar, Advocate. For the Union of Indian :- Mr. Ahsanuddin Amanullah, Advocate. 08/ 03.09.2010 Heard learned counsel for both the parties. This miscellaneous appeal is directed against the order dated 23.04.2004 passed by the Railway Claims Tribunal, Patna Bench in Claim Application No. OA-09800056 by which the claim for compensation of the claimants before the Railway Tribunal for the death of one Bindeshwar Sharma in an untoward incidence has been rejected. The case of the claimant is that the deceased Bindeshwar Sharma while disembarking on 11.11.1997 from Train No. 361 Up passenger slipped from platform to track at 2 Sugauli Station as a result of which he received grievous injury. The railway countered the claim that the deceased was neither a bona fide passenger nor was traveling in alleged train 2 RS passenger and denied the misconduct or negligence on the part of the railways. From the pleadings of the parties four issues were framed which are as follows:- (i) Whether the untoward incident as defined under Section 123(C) took place as alleged? (ii) Whether Bindeshwar Sharma died as result of the said untoward incident? (iii) Whether the deceased was a bona fide passenger? (iv) What amount of compensation, if any, the applicant is entitled? While deciding issue nos. 1 and 2 the Tribunal held that the alleged accident does not come under the untoward incidence and the death of Bindeshwar Sharma does not fall within the scope of „untoward incidence‟ and further held that the allegations made do not come under the definition of untoward incidence and hence petition under Section 124 (A) of the Railways Act, 1989 is not maintainable and the compensation is 3 not payable. However, while deciding issue no. 3 the Tribunal held that the deceased was a bona fide passenger and was holding a valid ticket which was lost in the accident. Learned counsel for the appellant, however, contended that the case of the claimant that the deceased while disembarking from the train, fell down on the platform and then to track as there was rush both in the compartment and platform and further that the platform was not constructed at proper height. Learned counsel for the respondent, however, contended that the appellant fell down from the train when train was in stationary state and the injury of cut was not possible and further challenged that the deceased was not a bona fide passenger. However, the railway has not taken any appeal or filed any cross objection. Learned counsel for the appellant, however, contended that he has mentioned in the counter affidavit and hence the question for consideration whether the accident by which the deceased died come under the definition of „untoward incidence‟ and whether the appellant is entitled for compensation. However, the case of the appellant is that while he was disembarking from the train he fell down and slipped. 4 However, disembarking means to leave a vehicle at the end of the journey and hence he fell down while getting down from the train and got injured and he succumbed to the injury. Learned counsel for the appellant has placed reliance in decision reported in 2008 (4) PLJR (SC) 40 (Union of India Vs. Prabhakaran Vijaya Kumar & Ors.). However, in this case a claim for compensation was made on ground that the deceased fell down on the Railway Track and was run over by the train. However, the evidence adduced by the defendant railway that the victim was running to board the train and the deceased fell down from the train while attempting to board the train and fell down from the running train. The Tribunal disbelieved the prosecution case and believed the case of the railway was that while trying to board the running train deceased fell down and hence the Tribunal held that injury by attempt to board a running train not an untoward incidence as it was not an accidental falling of a passenger from train carrying a passenger. However the Hon‟ble Supreme Court observed that no doubt, it is possible that two interpretations can be given to the expression „accidental falling of a passenger from a train carrying passenger‟, 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 5 includes a situation where a person is trying to board the train and fells 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, held that 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 and hold that even a person trying to board at train also comes within the purview of „untoward incidence‟ and while holding it also held that the number of strict liability or no fault liability are applicable even to the railway and held that even a negligence of the passenger shall not be taken into consideration as there are many activities which are so hazardous that they may constitute a death to a person or property to another and the strict liability states that that undertaker of this possibility have compensation caused by them irrespective of any fault on their fault and hence hled that in the facts and circumstances the deceased attempted to board the train and fell down from the running train plea of no fault or that there was contributory negligence was rejected. Learned counsel for the railway, however, relied upon decision reported in 2004 (22) LCD 986 (Union of India Vs. Smt. 6 Jameela & Ors.) and on the basis that the background he has alleged that since the deceased died out of his own negligence while embarking from the train and hence he is not liable to pay compensation. However, the decision relied upon is against the ratio of the decision reported in 2008 (4) PLJR (supra) at page 40 paragraph 17 “Section 124A lays down strict liability or no fault liability in case of railway accident. Hence, if a case comes within the purview of Section 124 it is wholly irrelevant as to who was at fault”. Hence, negligence of deceased is not required to be seen when it has been held that 124A lays no fault liability and whne the accident does not cover provision (2) 124A. Hence, taking into consideration the facts and circumstances I find and hold that the allegation regarding the death of the deceased due to fall from the train comes under the definition of untoward incidence as mentioned in Section 123 (2) which defines the accidental falling of any passenger from a train carrying passengers. He has clear case that the deceased while getting down from the train fell and got the injury and hence well covered under Section 123 and it is covered under Section 124. Question for consideration is whether it comes under the explanation (ii) to Section 124 (A). However, it can neither be said to have been placed under 124 (A)(a) as is neither suicide nor 7 a self inflicted injury nor his own criminal act and hence is barred under Section 124 and hence I find and hold that the deceased died out of the untoward accident and hence is liable for compensation under Section 124. However, the Tribunal has held that the deceased was bona fide passenger and taken into consideration the evidence and the ticket produced by the co-passenger and further taken into consideration that if he would be ticketless traveler he might have been prevented by the Railway Administration and hence I do not find any reason to disturb the finding of the Tribunal. Hence having regard to the facts and circumstances of the case the deceased was a bona fide passenger and died out of the untoward incidence and hence the claimants are liable to be paid the compensation to the tune of Rs.4,00000/- (four lacs). Hence this miscellaneous appeal is allowed. Kundan (Gopal Prasad, J.)