1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD First Appeal No. 1243 of 2005 Shaikh Musa Shaikh Allabaksh (Died), Through L.Rs. : (1) Saheen w/o Sk. Musa, Aged 35 years, Occupation Household, Resident of Sathe Nagar, Kinwat, District Nanded. (2) Arbaz s/o Sk. Musa, Aged 13 years, Occupation Nil, (3) Yasmeen d/o Sk. Musa, Aged 11 years, Occupation Nil, (4) Samina d/o Sk. Musa, Aged 8 years, Occupation Nil, Applicants No. 2 to 4 are minors, under guardianship of natural mother Saheen w/o Sk. Musa, Aged 35 years, Occupation Household, Resident of as above. Applicant V E R S U S Union of India, Through General Manager, South Central Railway, Resident of Secunderabad Respondent Mr. P.S. Agrawal, Advocate for the appellants Mr. M.N. Navandar, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 30th July, 2010 ORAL JUDGMENT : 1. This appeal is filed against the Judgment and Award passed by the Members of the Railway Claims Tribunal, Nagpur Bench, in Claim Petition No. 115 of 2003. The original Appellant Sk. Musa had moved 2 the application seeking compensation from the respondent/railway administration on account of his accidental fall from a running train and having sustained permanent disablement of loss of both the legs. During pendency of this appeal, original appellant Sk. Musa died and his legal representatives are on record now. 2. The case of the original appellant was that on 20th March, 2003, at 01.00 pm., he bought two tickets at Kinwat Railway Station to go to Nanded. He and his wife then boarded a train to go towards Mudkhed. They reached Mudkhed at about 05.00 pm. They got down from the train to catch another train to go to Nanded. At about 07.00 pm. they boarded another train, which is called "Push Pull Train" between Mudkhed and Nanded. The original appellant and his wife stood near the door way of a compartment due to heavy rush in the train, and due to sudden jerk of the train, the appellant fell down from the moving train and sustained injuries to his legs. During the treatment, both his legs were amputated. 3. The railway administration opposed the application, and in view of the pleadings of the parties, two issues arose before the Claims Tribunal; first was, whether the appellant had sustained injuries in an untoward incident under Section 123 (c) of the Railways Act, 1989? and second; whether the appellant was a bonafide passenger of the train? 4. Point No. 2 : The appellant and his wife, both recorded their depositions before the Tribunal stating categorically that they arrived at Kinwat Railway Station at about 01.00 pm. and bought tickets to go to Nanded. However, during cross-examination, the wife of the appellant admitted that the tickets were bought at 07.00 pm. on that day. This discrepancy led the learned Members to conclude that in view of the contradiction, the evidence of the appellant and his witness should be totally discarded. I am afraid, the approach of the learned Members in appreciation of the evidence on record is rather 3 pedantic. What is required to be seen is the gist and purport of the evidence that has come on record. As said above, both these witnesses categorically stated that they left Kinwat at 01.00 pm., and before leaving, the appellant bought two tickets for Nanded. The wife of the appellant even stated that she herself witnessed the events of buying of the tickets In view of this categorical statement, there could not have been admission on the part of the witness that the tickets were bought at 07.00 pm. This admission, it appears has crept in cross-examination due to either inadvertence of the recorder of the evidence or due to sheer naivety of the witness. This contradiction cannot be blown out of proportion and cannot be used to destroy the otherwise believable and trustworthy evidence of the appellant. It is common knowledge that the distance between Kinwat and Nanded is quite substantial and one has to travel for at least three to four hours in a passenger train. For such a long journey, the appellant and his wife, a family, would certainly buy requisite tickets for such travel. In other words, the distance between the two stations was not trivial one so that it would tempt a traveler to travel without ticket for a few minutes. 5. Point No. 1 : The learned Members of the Claims Tribunal held that the case of the accidental fall of the original appellant would fall within the mischief of Exception of clause (b) of Section 124 (a) of the Railways Act. They opined that the appellant should not have stood in the door way of the compartment after the train had started moving. They further opined that the act of standing in the door way of the train was negligence and the injury was self inflicted one. 6. On facts, I would not accept the argument of the respondent that the appellant was negligent when he chose to stand in the door way of a running train. It has come in the evidence that the train was crowded and that compelled the appellant to accommodate himself in the door way of the compartment. It is common knowledge that 4 though the Railways mention on each railway compartment its passenger carrying capacity boldly written on the compartment, the crowd of passengers defy such instructions and enter compartments almost sitting on each others heads. Obviously, the Railway administration has no machinery to prevent over crowding of the trains. Thus the Railway administration tacitly allowed its passengers to take risk of standing in the door ways and even cling to handles and bars of the windows and doors while traveling in crowded train. Having regards to this reality, it can not be said that the appellant on his own volition chose to stand in the door way of the compartment. Like many other passengers, he took a risk of standing there. He depended on his physical strength to hold on to the bar of the door, till the train stops on a station where he would be able to take some rest and respite. So, if during the interval in which his physical strength gave away or failed him, his falling down from the running train would amount to an accident. It can not be said that he intended to get himself hurt by standing in the door way because there was risk of falling down. Thus the case would certainly fall within the definition of 'untoward incident', not affected by proviso (b) to Section 124-A. The appellant should therefore, succeed in proving that he had sustained injury in untoward incident and that the Railway administration was liable to pay him compensation. But the learned Members of the Railway Claims Tribunal in the impugned judgment as said above held, that since the appellant negligently stood in the door way of the compartment of a running train, it was an act of negligence on his part and so they held that resultant injury suffered by appellant was self-inflicted injury. 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. 7. In order to appreciate the rival submissions on this point, one 5 has to read the relevant provisions of the Act. Chapter XIII of the Act is relating to 'liability of Railway Administration for death and injury to passengers due to accidents'. Section 123 (c) defines term “untoward incident”, as under : “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 attach 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.” 8. The appellant made this claim under Section 124 seeking compensation on account of his accidental falling from a train carrying passengers. The above quoted subsection (2) apparently shows that the incident was an untoward incident as defined. But S.124A of the Act provides some exceptions to the principle of strict liability. Section 124A reads as under : 124.A. Compensation on account of untoward incidents. – 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 ccasioned 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: 6 (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- (a) a railway servant on duty : and (b) 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.) 9. It is clear that Chapter XIII of the Railways Act has recognized that a bonafide passenger of Railway administration is likely to get injured, killed etc. in an accident or due to an untoward incident. Section 124A specifically provides as to when the Railway administration would be liable to compensate its bonafide passenger who sustains injury or get killed as a result of such untoward incident. The first part of Section 124 clearly lays down the 'rule of strict liability'. Proviso to Section 124-A makes exceptions to the general rule of strict liability in the above quoted cases. 10. 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. In view of this judgment the ratio and majority view expressed by the full bench judgment of the Andhra Pradesh in case of K. Balakrishnaiah(supra) is no more good law. The Supreme Court in this judgment inter alia 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. 7 11. The Supreme Court in this judgment discussed the scope of principle of strict liability which is made 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”. 12. The Supreme Court in this 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”. 13. In Prabhakaran's case, the Supreme Court was dealing with peculiar facts. It was a case where 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 8 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”. 14. In view of this judgment, there is hardly any scope for the respondent to submit that the appellant had sustained self inflicted injuries. 15. The liability of the Railway administration under S.124A 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. Schedule annexed to the rules provides that for a loss of hand and foot, the amount of compensation would come to Rs.4,00,000/-. This amount thus, is payable to the appellants. 16. 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 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 9 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 along with 6% p.a. 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.] srm/fa/1243/05/ok