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2008 DIGILAW 1105 (ALL)

Sudhir Kumar Srivastava v. Union of India (UOI)

2008-05-22

RAJES KUMAR, S.S.CHAUHAN

body2008
JUDGMENT : Rajes Kumar, S.S. Chauhan, JJ. This first appeal from order is directed against the judgment and award dated 24.9.1999, whereby the claim petition of the appellant has been dismissed. 2. The facts, in brief, are that the appellant was travelling on a second class ticket bearing No. Ho. 12001 from Barabanki to Lucknow and when the appellant was trying to alight from the train at Daliganj Railway Station due to a sudden Jerk he slipped and fell down from the train and sustained grievous injuries. One co-worker, namely, Harish Chandra Verma (Munshi) was travelling alongwith the appellant. Harish Chandra Verma (Munshi) gave proper assistance to the appellant by lifting him from underneath the platform. The appellant was made to lie-down on the platform in an injured condition. The information was also given to the railway officials who arranged first aid and ambulance. In the meantime, Harish Chandra Verma (Munshi) returned back alongwith all staff of the appellant's office. Thereafter, the appellant was brought to the Balrampur Hospital by G.R.P. and fellow staff workers. On account of the aforesaid incident, the appellant's both legs and right elbow were badly crushed. The appellant's right leg was amputated twice, i.e., on 22.4.1998 and 18.5.1998 and left leg was operated upon thigh and open reduction and internal fixation of (Lt.) femur with K-nail was placed and lastly open reduction and screw fixation with bone grafting was done on 29.6.1998 in Aliganj Hospital, for which the appellant had to spend huge amount of money. The appellant's right hand was also operated and screw fixation was done. It was stated that the appellant was still under treatment. 3. The Claims Tribunal after considering the evidence of the parties came to the conclusion that the appellant has not made out a case for grant of compensation and thereby dismissed the claim petition by means of order dated 24.9.1999. 4. The learned Counsel for the appellant has submitted that the Tribunal has not appreciated the evidence in a correct perspective and has rather ignored the relevant evidence which was sufficient for allowance of the claim petition. The appellant's case is within the domain of 'untoward incident' and, therefore, the case of Union of India and Ors. v. Sunil Kumar Ghosh 1984 SC 1737, was not applicable and has wrongly been relied upon by the learned Counsel for the respondent. The appellant's case is within the domain of 'untoward incident' and, therefore, the case of Union of India and Ors. v. Sunil Kumar Ghosh 1984 SC 1737, was not applicable and has wrongly been relied upon by the learned Counsel for the respondent. It has also been submitted that the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 (hereinafter referred to as the Rules of 2003) also provide under Rule 7 that proper investigation has to be made by an officer of the force, not below the rank of Inspector, and the said report has to be forwarded under Rule 10(2) to the Divisional Railway Manager and Divisional Security Commissioner of the Force. The Divisional Railway Manager, on receipt of the report, shall examine the same and if he is satisfied that the investigation is complete, he shall pass an order for accepting the said report and if he has reason to believe that some more inquiry is required in the matter, he shall refer the matter back for investigation to the officer of the Force alongwith his observations for further investigation and the office of the Force thereafter, on receipt of said reference, shall examine the matter and submit the report immediately to the Divisional Railway Manager. Final orders on the report by the Divisional Railway Manager shall be communicated to the Station Superintendent, who shall maintain the records and make necessary entries in the station diary to this effect. Rule 13 stipulates that the investigation report alongwith the comments of the Divisional Railway Manager shall be placed before the Claims Tribunal by Railway Administration while filing written statement in the case in which compensation has been claimed on the basis of such untoward incident. In the present case, no such investigation report has been placed before the Claims Tribunal by the Railway Administration while filing written statement. In the present case, no such investigation report has been placed before the Claims Tribunal by the Railway Administration while filing written statement. The submission is that the untoward incident has been interpreted by the Apex Court in the case of Rathi Menon v. Union of India 2001 (2) TAC 250 and the purpose and object, with which the Section 124A of the Railways Act, 1989 (hereinafter referred to as the Act for short) was introduced as per Railway (Amendment) Act, 28 of 1994, was for awarding compensation for untoward incident which occurs in the course of working of railway and prior to it the compensation could have been granted to the victims only in the case of accidents and with this avowed purpose, the Parliament in its wisdom inserted a new category of disasters both manmade and otherwise to be the cause of action for claiming compensation. 5. The further submission is that the Full Bench of the Andhra Pradesh High Court is on different facts and is not applicable to the case of the appellant. In support of his submission, the learned Counsel for the appellant has relied upon (i) Rathi Menon v. Union of India 2001 (2) TAC 250; (ii) Union of India through General Manager, Northern Railway, New Delhi and Anr. v. Smt. Deomani Devi 2007 (3) DMP 419; (iii) Union of India through General Manager, North Central Railway, Allahabad v. Smt. Sarita Urf Shanti Devi 2006 (2) TAC 147; (iv) Union of India v. Smt. Meera Kumari and Ors. 2005 (2) TAC 873 (All); (v) South Central Railway, Secunderabad v. K. Narayana Rao 2005 (2) TAC 410 (AP); (vi) Union of India v. Hemlata Mudoi 2003 (2) TAC 65 (Gau); (vii) Union of India v. Uggina Srinivasa Rao 2001 (2) TAC 501 (AP). 6. The learned Counsel for the Railway has vehemently submitted that the appellant is not entitled to any compensation in view of the fact that he tried to alight from a moving train and, therefore, it was his negligence and carelessness on account of which he sustained injuries and since the accident has taken place on the sheer negligence of the appellant, then in such case the compensation will not be available to him. He has also submitted that untoward incident includes the careless act of the appellant and the appellant should have waited till the train stopped instead of alighting in the moving train. He has also submitted that act of the appellant is covered u/s 154 of the Railways Act which is a criminal act and, therefore, the claim petition has rightly been dismissed. In support of his contention he has placed reliance upon the Union of India v. Smt. Jameela and Ors. 2004 (22) LCD 986 and the Full Bench decision of the Andhra Pradesh High Court in Union of India, South Central Railways, Secunderabad v. Karukundu Bala Krishnaiah, Dhone Kurnool District and Ors. 2004 (2) TAC 130 (AP). 7. We have heard learned Counsel for the parties and gone through the record. 8. Before proceeding to the law in regard to the untoward incident and accidental falling, it would be necessary to dwell upon the facts of the present case. The case set up in the claim petition was that the appellant on the date of journey, i.e., on 22.7.1998 was coming back after attending his officially duty with a valid second class passenger ticket No. Ho. 12001 and boarded on train No. 589, Gonda Passenger Train. When the train entered at the platform of Daliganj Railway Station moving very slowly, the appellant came near the door and in the meantime other passengers also followed the appellant and when the train was about to stop, due to a sudden jerk the appellant slipped and accidentally fell down from the train while he was about to step down. The claim of the appellant has to be considered in the light of the aforesaid facts. The respondent in its written statement has set up a different case and in para 16 of the same it has been stated that the appellant sustained injury due to his own criminal act and negligence as he was stepping down from the train while the train was in motion and was approaching the Daliganj Railway Station. In para 17 also, it has been stated that the appellant was stepping down from the running train and the guard of the train has seen the appellant while the train was approaching Daliganj Railway Station and the appellant was trying to alight from the train. In para 17 also, it has been stated that the appellant was stepping down from the running train and the guard of the train has seen the appellant while the train was approaching Daliganj Railway Station and the appellant was trying to alight from the train. The case set up by the Railway before the Claims Tribunal was that the train had not reached the Daliganj Railway Station but in fact approaching the Daliganj Railway Station. The factum of accident has not been denied. The only question which falls for consideration is as to what is the manner of accident borne out from the evidence on record. The two affidavits have been filed by the Railway, one by Shri G.S. Singh, Guard of the train and the other by Shri Anil Pandey, Assistant Station Master, and in both the affidavits it has been stated that the appellant tried to step down before the destination which was not a destination as per the ticket. The appellant tried to come down from the moving train before the stoppage of the train and fell down while doing so. The case set up in the affidavits of these two officers is in contrast to the case set up in the written statement. Even if the statement made in the affidavits filed by the Railway is taken to be correct, then also in para 4 of the affidavit it has been stated that the appellant tried to come down from the moving train prior to stoppage at platform and he fell down. The guard who is said to have seen the incident was in his compartment and, therefore, is not able to state what were the circumstances and the surroundings, who were the people standing behind the appellant in the coach and how the accident took place, what were the contributory factors in the falling of the appellant, where he tried to alight prior to the stoppage of the train or that he fell down on account of a jerk of the train which suddenly stopped. The veracity of the statement of the appellant is fortified from the fact that he fell down beneath the platform and from there he was lifted by his co-worker Harish Chandra Verma (Munshi) and he was laid on the platform. Immediately the information was given to the Railway. The veracity of the statement of the appellant is fortified from the fact that he fell down beneath the platform and from there he was lifted by his co-worker Harish Chandra Verma (Munshi) and he was laid on the platform. Immediately the information was given to the Railway. Thereafter, the railway staff as well as the police came on the spot, so the factum of accident cannot be denied. The act of the appellant while alighting from the train was of such a nature as to render him ineligible for compensation does not appeal to our reason. The guard could have seen the appellant tried to alight from a-moving train and except that he can have a hazy idea regarding the factum of accident. Who can be the best witness at the time of alighting from the train, certainly it is the co-passengers who are the best witnesses and their statement may be relied upon but the statement of the guard, which stands at variance with the written statement, cannot be a good piece of evidence for denying the compensation to the appellant. 9. Apart from the above, as per the Rules of 2003 the investigation report alongwith the comments of the Divisional Railway Manager was never placed before the Claims Tribunal by the Railway Administration while filing written statement in the case in which compensation has been claimed on the basis of untoward incident. A proper procedure has been provided under Rule 6 of the Rules of 2003, wherein it has been laid down that the Station Superintendent, on receipt of an information about the occurrence of an untoward incident under Rule 3 shall make necessary entries to this effect in the station diary; arrange for medical assistance to the injured passengers ; make out a brief report in respect of spot of the untoward incident and toward copies thereof to the Divisional Office, Zonal Railways, police and in-charge of the Force, carry out technical survey of the untoward incident himself or through his representative; and depute his representative to assist the Force to complete the process of investigation. On receipt of information under Rule 6, an officer of the Force, not below the rank of Inspector, shall carry out the investigation and shall obtain copies of the inquest report, post mortem report and jama talashi report from the police investigating the incident; obtain copy of the technical survey carried out by the railway official nominated by the Station Superintendent; obtain information about the untoward incident in Form-2; record statement of additional witnesses, if so required; collect any other evidence required by the circumstances of the case, and thereafter the officer of the Force, on completion of the investigation, shall submit a report to the authorities specified under Rule 10(2), which provides that the officer of the force shall forward the report prepared under Rule 7(2) to the Divisional Railway Manager and Divisional Security Commissioner of the Force. Rule 11 postulates that the Divisional Railway Manager, on receipt of the report, shall immediately examine the same. On examination, if Divisional Railway Manager is satisfied that the investigation is complete, he shall pass an order accepting the said report but if he believes that some more investigation is required in the matter, he shall refer the matter for reinvestigation to the officer of the Force alongwith his observations for further investigation. The officer of the Force thereafter shall investigate the matter further and submit the report to the Divisional Railway Manager. Final orders passed on the report by the Divisional Railway Manager shall be communicated to the Station Superintendent who shall maintain the records and make necessary entries in the station diary to this effect. It is thereafter that Rule 13 casts an obligation upon the Railway Administration to file a copy of investigation alongwith the comments of the Divisional Railway Manager before the Claims Tribunal. No such report was filed as required by the Rules of 2003 alongwith the written statement by the Railway Administration. In absence of any such report, it cannot be presumed that the respondent has been able to prove its case or has brought to the notice of the Claims Tribunal any cogent evidence which may lead to the conclusion that the incident as alleged by the appellant has not taken place. 10. In absence of any such report, it cannot be presumed that the respondent has been able to prove its case or has brought to the notice of the Claims Tribunal any cogent evidence which may lead to the conclusion that the incident as alleged by the appellant has not taken place. 10. The contention of the learned Counsel for the respondent is that the act of the appellant is not covered within the ambit of the untoward incident but in fact it is the negligence of the appellant which has resulted in the accident and in such category of case the compensation cannot be awarded, cannot be appreciated under law. 11. While considering the question of negligence attributable to the appellant in the light of the averments made in the written statement and the evidence filed before the Claims Tribunal we cannot lose sight of the fact that often the trains are overcrowded and more particularly the general compartments in which public is travelling. There is no measure or scale by which the Railway can control the journey of passengers to a limited number. The compartments are often over-packed with passengers. They hardly find any space to move in the compartments. The coach is full upto the gates, from where a person has to alight on the platform. The passengers while the train gets slow also move towards the gate, so that they may be able to get out of the compartment at the first instance and proceed for their destination. The overcrowded situation of the Railway is also one of such factor which often results in untoward incident. In the present case, as alleged, the appellant came near the door when the train was moving very slowly and when the train was about to stop, due to a sudden jerk the appellant fell down and in such situation the appellant cannot be blamed for any negligence rather it is to be presumed that there was a sudden jerk on account of the defective driving as a result of which the appellant fell down. It is also commonly seen that the passengers in an effort to alight just try to bye-pass the other co-passengers and in such situation some hustle and bustle takes place at the door which can be on account of some pushing from the back. It is also commonly seen that the passengers in an effort to alight just try to bye-pass the other co-passengers and in such situation some hustle and bustle takes place at the door which can be on account of some pushing from the back. On account of it, the appellant may have fallen down but that is not the case set up in the claim petition but with a view to indicate that there can be various situations in which a person can fall down apart from being negligent. 12. The concept of negligence although laid down by the Full Bench of the Andhra Pradesh High Court in Karukundu Bala Krishnaiah (supra) has not found favour by the Apex Court and the Apex Court in Rathi Menon (supra) while considering the merit of amendment in the Act in the form of Section 124A held that the Parliament decided in its wisdom to insert a new category of disasters both manmade and otherwise to be the causes of action for claiming compensation. It was also held that Section 123 consists of two parts. The first part deals with the terrorists acts, riotous attacks, robbery and dacoity with which the passengers in the train as well as those who wait within the precincts of Railway Station are included, whereas in the second part what is relevant part for the purpose of the case is included within "the accidental falling of any passenger from a train carrying passengers." For convenience paras 13 and 14 of the said case are quoted below: 13. Appellants claim for the compensation was based on Section 124A of the Railways Act, 1989 (for short "the Act"). The said section itself was introduced as per Railway (Amendment) Act 28 of 1994. The section provided for awarding compensation to victims of any "untoward incident" which occurs in the course of working of a railway. The expression "untoward incident" was alien to Railways Act before Parliament inserted such an expression in the statute as per the Amendment Act 28 of 1994. Prior to it the Railways could have granted compensation only to the victims of accident. The expression "untoward incident" was alien to Railways Act before Parliament inserted such an expression in the statute as per the Amendment Act 28 of 1994. Prior to it the Railways could have granted compensation only to the victims of accident. As the definition of accident in the Act did not embrace instances of other types of disasters which frequently happened during train journeys, the Parliament in its wisdom, decided to insert a new category of disasters, both manmade and otherwise, to be the causes of action for claiming compensation. 14. It was in compliance of the aforesaid intention of the Parliament that the category "untoward incident" was included by defining its contours in Section 123 of the Act. The sections consists of two segments. In the first segment acts such as terrorists acts, riotous attacks, robbery and decoity which visit the passengers in the train as well as those who wait within the precincts of Railway Station are included. In the second segment, which is the relevant part for the purpose of this case, is included "the accidental falling of any passenger from a train carrying passengers". 13. The reliance placed by the learned Counsel for respondent on Sunil Kumar Ghosh (supra) also does not support his argument in view of the fact that after the Judgment of Sunil Kumar Ghosh (supra), the amendment has been incorporated in the Act in 1994. 14. Recently in the case of Civil Appeal No. 6898 of 2002, Union of India v. Prabhakaran Vijaya Kumar and Ors. decided on 5.5.2008, the Apex Court has considered the liability of the Railway in regard to a passenger who was travelling on a second class seasonal ticket and fell down while trying to board the train. Therein the Tribunal disallowed the claim of the claimant but thereafter in appeal the Kerala High Court reversed the award of the Tribunal. The Union of India went before the Apex Court and the Apex Court after considering the entire law in regard to tort and negligence by a detailed judgment held that the case of the deceased was covered within the meaning of the accidental falling of a passenger from train carrying passengers in Section 123(c) of the Act. The relevant portion of the said judgment is quoted as under: 14. The relevant portion of the said judgment is quoted as under: 14. 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. 16. The accident in which Smt. Abja died is clearly not covered by the proviso to Section 124A. The accident did not occur because of any of the reasons mentioned in Clauses (a) to (e) of the proviso to Section 124A. Hence, in our opinion, the present case is clearly covered by the main body of Section 124A of the Railways Act, and not its proviso. 17. Section 124A lays down strict liability or no-fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124A it is wholly irrelevant as to who was at fault. 49. However, apart from the principle of strict liability in Section 124A 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 Constitution Bench decision of this Court in M.C. Mehta's case (supra). In our opinion, we have to develop new principles for fixing liability in cases like the present one. 15. In the present case, the appellant was alighting from the train and in that course he fell down from the train. Therefore, the appellant would also be entitled for the compensation. 16. In our opinion, we have to develop new principles for fixing liability in cases like the present one. 15. In the present case, the appellant was alighting from the train and in that course he fell down from the train. Therefore, the appellant would also be entitled for the compensation. 16. The decision of the Full Bench which has been strongly recommended is also not applicable in the facts of the case in view of the fact that the reference in the Full Bench was in the following form: Whether a passenger trying to board or alight from a running train or standing near the door, jumped from the' compartment, crossing the railway track or leaning out of the carriage; and during the course of such circumstance had fallen down and was either injured or had died, was entitled to compensation from the Railways u/s 124A of the Railways Act, 1989, (the Act) is the question that in substance arises for consideration in this reference. Incidentally whether wrongful, careless, imprudent or negligent conduct of a person in any of the places within the precincts of a Railway station (as enumerated and defined in Section 123(c) of the Act] would entitle him to compensation, also falls for consideration. 17. The reference itself goes to show that any person alighting from a running train or standing near the door, jumped from the compartment, crossing the railway track or leaning out of the carriage ; and during the course of such circumstance has fallen down and was injured or had died was entitled for compensation or not. The facts in the Full Bench decision were altogether different and does not come to the rescue of the learned Counsel for the respondent to support his argument. 18. The learned Counsel for the appellant apart from relying upon Rathi Menon (supra) has also relied upon Smt. Deomani Devi (supra), in which the deceased was injured due to fall from passenger train but in absence of any evidence to the effect that the deceased committed suicide or died of his own criminal act or was in the state of intoxication, the Division Bench of this Court held that the compensation was inevitably liable to be paid to the deceased. The case of Sunil Kumar Ghosh (supra) was also considered in the aforesaid decision. 19. The case of Sunil Kumar Ghosh (supra) was also considered in the aforesaid decision. 19. The learned Counsel for the appellant has also relied upon Smt. Sarita Urf Shanti Devi (supra), where also the claimant who fell down from the train and sustained injuries due to heavy rush in overcrowded coach was also awarded compensation. 20. Then again, a Division Bench of this Court in Smt. Meera Kumari (supra) considered a catena of cases, namely, N. Parameswaran Pillai and Another Vs. Union of India (UOI) and Another, (2002) 4 SCC 306 ; Union of India v. Smt. Kulko Bai 2002 (2) TAC 26 (MP); Union of India v. B. Koddekar and Ors. 2003 (2) TAC 302 (AP); Union of India v. Uggina Srinivasa Rao 2001 (2) TAC 501 (AP); Union of India v. Hemlata Mudoi 2003 (2) TAC 65 (Gau.); Prabodh Chand Tyagi and Anr. v. Delhi Transport Corporation and Anr. 2003 (2) TAC 68 (Del); Raj Kumari and Another Vs. Union of India (UOI), (1993) ACJ 846, and thereafter came to the conclusion that a person who was having a second class monthly ticket and fell down from the train was held to be a bona fide passenger. It was further held that incidences mentioned in proviso to Section 124A of the Act being exception to the general rule for payment of compensation for the death, the burden lies on the Railways to prove any of these circumstances, which may fall within the exceptions. 21. The learned Counsel for the appellant has also placed reliance upon Hemlata Mudoi (supra), wherein identical facts were there that the deceased was working as an A.S.M. and when he was travelling by Inter City Express from Gauhati Junction to Jagiroad Railway Station, due to heavy rush in the train the deceased fell down from the train at the Digaru Railway Station as a result of which he died. The Division Bench of the Gauhati High Court came to the conclusion that the Railway has not led any evidence to bring the case within the proviso to Section 124A of the Act and once it was found that the death occurred on account of untoward incident, the claimants were entitled for the compensation. 22. The Division Bench of the Gauhati High Court came to the conclusion that the Railway has not led any evidence to bring the case within the proviso to Section 124A of the Act and once it was found that the death occurred on account of untoward incident, the claimants were entitled for the compensation. 22. In Uggina Srinivasa Rao (supra) also the Andhra Pradesh High Court while considering the question that the deceased who met with an accident while boarding on running train does not come under the expression untoward incident, answered the same in negative and held that accidental fall from any part of the compartment is covered by untoward incident. 23. The same view has been taken in K. Narayana Rao (supra), wherein also the deceased while getting down was crushed in between the train and platform, resulting in her instantaneous death. The Court held that the person concerned was entitled for compensation. The Court held that in absence of evidence regarding negligence, the compensation could not be denied to the claimant. 24. Considering the above gamut of cases and the law laid down therein, it is clear that for covering a case within the exceptional clause the Railway has to lead evidence to prove its case. In the present case, the Railway has not been able to prove its case rather the stand taken in the written statement and in the affidavits is at variance and it has not been stated in the written statement or in the affidavits that the appellant tried to alight from the moving train on the platform but rather a case has been set up that the appellant tried to get down prior to the train reaching the platform. The case of the appellant does not fall within the exceptional clause as contemplated u/s 124A of the Act but in fact as ruled by the Apex Court in Rathi Menon (supra) it is an accidental falling of a person from a train carrying passengers. There can be various situations where the passenger may fall down and negligence may not be on his part and neither any negligence can be attributed to him. 25. The appellant has placed on record the certificate issued by the Chief Medical Officer, Faizabad which certifies that he has become physically handicapped permanently. The certificate issued by Dr. There can be various situations where the passenger may fall down and negligence may not be on his part and neither any negligence can be attributed to him. 25. The appellant has placed on record the certificate issued by the Chief Medical Officer, Faizabad which certifies that he has become physically handicapped permanently. The certificate issued by Dr. N.N. Tripathi, Orthopaedic Surgeon, Balrampur Hospital, Lucknow also indicates that the appellant's right leg was ampulated above knee, apart from his (Lt.) thigh being operated upon and open reduction and internal fixation of (Lt.) Femur with K-nail being done alongwith bone grafting and lastly open reduction and screw fixation with bone grafting done on 29.6.1998 outside the hospital premises. The nature of the injuries suffered by the appellant leads to the conclusion that there was fracture of major bone in the (Lt.) thigh with open reduction and internal fixation of (Lt.) Femur and K-nail. Therefore, the appellant is entitled for compensation of Rs. 2,40,000 under the Schedule, Part-III. Item No. 19 as his right leg has been amputated above knee and for fracture of major bone in (Lt.) thigh the appellant is also entitled for compensation to the extent of Rs. 40,000 under the Item No. 33. That apart, the appellant is also entitled to interest @ 7% from the date of application. 26. The appeal is accordingly allowed and the order of Railway Claims Tribunal dated 24.9.1999 is set aside. 27. There shall be no order as to costs.