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2008 DIGILAW 57 (AP)

UNION OF INDIA v. M. Siva Parvati

2008-01-30

GHULAM MOHAMMED

body2008
JUDGMENT B.SESHASAYANA REDDY, J 1. This Civil Miscellaneous Appeal is directed against the judgment dated 16- 9-2003 passed in O.A.A.No.246 of 1999 on the file of Railway Claims Tribunal, Secunderabad, whereby and where under the application of R1 to R3 filed under section 16 r/w 124(A) and 125 of the Indian Railways Act, 1989 came to be allowed granting compensation of Rs.4.00 lakhs. 2. Background facts of the case in a nutshell leading to filing of this appeal by the Union of India represented by General Manager are: One M.Seshagiri along with five others traveled in Pinakini Express from Erode in Tamilnadu to Tenali in Andhra Pradesh. The said train reached Tenali at 2050 hours on 20.10.1998 on platform No.4. Seshagiri while alighting from the train fell down due to the jerk of the train before coming to complete halt. He sustained injuries and co-passengers shifted him to the Government Hospital, Tenali where he succumbed to injuries on the same day. His wife and two children filed O.A.A.No.246 of 1999 before the Railway Claims Tribunal, Secunderabad claiming compensation of Rs.4.00 lakhs. Parents of Seshagiri did not join in the petition as petitioners and therefore they came to be impleaded as R2 and R3 in the O.A.A. 3. The appellant herein who is 1st respondent in the O.A.A. filed counter resisting the claim of the applicants. It is the plea of the appellant that no incident as projected by the applicants had taken place on 20.10.1998 at 2050 hours. A further plea of the appellant is that the incident alleged cannot be categorized as an untoward incident and therefore the applicants are not entitled for any compensation. The Tribunal framed the following issues: i) Whether the applicants and respondent Nos.2 and 3 are dependents of the deceased Munagala Seshagiri? ii) Whether the deceased was a bonafide passenger on his onward journey by train No.2712 Pinakini Express, Travelling from Chennai to Tenali on 20.10.98? iii) Whether the deceased died as a result of an untoward incident of accidental fall from the said train at Tenali Railway Station as alleged? iv) To what relief? 4. The first applicant filed her affidavit in support of the application and got marked 7 documents as Exs.A1 to A7. On behalf of the appellant, affidavit of P.Annayya, Deputy Superintendent of Police, Tenali was placed on record. iv) To what relief? 4. The first applicant filed her affidavit in support of the application and got marked 7 documents as Exs.A1 to A7. On behalf of the appellant, affidavit of P.Annayya, Deputy Superintendent of Police, Tenali was placed on record. Co- passenger was examined as RW.3 on behalf of the parents of the deceased who have been shown as R4 and R5 in the appeal. 5. The learned Tribunal on considering the material brought on record and on hearing learned counsel for the parties, came to the conclusion that the death of Seshagiri is an untoward incident and thereby the applicants as well as R2 and R3 therein are entitled to claim a compensation of Rs.4.00 lakhs which has been apportioned as follows: 1st applicant Rs.1,50,000 2nd and 3rd applicants Rs.1,00,000 each R2 and R3 Rs. 25,000 each Accordingly, the O.A.A. came to be allowed by a judgment dated 16.9.2003. The said judgment is under challenge in this appeal. 6. Heard learned counsel appearing for the appellant and the learned counsel appearing for the respondents. 7. Learned counsel appearing for the appellant submits that the Tribunal has not followed the procedure in recording the evidence and therefore the order assailed in the appeal is liable to be set aside. He would also contend that mere marking of FIR and inquest report do not constitute proving of the contents therein. A further contention has been advanced that the deceased attempted to alight from the train before coming to halt on the plot form and thereby he fell down which amounts to self inflicted injury and in which case the railway is not liable to pay any compensation under the proviso to Section 124(A) of the Indian Railways Act, 1989. In support of his submissions, reliance has been placed on the decision of Supreme Court in UNION OF INDIA v. SUNIL KUMAR GHOSH1 wherein the Supreme Court held that jolt to the bogie which is detached from one train and attached to another cannot be termed as an accident. Paragraphs 12 and 13 of the judgment read as follows: " ( 12 ) WHAT is the position when a passenger falls down from the train while the bogie, in which he is travelling, is being shunted'? Paragraphs 12 and 13 of the judgment read as follows: " ( 12 ) WHAT is the position when a passenger falls down from the train while the bogie, in which he is travelling, is being shunted'? Say, when he is standing in the door frame or is trying to get in or get out of the train, on account of the jolt to the bogie at the time of impact with the rest of the train? Is it an accident 'to the train' so as to attract the liability under section 82a? The answer substantially depends on the answer to the question : what is an 'accident'? An accident is an occurrence or an event which is unforeseen and startles one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words an event or occurrence the happening of which is ordinarily expected in the normal course by almost every one undertaking a rail journey cannot be called an 'accident'. But the happening of something which is not inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident. Now a collision of two trains or derailment of a train or blowing up of a train is something which no one ordinarily expects in the course of a journey. That is why it falls within the parameters of the definition of accident. But a jolt to the bogie which is detached from one train and attached to another cannot be termed as an accident. No shunting can take place without such a jerk or an impact at least when it is attached or annexed to a train by a shunting engine. If a passenger tumbles inside the compartment or tumbles out of the compartment when he is getting inside the compartment, or stepping out of the compartment, it cannot be said that an accident has occurred to the train or a part of the train. It is doubtless an accident the the passenger'. But not to the train. If a passenger tumbles inside the compartment or tumbles out of the compartment when he is getting inside the compartment, or stepping out of the compartment, it cannot be said that an accident has occurred to the train or a part of the train. It is doubtless an accident the the passenger'. But not to the train. Otherwise it will have to be held that every time a bogie is detached in the course of shunting operation and attached or annexed to a train in the course of the said operation the train meets with an accident. And if such an event or occurrence is to be ordinarily expected as a part of every day life, it cannot be termed as an accident - accident to the train (or a part of it ). ( 13 ) IN the case of a mishap to the passenger in such circumstances it cannot be said that there has been an accident to the train and the mishap has nexus with it. The liability under Section 82a will not therefore be attracted in such cases. Or in the case of a mishap to a passenger in similar circumstances, such as an injury sustained on account of falling down whilst getting on or off a running or stationary train or sustained when he slips in a compartment or when something falls on him whilst travelling. All such mishaps, when not connected with the accident to the train, or a part of it, would be accidents to the passenger only. And until both the mishaps take place, one to the train, and another, a sympathetic one, to the passenger, the liability under Section 82a of the Act will not be attracted. So also, unless the loss or damage to the property of a passenger is attributable to the accident to the train, liability under Section 82a will not be attracted." 8. Learned counsel appearing for R1 to R3 submits that the evidence of co- passenger who has been examined as RW.3 is crystal clear that the deceased fell down because of the jerk resulting after the brakes applied to the train and therefore it cannot be categorized as self inflicted injury as enumerated in proviso to Section 124(A). Learned counsel appearing for R1 to R3 submits that the evidence of co- passenger who has been examined as RW.3 is crystal clear that the deceased fell down because of the jerk resulting after the brakes applied to the train and therefore it cannot be categorized as self inflicted injury as enumerated in proviso to Section 124(A). In support of his submissions, reliance has been placed on a Division Bench judgment of this Court in GENERAL MANAGER, SOUTH CENTRAL RAILWAY v. K.NARAYANA RAO2 and the judgment of one of us (Ghulam Mohammed,J) in UNION OF INDIA, S.C.RAILWAY V. S.REKHA3. 9. Indisputably the deceased succumbed to the injuries on the date of the incident itself. RW.3 who is a co-passenger has testified that the deceased fell down while alighting from the train because of the jerk. The applicants specifically pleaded in the petition in para 6 of the application that the deceased while alighting from the train fell down because of the sudden jerk of the train. This plea has been proved through the evidence of RW.3. Nothing is suggested to RW.3 by the appellant disputing his testimony with regard to the jerk of the train while the deceased alighting from the train on the plot form. Therefore, the applicants are able to substantiate their plea that the deceased fell down while alighting from the train because of the jerk. Whether it comes under the definition of "untoward incident" is the question. What is an "untoward incident" is no more a res integra in view of the authoritative pronouncement of a Full Bench of this Court in UNION OF INDIA, S.C.R. v. K.BALAKRISHNAIAH4 wherein it has been held as follows: " The expression "untoward incident" in Section 124-A of the Act, which has been defined inter alia, to mean the accidental falling of any passenger from a train carrying passengers (in sub-clause(2) of Clause (c) of Sec.123 of the Act) does not comprehend injury or death occasioned by his negligence, carelessness, wrongful act or prohibited conduct, disregard of the requisite standard of care obligated by a person traveling on a train or any such conduct of a passenger which might reasonably be expected to result in his injury or death, as a resultant injury or death would, in such circumstances, be the consequence of a self inflicted injury." 10. Learned counsel appearing for the appellant by placing reliance on the judgment 1st cited strenuously contends that the jerk of a train before coming to a complete halt is a usual one and therefore it cannot be termed as an "untoward incident". In the judgment 1st cited the point which fell for consideration is whether a jolt to a bogie while detaching from one train and attaching to another train can be termed as an accident. Whereas coming to the facts and circumstances of the case on hand, the question for consideration is whether a jolt of a train after reaching the plot form can be termed as an "untoward incident". The appellant did not adduce any evidence that jolt of the train after reaching the plot form is a usual one. In the absence of such evidence, it cannot be termed that a jolt of a train after reaching the platform is a usual one. 11. The tribunal considered the evidence brought on record in right perspective and came to the conclusion that the deceased sustained injuries in an untoward incident for which he succumbed while undergoing treatment in the hospital. We do not see any flaw in the order passed by the Tribunal warranting interference of this Court in exercise of the powers under section 23 of the Railway Claims Tribunal Act, 1989. 12. Accordingly, this appeal fails and the same is hereby dismissed. In the circumstances of the case no order as to costs.