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2012 DIGILAW 168 (ORI)

SUNANDA BEHERA v. UNION OF INDIA

2012-03-27

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT : V. Gopala Gowda, J. This writ petition is filed by the widow wife on her behalf and on behalf of two minor children of the deceased who died on account of the railway accident praying for issuance of a writ of mandamus to the Opp. parties to pay a compensation of Rs. 4,00,000/- with a further direction to provide her a Class-IV/ Group-D job in the Railway. 2. Brief facts as have been narrated in the writ petition are stated below with a view to find out as to whether the petitioners are entitled to the reliefs as prayed for and to appreciate the legal contentions raised. 3. The case of petitioner No.1 who has represented her two minor children that her husband was a regular employee of Berhampur Municipality working as Sweeper since 17- 11-1984. It is stated that there is an unmanned level crossing on the road from Komapalli to Lanjipalli. 4. On 24-3-2002, while the deceased was crossing the said level crossing on foot, the train bearing No. 7479 (Howrah-Tirupati Express) ran over him causing sudden death of the deceased. Certified copy of the F.I.R., the letter of intimation given by the Railway Station Superintendent to the G.R.P., Inquest Report, the Dead Body Challan Report, the Post-Mortem Report and the Final Investigation Report submitted by the G. R. P., Berhampur, are annexed as Annexures-4 series and copy of the Death Certificate is annexed hereto Annexure-5. 5. It is stated that the death of the deceased was caused due to utter negligence of the Railway authorities as they never realised the necessity nor did they take any steps for making provisions of proper safety measures at least to the minimum required when the railway track crosses a public road, particularly in such a densely populated locality at the spot in question, where considerable flow of traffic is quite expected. In fact, even after occurrence of several such accidents in the past at the same unmanned level crossing loss of precious lives of many persons, the Railway Authorities did not care to take any preventive measures to avoid further accidents by putting suitable chains, bars, etc. as envisaged under Section 18 of the Railways Act, 1989. In fact, even after occurrence of several such accidents in the past at the same unmanned level crossing loss of precious lives of many persons, the Railway Authorities did not care to take any preventive measures to avoid further accidents by putting suitable chains, bars, etc. as envisaged under Section 18 of the Railways Act, 1989. Subsequent to the accident, in which the deceased was killed, the Railway Authorities have put up a manned post there which ipso facto goes to show that there was deficiency in providing the minimum safety measures and they failed to take serious note of it and had forgotten their sense of responsibilities and allowed the accidents to occur further strengthens the culpable negligence on their part in playing with the lives of the general public, who have their right to pass through the road crossing the Railway tracks. 6. It is stated that, in any case, the deceased lost his valuable life because of the object and culpable negligence on the part of the Railway authorities and the deliberate act on their part in not getting the level-crossing manned by skilled personnel in the interest of the general public, using the road, at the said level crossing/spot or at least put chains, bars etc., as a preliminary precautionary measure as contemplated under the Railway Act. There were several accidents at the very spot prior to the accident causing the death of the deceased on 24-3-2002. It is needless to submit that the road in question crossing the Railway track is a busy traffic road connecting two major sector of the town and frequently used by the general public, especially since for long stretch of time on either side there is no other road to cross the Railway line. The Railway authorities has shockingly allowed situation to persist endangering human lives that led to many accidents at the spot killing/maiming quite a number of persons. For quite long period they kept quite over the issue callously ignoring their duty of manning the said level crossing in spite of consistent and prolonged demands of the public. 7. It is also submitted that the deceased had no contribution in any manner to the accident. For quite long period they kept quite over the issue callously ignoring their duty of manning the said level crossing in spite of consistent and prolonged demands of the public. 7. It is also submitted that the deceased had no contribution in any manner to the accident. Rather while he was using the public road, all of a sudden, the said train came and ran over him, when there was no scope for the deceased to know about the coming of the train. Further more, the Railway authorities are also duty bound to put prominently written boards at reasonable distances on either side of the said level crossing for the passing road users to be aware of the train. Admittedly, no such precautionary measures were taken near the place of occurrence. 8. Further, the deceased who was the only bread winner of the family, died leaving behind the petitioner No.1 and two minor children in distress. It is stated that besides the salary that the deceased was getting from the Municipality, where he was employed, in order to meet the deficiency in maintaining the family, the deceased was keeping him self engaged in off hours, by rendering similar service to private individuals and was also earning about extra Rs. 2,000/- per month. Thus the total income of the deceased was around Rs. 5,213/- if not more per month an owing to his premature death, not only the family left by him has lost the sole bread winner but also became distressed and his wife and children suffered loss of companionship, love, affection, care etc. for ever. 9. It is stated that time and again the petitioners have moved the concerned Railway authorities for compensation, but they have not paid any heed, rather they have been paying deaf ear to the repeated approach and prayer of the petitioners for payment of compensation even without sending a line of intimation about any decision taken in the matter. In fact, initially the authorities at Berhampur Railway Station had given assurance to the petitioners that she would be given due compensation and hence she should not take redress in the legal forum by way of initiation of any judicial, proceeding for payment of compensation, but with lapse of time they dilly dallied and ultimately kept silence advising the petitioners to take up the matter with the Railway authorities at New Delhi/Bhubaneswar. Accordingly, the petitioners sent a representation to the authorities at New Delhi/Bhubaneswar for payment of compensation, but unfortunately all the representations of the petitioners have become cry in the wilderness. Copy of last such representation dated 16-12-2004 is produced as Annexure-6. 10. It is further stated that due to the death of the deceased, the petitioner No.1 and the minor children have suffered from the deprivation of their sole bread winner and guide and also the head of the family even unable to meet both ends. She is unable to arrange even a square meals a day for the family much less to say about their health care and education and thus the future prospects of the children have not only been blocked, rather darkened. 11. Further, it is stated that since the negligence of the Railway authorities has heaped the suffering on the legal heirs of the deceased, they should have to compensate them suitably and adequately. Further, the petitioner No.1 and her husband belong to harizen caste, which is categorized as Scheduled Caste. Since the petitioners do not have any moveable property, their case deserves utmost sympathy and care. 12. Further, it is stated that inaction of the Railway authorities is arbitrary, unjust and against the public interest. The Railway being a wing of the welfare State, the Railway authorities ought not and should not shirk their responsibility of paying the legitimate compensation to the family of the deceased for which the family is very much entitled. By the impugned action the Railway authorities violate the provisions under Articles 14 and 21 of the Constitution of India. On many such occasions, the Railway authorities have paid compensation, but there is discrimination in the case of the petitioners. The Railway authority being State it cannot deny due compensation to the petitioner and her children, who were dependent on the deceased for their sustenance. The Railway authorities should pay the reasonable compensation to them as would be just and proper to maintain their livelihood inasmuch as in view of the constitutional right provided under Article 21 of the Constitution of India and that provided under Article 14 as the Railway authorities have paid in similar such cases to the victims, the distressed family of the victims inasmuch as in the light of the judicial pronouncements of this Court in the cases in OJC Nos. 10205, 9277, 10335 of 1999 and W.P. (C) No. 11490 of 2003, decided on 2-11-2004. Therefore, it is prayed that in the facts and circumstances of the case, the petitioners are entitled to compensation of Rs.4,00,000/- or any amount as deemed just and proper to meet the ends of justice besides a Class-IV job in the Railway, which would save the petitioner No.1 and her children from suffering, to some extent. 13. Despite valid service of notice no counter-statement has been filed on behalf of the Opp. parties. 14. With reference to the aforesaid contentions raised by the learned counsel for the petitioners, the questions that fall for consideration by this Court are as follow: (i) Whether this writ petition is maintainable in law? (ii) Whether the accident occurred on account of negligence on the part of the Railway Administration by not providing sufficient protection at the level crossing and without deploying guard or putting check gate as required under Section 18 of the Railways Act, 1989? (iii) Whether on account of not providing safeguard to the level crossing by the Railway Administration, the petitioners are entitled to compensation as claimed? (iv) What order? 15. Though the Opp. parties have appeared, they have not filed any counter-affidavit. Therefore, the averments made in the writ petition have gone unchallenged. Be that as it may, a similar question as raised in this writ petition came up for consideration before this Court in Laxmipriya Sahoo v. Divisional Railway Manager, East Coast Railway, Khurda and Maheswar Sahoo v. Divisional Manager, East Coast Railway, Khurda (W. P.) (C) Nos. 3324 and 3325 of 2010 disposed of on 2-1-2012 (2012 AAC 1369). This Court in the said cases considering the contentions raised by the Opp. parties and the decision relied on by the petitioners and Opp. parties rejected the contention raised with regard to maintainability of the writ petitioners. This Court further held that under Section 18 of the Railways Act, 1989, the Railway Administration has the statutory obligation to provide sufficient safeguards to the level crossing by putting railway check gate and keeping it closed at the time when train is due to pass at the level crossing area. This Court further held that under Section 18 of the Railways Act, 1989, the Railway Administration has the statutory obligation to provide sufficient safeguards to the level crossing by putting railway check gate and keeping it closed at the time when train is due to pass at the level crossing area. In the instant case, had the Railway Administration taken the precautionary measure either by putting a railway gate and keeping it closed at the time of the train was due to pass, or put up some other obstruction which could prevent the public from passing over the level crossing giving them information and notice of the approaching train, the accident of the kind that had happened in this case could have been avoided. So holding this Court fixed the liability on the Railway for the death of the deceased. As regards the question of compensation, this Court took into consideration the provision under Section 124 of the Railways Act read with Railway Accidents and Untoward Incidents Compensation Rules, 1990 under which no fault liability of the passenger who expires in railway accident has been fixed at Rs. 4.00 lakhs. Having regard to the facts and circumstances of that case, this Court awarded Rs. 4.00 lakhs for the death of the child in the railway accident. 16. The fact situation in the present case is similar to that of the aforesaid disposed of case. Therefore, the ratio decided in the disposed of case is squarely applicable to the instant case. Keeping view Section 124 of the Railways Act read with Railway Accidents and Untoward Incidents Compensation Rules, 1990, the petitioners who are the wife and daughters of the deceased are entitled to the compensation of Rs. 4.00 lakhs and we so direct. The compensation amount shall carry interest at the rate of 6% per annum from the date of filing of the writ application till realization. The Opp. parties are directed to pay the compensation along with interest as directed above within a period four weeks from the date of receipt of this order. B. N. Mahapatra, J.:- I agree.