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2013 DIGILAW 3967 (MAD)

Annapoorani v. Union of India

2013-11-21

S.VIMALA

body2013
JUDGMENT 1. The three issues, that are raised in this appeal, by the Railways are that (i)the claimant did not prove that the deceased was a bona fide passenger in the train and therefore, the railway administration is not liable to pay compensation; (ii) the first claimant's husband / deceased met with an accident only on account of his own negligence and not on account of any negligence on the part of the Railways; and (iii) when the Statute do not provide for payment of interest, the claimants are not entitled to ask for interest. 2. It is the contention of railways that the deceased was not a bona fide passenger in the train and that even assuming that he was a passenger, he fell down on account of his own negligence and therefore, the railway administration is not liable to pay the compensation. 3. The contention of the learned counsel for the Railways is that the claimant has not proved that he was a bona fide passenger, as the ticket itself has not been produced and therefore, the basic requirement, regarding his status as bona fide passenger, is not proved. Therefore, the Railway is not responsible to satisfy the claim. 3.1. In the claim petition itself, the Claimants have furnished the ticket Number of the deceased. So far as the method followed by Railways is concerned, they do not maintain the name of the passengers, who travel with that particular ticket, unless the ticket had been issued towards a reserved category. Therefore, whether the claimant has been the passenger or not has to be decided, only having regard to the attendant circumstances available. 3.2. Learned counsel for the Railways pointed out that the Police was able to retrieve the ticket neither during post mortem, after searching the body, nor it was produced at a later point of time; and therefore, it was a case of ticket-less travel and therefore, the claim should not be considered. 3.3. On the other hand, the learned counsel for the claimant relied upon the following two decisions:- (i) AIR 2004 Karnataka 215 (Leelavathammka v. Union of India), where-under it was held that the rejection of claim on the ground of non production of ticket was held to be unjustified. 3.3. On the other hand, the learned counsel for the claimant relied upon the following two decisions:- (i) AIR 2004 Karnataka 215 (Leelavathammka v. Union of India), where-under it was held that the rejection of claim on the ground of non production of ticket was held to be unjustified. In paragraph 7 of the judgment, it has been observed that the loss of train ticket in the course of its recovery from the site, transportation and post morterm and other procedure can well be explained and understood; in the totality of the circumstances, we have no hesitation in holding that the deceased was travelling as a bona fide passenger on the Bhadravathi-Bangalore train on the fateful night.”. 3.4. From the dictum laid down in the above case, this Court has no hesitation to come to the conclusion that the deceased, in the case on hand, is a bona fide passenger and the contention of the Railways that he cannot be considered to be a bona fide passenger cannot be accepted. 4. The next important issue to be considered is whether on proof of negligence on the part of the deceased, the claimants would be dis-entitled to make a claim under Railway Claims Tribunal Act. In other words, the issue to be considered is, whether the Railways are absolved from the liability to pay the compensation under Section 124-A of the Railways Act, 1989 for the accidental death of a bonafidy passenger by attributing negligence upon him. 4.1. This issue has been directly answered by the decision of the Supreme Court reported in (2011) 4 MLJ 724 (SC) (Jameela and Others v. Union of India). The trend of the decision is that, what is to be proved by the claimant is that the death is not covered under any of the exception to Section 124-A; it has been held that the liability of the Railways to pay compensation under Section 124-A of The Railways Act, 1989, is regardless of any wrongful act, neglect or default on the part of the Railway Administration; the relevant observations are thus:- “7. It is not denied by the Railway that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a “passenger” for the purpose of section 124A as clarified by the Explanation. It is not denied by the Railway that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a “passenger” for the purpose of section 124A as clarified by the Explanation. It is now to be seen, that under section 124A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. But the proviso to the section says that the railway administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in clauses (a) to (e). 8. Coming back to the case in hand, it is not the case of the Railway that the death of M. Hafeez was a case of suicide or a result of self-inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental.” 4.2. Therefore from the decision, cited supra, it is clear that the proof of negligence is not a sine qua non and it has been proved by the claimant that the death is not covered under any of the exception to Section 124-A of the Railways Act and therefore, the liability of the Railway would remain there, provided it is proved that the deceased was a bona fide passenger in the Railways. 5. What is the quantum of compensation that could be awarded to the claimants is yet another issue. 5.1. According to the learned counsel for the Railways, it is only Rs.2,00,000/- as claimed in the claim petition. 5.2. On the other hand, the learned counsel for the claimants submitted that it is the rate, as existed on the date of final decision that has to be taken into consideration and not the rate available, as on the date of the accident. 5.3. 5.2. On the other hand, the learned counsel for the claimants submitted that it is the rate, as existed on the date of final decision that has to be taken into consideration and not the rate available, as on the date of the accident. 5.3. This contention of the learned counsel for the appellants / claimants is directly supported by the decision reported in AIR 2005 Kerala 33 (cited supra), where-under it has been held that the compensation on account of untoward incident is payable at the rate as existing on the date of final decision. Therefore, the amount of compensation payable would be the rate as applicable on the date of final decision. Going by that decision and as provided under The Railway Accident and Untoward Incident (Compensation) Rules 1990, as amended on 25.10.1997 (w.e.f. 01.11.1997), the compensation payable would be Rs.4,00,000/- in respect of the claim made by the claimants. 6. The next issue to be decided is with reference to the interest. 6.1. It is the contention of the learned counsel for the Railways that neither the Railway Claims Tribunal Act, 1987 nor The Railways Act, 1989, make provisions for payment of interest or on any award made and therefore, the Claimants are not entitled to any interest. 6.2. On the other hand, relying upon the decision reported in AIR 2009 Supreme Court 3098 (Thazhathe Purayil Sarabi v. Union of India) the learned counsel for the claimants contends that, even in the absence of Statutory provisions, the power of the Court to grant interest can be taken into account, either by invoking Section 34 CPC or under any other provisions of relevant enactment. “15. As indicated hereinbefore, apart from the provisions of the Interest Act, Section 34 of the Civil Procedure Code also empowers the Court to order interest on a decree for payment of money in the following manner : "34. “15. As indicated hereinbefore, apart from the provisions of the Interest Act, Section 34 of the Civil Procedure Code also empowers the Court to order interest on a decree for payment of money in the following manner : "34. Interest.-(1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent, per annum as the Court deems reasonable on such principal sum from] the date of the decree to the date of payment, or to such earlier date as the Court thinks fit: [Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions. Explanation I.-In this sub-section, "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970 (5 of 1970). Explanation II.-For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.] (2) Where such a decree is silent with respect to the payment of further interest [on such principal sum] from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie".” 6.3. On the grounds discussed above, the dismissal of the claim petition by the Railways is unjustified and therefore, the order of the dismissal is set-aside. The Railway Administration / respondent is liable to pay the compensation of Rs.4,00,000/-, along with interest at 6% per annum from the date of petition to till the date of deposit. 6.4. On the grounds discussed above, the dismissal of the claim petition by the Railways is unjustified and therefore, the order of the dismissal is set-aside. The Railway Administration / respondent is liable to pay the compensation of Rs.4,00,000/-, along with interest at 6% per annum from the date of petition to till the date of deposit. 6.4. Registry is directed to carry out the amendment consequential to the orders passed in CMP.Nos.710 to 712 of 2012 before issuing order copy. 7. In the result, this Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, the connected CMP No.286 of 2012 is also allowed. C.M.A.No.758 of 2000 & C.M.P. Nos.286 of 2012 & 710 to 712 of 2012 S. VIMALA, J. 1. CMP.No.711 of 2012 has been filed to bring on record the 7th appellant Mathialagan as legal representative of deceased 4th appellant Selvi Parvathi along with the prayer to set aside the abatement. 2. The 4th appellant died on 26.08.2004 leaving behind her husband (7th appellant) as the sole legal heir. The amount payable to the 4th appellant would go to the benefit of the 7th appellant. 3. This petition has been filed along with the petition in CMP.No.710 of 2012 to condone the delay of 2752 days in filing the application to set aside the abatement. 4. CMP.No.712 of 2012 has been filed to treat the appellant 2 to 6 as legal heir of deceased first appellant. 5. There are no objections to allow those applications and all the applications are allowed.