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2017 DIGILAW 2118 (JHR)

Dharnidhar Sharma v. Union of India

2017-12-08

AMITAV K.GUPTA

body2017
ORDER : 1. This appeal is directed against the judgment/award dated 9.8.2010 of the Hon’ble Member of Railways Claims Tribunal, Ranchi Bench, whereby the claim for compensation has been dismissed. 2. The case of the applicant/appellant is that the deceased Sanjeev Kumar was a bona-fide passenger and was traveling on Train No. 8311 UP, i.e., Ispat Express and he fell down from the train in between Tunia and Goilkera stations. He succumbed to the injuries sustained by him due to the accidental fall. 3. Mr. Rajesh Kumar Jha, learned counsel for the appellant has submitted that the Tribunal has erred in holding that the fatal injuries sustained by the deceased were self-inflicted therefore, the respondent/railway was not liable to pay the compensation since the said injuries come within exception (b) of the proviso of Section 124(A) of the Railways Act, 1989. 4. Learned counsel while assailing the judgment/award, has referred to Ext. A1 of the claim petition filed in the Railway Tribunal, i.e., the memo dated 5.11.2000, issued by the Asst. Station Superintendent, wherein it has been mentioned that the deceased was travelling on a valid ticket. It is submitted that in the inquest report the police has stated that the deceased sustained the injuries as he died due to the injuries sustained when he fell off the running train. That the post-mortem report supports the fact that the deceased had sustained injuries on account of fall from the train (Ext. A3). Learned counsel has placed reliance on the decisions of the Hon'ble Apex Court in the case of Jameela and others v. Union of India, (2010) 12 SCC 443 and Union of India v. Prabhakaran Vijaya Kumar and others, (2008) 9 SCC 527 and argued that in the aforesaid cases it has been held that when the deceased fell down while standing at the open door of the compartment, this would not amount to self-inflicted injuries or an act of criminal negligence. It is canvassed that respondents have failed to bring any evidence on record to establish the fact that the deceased was suffering from any insanity or was in a drunken state or it was an act of suicide to attract the provisions of Exception (a) to (e) of the proviso to Section 124(A) of the Railway Act, 1989. It is canvassed that respondents have failed to bring any evidence on record to establish the fact that the deceased was suffering from any insanity or was in a drunken state or it was an act of suicide to attract the provisions of Exception (a) to (e) of the proviso to Section 124(A) of the Railway Act, 1989. On the above grounds, it is contended that the Tribunal has committed manifest error in law and on fact in rejecting the claim, for compensation. 6. Mr. Vijoy Kumar Sinha, learned counsel for the respondent while supporting the impugned order has contended that the Tribunal has not committed any error in recording its satisfaction that the injuries sustained by the deceased was due to his own negligent act which amounts to self-inflicted injuries. That the case comes within the purview of Exception (b) of the proviso of Section 124(A) of the Railways Act, 1989, therefore, the respondent/railways are not liable to pay the compensation. 7. At this stage learned counsel has contended that the claimants are entitled to compensation in terms of Railways Accident and Untoward Incident (Compensation) Amendment Rules, 2016 whereby, the statutory amount of compensation has been enhanced from Rs. 4,00,000/- (Four Lakhs) to Rs. 8,00,000/- (Eight Lakhs). 8. Learned counsel for the respondent/Railways has countered that the accident took place in the year 2000 and the prayer for grant of enhanced compensation amount of Rs. 8,00,000/- (Eight Lakhs) in terms of Railways Accident and Untoward Incident (Compensation) Amendment Rules, 2016, a fallacious because the amended Rules of 2016 does not stipulate that it shall apply retrospectively. Heard. It is not disputed that the deceased was a bona fide passenger travelling on a valid ticket in Ispat Express. The Tribunal has denied the compensation by placing reliance on the report of Asst. Station Superintendent (Ext. A1). 10. Heard. It is not disputed that the deceased was a bona fide passenger travelling on a valid ticket in Ispat Express. The Tribunal has denied the compensation by placing reliance on the report of Asst. Station Superintendent (Ext. A1). 10. In this context it will be fruitful to refer to the proviso of Section 124(A) of the Railways Act, which stipulates the circumstances whereby the Railways can be exonerated from the liability to pay the statutory compensation in case the 'untoward incident' comes within the purview of Exception (a) to (e) of proviso of Section 124(A), which are as hereunder:- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him m 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. In the instant case, it is evident that the report (Ext-A1) of Asst. Station Superintendent is based on assumption and speculation. The provision of Section 124(A) is based on the principle of strict liability and the Railways can be exonerated to pay the statutory liability, only when, they can establish the fact that the 'untoward incident' was covered by the Exceptions (a) to (e) as enumerated in the proviso to Section 124(A). The burden and onus lies on the Railways to prove the fact that the injuries sustained by the deceased leading to his death was on account of the acts attributable to him as enunciated in Exceptions (a) to (e). II. Evidently, the respondent/Railways have not brought on record any clinching evidence or examined any eye-witness to substantiate and support the recital in the report of Assistant Station Superintendent, Ext. A1, that the untoward incident was occasioned by any act of criminal negligence on part of the deceased or the deceased was suffering from mental insanity or the injury was self- inflicted. Explanation to Section 124(A), provides that passenger includes any person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes victim of an untoward incident. 'Untoward incident' has been defined in Section 123(c)(2) as the accidental falling of any passenger from a train carrying passengers. Explanation to Section 124(A), provides that passenger includes any person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes victim of an untoward incident. 'Untoward incident' has been defined in Section 123(c)(2) as the accidental falling of any passenger from a train carrying passengers. As discussed, the Railways have not adduced any evidence to establish the plea that the death of the deceased was covered by the Exceptions (a) to (e) of the proviso of Section 124(A) to exonerate the Railways from the liability to pay the compensation. Even if, it is presumed, that the deceased fell down on account of negligence as he was standing near the open gate of the compartment, then also such negligence cannot be attributed as a criminal act or self-inflicted injury on the part of the deceased. 12. Now the question arises whether the claimants are entitled to the enhanced compensation in terms of Railways Accident and Untoward Incident (Compensation) Amendment Rules, 2016, or not? In this connection it is pertinent to refer to in the-case of Rathi Menon v. Union of India, (2001) 3 SCC 714 , wherein the Supreme Court' has elaborated discussed the circumstances and the reasons for payment of enhanced compensation in terms of the amended rule. It has observed that the value of money to be paid as compensation will not be same after the lapse of several years because the purchasing power of the money decreases on account of rise in cost of living due to rise in prices of commodities. It has been enumerated that the Legislature in its wisdom, has enhanced the compensation amount taking into account the factors of escalation and rise in the price index and inflation. The ratio laid down in the case of Rathi Menon (supra) has been reiterated and adhered to by the Apex Court in the case of N. Parameshwaran Pillai and another v. Union of India and another, (2002) 4 SCC 306 , wherein reference has been made to paras 28 and 29 of the case of Rathi Menon (supra) which reads as under :" 28. The Central Government while changing the figures in compensation amount after an interval of a decade was only influenced by the desire to update the money value of the compensation. The Central Government while changing the figures in compensation amount after an interval of a decade was only influenced by the desire to update the money value of the compensation. In other words, what you were to pay ten years ago to one person cannot be the same if it is paid today in the same figure of currency notes. It is for the purpose for meeting the reality that the Central Government changed the figures. 29. The unjust consequence resulting from the interpretation which the Division Bench placed can be demonstrated in another plane also. If a person who sustained injury in a railway accident or in an untoward incident was disabled form making an application immediately and he makes the application a few years hence, is he to get the compensation in terms of the money value which prevailed on the date of the accident? Suppose a Tribunal wrongly dismissed a claim after a few years of filing the application and the claimant approaches the High Court in appeal. As it happens quite often now, some High Courts could take up such an appeal only after the lapse of many years and if the appeal is decided in favour of the claimant after so many years, what a pity if the amount awarded is only in terms of the figure indicated on the date of the accident." 13. Thus, in the back drop of the discussions made hereinabove and considering the settled principle in the considered opinion of this Court, it will be just. reasonable and fair to direct the Railways to pay the enhanced compensation amount of Rs. 8.00,000/- (Eight Lakhs) in terms of the amended provision of the Railways Accident and Untoward Incident (Compensation) Amendment Rules. 2016, from the date of filing of the claim application with interest @ 9% per annum within three months from the date of receipt or production of a copy of this order. 14. When the said observation and direction the appeal stands allowed. 15. Let a copy of this order be handed over to the learned counsel for the respondent/Railways for needful. Appeal allowed.