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2017 DIGILAW 465 (GUJ)

Union of India v. Sagar Vijaybhai Gatha

2017-02-27

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present First Appeal is filed under Section 23 of the Railway Claims Tribunal Act 1987 challenging the impugned judgment and order passed by the Railway Claims Tribunal, Ahmedabad in Claim Case No. OA 2014/0199 dated 22.6.2016 regarding claim for compensation for the injury sustained by the Respondent/Original Claimant who filed the aforesaid Application for compensation. 2. It is sought to be contended that the injured Respondent suffered the injuries while trying to board the moving train, which does not fall within the definition of "untoward incident" as provided under Section 123(c)(2) of the Railways Act. It is contended that the Tribunal has failed to appreciate that even the father of the injured has given the statement that he was informed by his son that while catching the running train he fell down and sustained the injuries. Therefore, it is sought to be contended that the Tribunal has failed to appreciate on the basis of material and evidence that it was his own negligence that he fell down while boarding the running train, and therefore, it would not be covered under Section 123(c)(2) of the Railways Act. 3. Heard learned Advocate Ms. Archana U. Amin for the Appellant - Railway Administration and learned Advocate Shri P.J. Mehta for the Respondent. 4. Learned Advocate Ms. Amin referred to the impugned judgment as well as R&P and other papers referring to the statement of the injured Applicant that it is stated by him that he started to return from Bhaktinagar to Jabalpur by Train No. 11464 - Junagadh Somnath Express. He was having season ticket, and when he boarded the general compartment of the train from the platform of Bhaktinagar Railway Station, the train started with a sudden jerk and he lost his balance and fell down. Learned Advocate Ms. Amin submitted that one Shri Raj Shekhar Savant has also stated in his affidavit that he was on duty as Station Superintendent at Bhaktinagar Railway Station. According to his statement as well as the statement of the Guard, one unknown person has fallen down while boarding the running train and sustained the injuries. Learned Advocate Ms. Learned Advocate Ms. Amin submitted that one Shri Raj Shekhar Savant has also stated in his affidavit that he was on duty as Station Superintendent at Bhaktinagar Railway Station. According to his statement as well as the statement of the Guard, one unknown person has fallen down while boarding the running train and sustained the injuries. Learned Advocate Ms. Amin referred to Section 123 (c), which defines "untoward accident" and submitted that Section 123(c)(2) provide; "the accidental falling of any passenger from the train carrying passenger." She therefore submitted that as the accident occurred due to negligence of the Applicant himself, the Railway would not be liable as the accident would not be covered by Section 123(c)(2) of the Railways Act. She submitted that it would also not attract Section 124 or 124(A) of the Railways Act. 5. Learned Advocate Shri P.J. Mehta for the Respondent has referred to the R&P and submitted that the Applicant was having a season pass. He submitted that he has clearly stated that he had boarded the train from the platform and he was a bona fide passenger and the train started all of a sudden and because of the jerk he has fallen down, resulting in the injuries. He also referred to the papers and submitted that the statement of the witnesses are hearsay based on the information given by others. However, he submitted that it is not in dispute that the incident has taken place, and therefore, it would be covered under Section 123(c)(2) of the Railways Act. Learned Advocate Shri Mehta submitted that the Hon'ble Apex Court in a judgment in case of Union of India v. Prabhakaran Vijaya Kumar reported in 2008 ACJ 1895 has made the observation that if the accident has occurred while mounting or alighting from the train, it would be covered under Section 123 of the Railways Act. He therefore submitted that the present Appeal may not be entertained. 6. In view of these rival submissions, it is required to be considered whether the present Appeal deserve consideration. 7. As could be seen from the background of the facts, it is not in dispute that the injured was a passenger as he was having the season pass. The emphasis given by learned Advocate Ms. 6. In view of these rival submissions, it is required to be considered whether the present Appeal deserve consideration. 7. As could be seen from the background of the facts, it is not in dispute that the injured was a passenger as he was having the season pass. The emphasis given by learned Advocate Ms. Archana U. Amin that the Applicant was trying to catch the moving train resulting in the accident, and therefore, it would not be covered under Section 123(c)(2) of the Railways Act, is required to be considered. The provisions of Section 123(c)(2) of the Railways Act, 1989 provide: "the accidental falling of any passenger from a train carrying passengers." Thus, it is not in dispute that the Applicant had fallen down accidentally and therefore it would be an untoward incident. 8. The much emphasis given by learned Advocate Ms. Amin referring to the affidavits and the statements of witnesses that the Applicant boy fell down while mounting the train or fell down while catching the train require a closer scrutiny. Relying on the statement of the injured Applicant itself clearly states that he had boarded from the platform. However, as the train started with the jerk and as he was near the door, he fell down. Therefore, it would be considered as an accident and it would also be covered under Section 123(c)(2) of the Railways Act as stated above. Moreover, having regard to the provisions of Section 123(c)(2) of the Railways Act read with Section 124(A), whether the Railway Administration could be liable or whether it is permissible to raise such a contention based on the basis of negligence as available under the Law of Torts. The statutory provisions of the Railways Act as stated herein above provide for the liability of the Railway once the untoward incident is established. Therefore, the moot question which is required to be considered is whether the accident as occurred would be covered under Section 123(c)(2) of the Railways Act. Section 123(c)(2) provide: "Accidental falling of a passenger from a train carrying passenger." Admittedly, the deceased who was boarding the train, fall down, resulting in accident. The moot question is about the factum of accident and whether it would be covered under Section 123(c)(2) of the Railway Act. Section 123(c)(2) provide: "Accidental falling of a passenger from a train carrying passenger." Admittedly, the deceased who was boarding the train, fall down, resulting in accident. The moot question is about the factum of accident and whether it would be covered under Section 123(c)(2) of the Railway Act. Therefore, once it is accepted that the accident has occurred, it would be covered as an untoward incident and the Railway cannot escape the liability raising such contention on the basis of negligence available under the Law of Torts in view of the specific provisions of Section 124(A) of the Railway Act. A useful reference can be made to the judgment of the Hon'ble Apex Court in case of Union of India v. Prabhakaran Vijaya Kumar (supra). The Hon'ble Apex Court has observed that it would be an untoward incident even if the accident occurs while mounting or alighting the train. It is required to be stated that the courts cannot be oblivious of the realities regarding the crowd rushing for boarding or alighting the train. 9. Again, Section 124 of the Railway Act refer to the extent of liability. Further, Section 124(A) of the Railway Act has a underlying principle of strict liability. Therefore, the submissions which have been made to suggest that it was a negligence of the victim and therefore railway administration would not be liable and it would dis-entitle the claimant to make claim for compensation could not be believed. A close look at Section 124(A) of the Railway Act read with proviso makes out a limited exception where the railway may not be liable. The proviso to Section 124(A) of the Railway Act carves out a limited exception where the liability may not be fasten on the railways for the accident. The case of the deceased does not fall in any of the exception as provided in proviso on the basis of which the railway could avoid the liability. The Tribunal has also considered this aspect referring to the manner of accident and has not accepted the contention that it was negligence of the deceased. As stated above, Section 124(A) of the Railway Act provide for strict liability or no fault liability once the accident is proved or established. Further, as stated above, the railway could avoid the liability only in certain circumstances as provided in Section 124(A) of the Railway Act. 10. As stated above, Section 124(A) of the Railway Act provide for strict liability or no fault liability once the accident is proved or established. Further, as stated above, the railway could avoid the liability only in certain circumstances as provided in Section 124(A) of the Railway Act. 10. The Hon'ble Apex Court in a judgment in case of Union of India v. Prabhakaran Vijaya Kumar (supra) as well as the judgment in case of Jameela & Others v. Union of India reported in 2010 ACC 800 SC has also provided for the liability of the Railway. Moreover, the Hon'ble Apex Court in case of M.C. Mehta and Anr. v. Union of India and ors. reported in AIR 1987 SC 1086 (1) has referred to the aspect of strict liability particularly with regard to the concept of strict liability and doctrine of State action. 11. Therefore, having regard to the judgment and order recording the reasons, it cannot be said that there is any error. This court is in complete agreement with the findings and the conclusion arrived at by the Tribunal which does not call for any interference. The present First Appeal therefore deserve to be dismissed and accordingly stands dismissed. Civil Application stands disposed of accordingly. R&P is ordered to be sent back forthwith.