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2018 DIGILAW 2029 (JHR)

Tijan Devi v. Union Of India

2018-09-07

AMITAV K.GUPTA

body2018
JUDGMENT Amitav K. Gupta, J. - This appeal is directed against the order dated 19.08.2015 passed by the learned Member(Technica|) of Railway Claims Tribunal, Ranchi Bench in Case no.OA(IIU)/RNC/2014/0029 whereby the learned Tribunal has dismissed the claim of the appellants. 2. Learned counsel for the appellants has argued that though the Tribunal has recorded the finding that the deceased was a bona-fide passenger as defined under Section 2(29) of the Railways Act, 1989, however, a manifest error has been committed in denying the compensation by relying on the deposition of Station Superintendent(C.W.2) and the Guard of the train (C.W.1). It is argued that the Tribunal has not considered the fact that C.Ws.1 and 2 were not an eye witness to the incident. The Tribunal has erred in holding that the deceased fell down while boarding the train from the off side therefore, the injury sustained by him was on account of negligent act of the deceased which comes within the purview of the exception of self-inflicted injury under the proviso to Section 124-A of the Railways(Amendment) Act, 1994 and the respondent-Railways is exonerated from the liability to pay the compensation. It is submitted that the Apex Court in the case of Union of India v. Rina Devi: 2018 (3) TAC 26 (SC) has observed that the attempt of getting into or getting down from a moving train resulting in an accident is not a self-inflicted injury. That such act comes within the purview of untoward incident in terms of Section 123 (c) of the Act. That the Tribunal erred in law by not adhering to the aforesaid settled proposition in dismissing the claim of the appellants. 3. Per contra, learned counsel for the respondent-Railway has supported the impugned order and contended that from the narration of the occurrence and the testimony of C.Ws.1 and 2 it is abundantly clear that the deceased was boarding the train from the offside and in doing so he fell down and sustained fatal injuries resulting in his death. It is argued that deposition of C.Ws.1 and 2 is corroborative of the fact that the deceased died due to the injuries on account of his own negligence. Such negligent act of the deceased amounts to self-inflicted injury covered under Clause (b) of the exception to proviso of Section 124-A of the Act. It is argued that deposition of C.Ws.1 and 2 is corroborative of the fact that the deceased died due to the injuries on account of his own negligence. Such negligent act of the deceased amounts to self-inflicted injury covered under Clause (b) of the exception to proviso of Section 124-A of the Act. In the exposited facts the Tribunal has not committed any error in law or on fact by rejecting the claim of the appellants. 4. Heard. Considering the respective stand taken by the parties, the question which falls for determination is whether the deceased died on account of untoward incident as defined under section 123 of the Railways Act or the act of the deceased comes within the purview of self-inflicted injury in terms of exception clause (b) of the proviso to Section 124A of the Act. 5. The stand of respondent-railways is that the deceased was boarding the train from off side and not from the platform side. That due to such negligent act he fell down and sustained fatal injuries resulting in his death therefore such wrongful and negligent act is covered under exception (b), i.e., "self-inflicted injury" of the proviso to Section 124A of the Act, consequently, the railways cannot be held liable to pay the compensation under Section 124 of the Act. 6. For appreciation of the arguments it will be profitable to refer to the provision of Section 123 wherein in Clause ( c) the definition of untoward incident is incorporated and Section 124A of the Act:- "123(c ) "untoward incident" means :- (2) the accidental failing of any passenger from a train carrying passengers. 7. Section 124 of the Act provides as follows:- "124A. 7. Section 124 of the Act provides as follows:- "124A. Compensation on account of untoward incident.-- When in the course of working a railway an untoward incident occurs, then whether or not there has been any wrongful act, neglect or default on the part of the railway administration such as would entitle a passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident: Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to--- (a) suicide or attempted suicide by him; (b) self-inflicted injury; (c) his own criminal act; (d) any act committed by him in 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. Explanation .---For the purposes of this section, "passenger" includes- (i) a railway servant on duty; and (ii) a person who has purchased a valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident." 8. There is no dispute to the fact that the deceased was a bona-fide passenger. A.W.1, Tijan Devi, the wife of the deceased, lodged the FIR. It is stated that the deceased, Darshan Mahato boarded the train for going to Bokaro Thermal Power Station. Due to heavy rush and jostling of the crowd her husband fell down from train resulting in amputation of his legs by the wheels of the train. He was taken to the railway hospital at Patratu. and was referred for treatment to RIMS at Ranchi. That he died in course of his treatment on 09.02.2004. The Station Superintendent (C.W.2) deposed that he reached the place of incident on hearing the shouts of the public. By the time he reached the public(passengers) had boarded the injured on the train. and was referred for treatment to RIMS at Ranchi. That he died in course of his treatment on 09.02.2004. The Station Superintendent (C.W.2) deposed that he reached the place of incident on hearing the shouts of the public. By the time he reached the public(passengers) had boarded the injured on the train. In cross-examination, he has admitted that the guard(C.W.1) had not given him any written memo regarding the manner of occurrence. Perusal of deposition of C.W.1,i.e., the Guard of the train reveals that he did not witness the incident and in para 6 of his testimony, he has admitted that he had not seen the occurrence with his own eyes. It is evident that C.Ws.1 and 2 were not eye witnesses to the incident. The respondent/railway has not examined any independent eye witnesses and the Tribunal has based its finding on the evidence of C.Ws.1 and 2. They are highly interested witnesses. In fact, the finding of the Tribunal is based on speculation. 9. Evidently, the Tribunal has recorded its finding on testimony of C.Ws.1 and 2 but no sound reasons have been assigned for relying on the testimony of C.Ws.1 and 2 while recording the finding that the testimony was trustworthy despite the fact that they did not witness the incident. 10. Section 124 A is based on the principle of strict liability and it provides that the railway is bound to pay the compensation to a passenger who is a victim of untoward incident regardless of any wrongful act on the part of the railway administration. However, the proviso to Section 124A enumerates the exceptions whereby the railway administration is exonerated from the liability to pay the compensation in case the death of the passenger or injury to such passenger is caused on account for the reasons enshrined in exception Clauses (a ) to ( e). Therefore, for escaping the liability to pay the statutory amount the burden lies on the railway administration to establish that the untoward incident comes within the exception as enumerated in (a) to (e ) of the proviso of Section 124-A of Railways Act. 11. Therefore, for escaping the liability to pay the statutory amount the burden lies on the railway administration to establish that the untoward incident comes within the exception as enumerated in (a) to (e ) of the proviso of Section 124-A of Railways Act. 11. As noticed the plea of the railway that the injury sustained by Darshan Mahato(since deceased) resulting in his death was self-inflicted injuries as he fell down from the train whi|e boarding from the wrong side of the train, is founded on the testimony of C.Ws.1 and 2 who are admittedly not eye witnesses to the incident. At this juncture it is relevant to state that Section 124A of the Act is a beneficial piece of legislation. The Supreme Court, in the case of Union of India v. Prabhakaran Vijayka Kumar: { 2008 (2) KLT 700 (SC) } has observed that while considering the application of Section 123(c ) and 124A of the Act and interpreting the language or expression "accidental falling of a passenger from a train carrying passengers" if the words used in a beneficial or welfare statute are capable of two constructions, then the interpretation which is more in consonance with the object of Act and for the benefit of the person for whom the Act was made should be preferred. In the case of Jameela v. Union of India:{ 2010 (3) KLT 882 (SC)}, the meaning of the word and expression "self-inflicted injury" has been elaborately discussed and the Supreme Court has observed that negligence cannot be equivalent to criminal act mentioned in Clause ( c) of the proviso to Section 124A. After succinctly discussing the meaning of the expression "self-inflicted" injury it has been observed that a criminal act envisaged under Clause (c ) must have been an element of malicious intent or mens rea and an act of negligence is not a criminal act when the mens rea is lacking. After succinctly discussing the meaning of the expression "self-inflicted" injury it has been observed that a criminal act envisaged under Clause (c ) must have been an element of malicious intent or mens rea and an act of negligence is not a criminal act when the mens rea is lacking. Therefore, the argument of the respondent railways that the deceased died on account of his own negligence or wrongful act as he was boarding the train from the wrong side, hence such injury tant amounted to self-inflicted is not acceptable, because the act cannot be termed to be a criminal act rather it may be a negligent or rash act as the railway administration has failed to adduce the requisite evidence to establish that such an act was done with a criminal intent, to bring it within the definition of self inflicted injury of Clause (b) of the proviso of Section 124-A of the Act. In the attending facts the falling from the train of the deceased Biswas. while boarding the train is an untoward incident and it does not come within the purview of exception (b) of the proviso of Section 124 A, consequently, the railway administration cannot be exonerated from the liability to pay the compensation. 12. For the foregoing reasons and the settled proposition, it is held that the respondent-railways are liable to pay the compensation of Rs. 4.00 lakhs with interest at the rate of 9 per cent to the appellants from the date of filing of the application till realization/payment. 13. In the result, the order dated 19.08.2015 passed by the learned Member(Technical) of Railway Claims Tribunal, Ranchi in Case No.OA (IIU)/RNC/2014/0029 is hereby set aside. The respondent-railway shall pay the compensation amount to appellant no.1, i.e. ,the wife of the deceased, within three months from the date of receipt/production of this order.