JUDGMENT : (Through : Video Conferencing) I.A. No.1348 of 2020 1. Learned counsel for the appellants has submitted that there is delay of 317 days in preferring the appeal and the reason has been explained in I.A. and considering the holistic view of the matter as well as merit of the appeal, the delay may be condoned as if the delay is not condoned in such a benevolent legislation irreparable loss will be caused to the appellants. 2. Learned counsel for the respondent has opposed the prayer and submitted that there is long delay of 317 days in filing the appeal and reason has not been properly explained by the claimants/appellants, as such, after delay of such a long time it would not be proper to interfere with the finding recorded by the learned Tribunal, as such, delay may not be condoned and the appeal itself is liable to be dismissed. 3. Considering the submissions of the parties, this Court is inclined to condone the delay of 317 days in preferring the appeal. 4. Accordingly, delay of 317 days in preferring the appeal is hereby condoned. 5. I.A. No.1348 of 2020 stands disposed of. M.A. No. 393 of 2019 6. Heard, learned counsel for the parties. 7. Learned counsel for the appellants has assailed the impugned award dated 20.06.2018 passed by learned Member (Technical) Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.OA(IIU)/RNC/83/2016 whereby the claim application of the claimants, (1) Kalu Bauri @ Kalicharan Bauri, aged about 63 years, S/o Late Mona Bauri, father of the deceased Kirtan Bauri, (2) Kavita Devi, W/o Late Kirtan Bauri, (3) Sonu Bauri aged about 10 years, S/o Late Kirtan Bauri, (4) Manku Bauri aged about 8 years, D/o Late Kirtan Bauri and (5) Sobha Devi aged about 61 years, W/o Kalu Bauri @ Kalicharan Bauri and mother of deceased Kirtan Bauri has been dismissed by the learned Tribunal. 8. Learned counsel for the appellants has submitted that Kirtan Bauri (deceased) died on 16.03.2016 in an untoward incident while travelling from Jamtara station to Kaseetar Station on a passenger train with valid IInd Class ticket. The deceased was standing near the gate inside the bogie and accidentally fell down from the said running train between KM/Pole No.254/06 and 07 due to intense jostling amongst the passengers. As a result of the same, Kirtan Bauri sustained serious injuries and died on the spot. 9. The deceased was standing near the gate inside the bogie and accidentally fell down from the said running train between KM/Pole No.254/06 and 07 due to intense jostling amongst the passengers. As a result of the same, Kirtan Bauri sustained serious injuries and died on the spot. 9. Learned counsel for the appellants has further submitted that the learned Tribunal has dismissed the claim application on the ground that ticket was not found from the person of the deceased and wrongly considered the DRM’s report. As per the DRM’s report, the deceased (Kirtan Bauri) met with an accident due to his own negligence. He might have been run over from running train during crossing the Railway track carelessly which is prohibited as per Railways Act. This fact is corroborated by the statement of on duty Keyman, Lakho Ravidas. 10. Learned counsel for the appellants has further submitted that as per the impugned judgment, it appears that during investigation of the case statement of Lakho Ravidas, Keyman was recorded, who has stated that when he reached at KM No.254/5-7 while checking the UP Rail Track, he saw a person, aged about 30 years, was lying dead in the south direction of UP railway track. He immediately informed the PW/1Jamtara and SM/Jamtara. 11. Learned counsel for the appellants has submitted that from bare reading of the impugned judgment, it appears that Lakho Ravidas, Keyman was not an eye witness to the occurrence, as such, in view of the evidence of the claimant, Kalu Bauri @ Kalicharan Bauri which has been brought on record as Annexure 3. Paras 2 to 10 of which are profitably quoted herein:- “2. That on 16.03.2016 after purchasing and having a valid 2nd Class ordinary ticket for Jamtara station to Kaseetar Station my deceased son Kirtan Bauri boarded in a passenger train at Jamtara Station for going to Kaseetar Station. 3. That there was heavy rush in the said train which compelled my deceased son to stand near the gate inside the bogie. The passengers were jostlified one another for space near the gate of the bogie. 4. 3. That there was heavy rush in the said train which compelled my deceased son to stand near the gate inside the bogie. The passengers were jostlified one another for space near the gate of the bogie. 4. That while the said train was running between Jamtara & Kaseetar stations the deceased (my son) who was standing near the gate inside the bogie accidently fell down from the said running train between K.M./Pole No.254/06 & 254/07 due to intense jostling amongst passenger near the gate of the bogie on account of heavy rush. 5. That as a result of which my deceased son sustained serious injuries and died on the spot. 6. That after getting information from a villager the brother of my deceased son namely Rintu @ Rinku Bauri reached at the place of incident & indentified the dead body of the deceased as his brother Kirtan Bauri. He also received the dad body of my deceased son for cremation after his post-mortem. 7. That on the basis of the fard bayan of the said brother Rintu @ Rinku Bauri an U.D. Case No.12/16 has registered at Madhupur Rail P.S. on 16.03.2016. 8. That the Rail Police investigated the matter & found the factum of occurrence is true and my deceased son died due to aforesaid untoward incident. 9. That my deceased son was married, hence his wife, children alongwith his mothr and myself are the dependents on my deceased son as mentioned under PART-I of the claim application. 10. That the valid ticket of my deceased son was lost during the said untoward incident”. 12. Learned counsel for the appellants has further submitted that in absence of any evidence brought on record by the Railway and in view of the judgment passed by the Apex Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572 at para 29, which is quoted hereunder:- “29. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances.”. 13. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances.”. 13. And in view of the judgment of Hon'ble Apex Court in the case of Union of India vs. Prabhakaran Vijaya Kumar, reported in 2008 (9) SCC 527 , paras14 to 17 and 22 to 24, which are profitably quoted hereunder:- “14. In our opinion, if we adopt a restrictive meaning to the expression “accidental falling of a passenger from a train carrying passengers” in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford travelling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression “accidental falling of a passenger from a train carrying passengers” includes accidents when a bona fide passenger i.e. a passenger travelling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal interpretation should be given to the expression. 15. Section 2(29) of the Railways Act defines “passenger” to mean a person travelling with a valid pass or ticket. Section 123(c) of the Railways Act defines “untoward incident” to include the accidental falling of any passenger from a train carrying passengers. In other words, a purposive, and not literal interpretation should be given to the expression. 15. Section 2(29) of the Railways Act defines “passenger” to mean a person travelling with a valid pass or ticket. Section 123(c) of the Railways Act defines “untoward incident” to include the accidental falling of any passenger from a train carrying passengers. Section 124-A of the Railways Act with which we are concerned states: “124-A. Compensation on account of untoward incidents.—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.” (emphasis supplied) 16. The accident in which Smt. Abja died is clearly not covered by the proviso to Section 124-A. The accident did not occur because of any of the reasons mentioned in clauses (a) to (e) of the proviso to Section 124-A. Hence, in our opinion, the present case is clearly covered by the main body of Section 124-A of the Railways Act, and not its proviso. 17. Section 124-A lays down strict liability or no fault liability in case of railway accidents. 17. Section 124-A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124-A it is wholly irrelevant as to who was at fault. 22. Strict liability focuses on the nature of the defendant's activity rather than, as in negligence, the way in which it is carried on (vide Torts by Michael Jones, 4th Edn., p. 247). There are many activities which are so hazardous that they may constitute a danger to the person or property of another. The principle of strict liability states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part. As Fleming says “permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overheads” (see Fleming on Torts, 6th Edn., p. 302). 23. Thus, in cases where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault. 24. The basis of the doctrine of strict liability is twofold: (i) The people who engage in particularly hazardous activities should bear the burden of the risk of damage that their activities generate, and (ii) it operates as a loss distribution mechanism, the person who does such hazardous activity (usually a corporation) being in the best position to spread the loss via insurance and higher prices for its products (vide Torts by Michael Jones, 4th Edn., p. 267). the finding recorded by the learned Tribunal is fit to be set aside. 14. Learned counsel for the appellants has further submitted that occurrence was of dated 16.03.2016 and the claim application was filed on 20.07.2016, as such, the claimants are entitled for compensation in view of new amendment made in the Railway Accidents and untoward incidents (Compensation) Rules, 2016, which is applicable from 01.01.2017 to the tune of Rs.8 lacs or Rs.4 lacs along with interest in view of the judgment passed by the Hon'ble Apex Court in the case of Thazhathe Purayil Sarabi and others vs. Union of Indian and another, reported in 2009 (7) SCC 372 at para 38, which is profitably quoted hereunder:- “38. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period in which the same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims.” 15. Learned counsel for the respondent, Mr. Yogendra Prasad has opposed the prayer and submitted that the statement of Lakho Ravidas, Keyman has been taken note of in the DRM’s report and the learned Tribunal has rightly refuted the claim, as such, this Court may not interfere with the same. 16. Considering the rival submissions of the parties and perusing the materials brought on record including the evidence of the claimant-Kalu Bauri @ Kalicharan Bauri particularly at paras 2 to 10 as well as the statement of Lakho Ravidas, Keyman recorded in the impugned judgment, it appears that Lakho Ravidas was not an eye witness to the occurrence rather in view of the evidence of Kalu Bauri @ Kalicharan Bauri and the in view of the judgment passed by the Apex Court in the case of Rina Devi (Supra) and no contrary evidence has been brought on record by the Railway. 17. Accordingly, considering the evidence of the claimant-Kalu Bauri @ Kalicharan Bauri and in view of the judgment passed by the Apex Court in the case of Union of India vs. Prabhakaran Vijaya Kumar (Supra) as well as Rina Devi (Supra), this Court is inclined to accept the contention of the claimants by considering the incident as an untoward incident as defined under Section 123(c)(2) of the Railways Act and deceased, Kirtan Bauri as bona-fide passenger in view of evidence of Kalu Bauri @ Kalicharan Bauri, as referred above. 18. Accordingly the instant appeal is hereby allowed. 19. The respondent-railways is directed to pay compensation within a reasonable time as per the prevalent rate at the time of filing of the claim application which was a sum of Rs.4 Lac along with interest @ 7.5% from the date of filing of claim application till the date of judgment or Rs.8 Lacs in view of the new amended rule 2016 made effective from 01.01.2017, whichever is higher to the claimants.