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2020 DIGILAW 730 (JHR)

Laxman Mahli, S/o. Malku Ram v. Union of India

2020-07-07

KAILASH PRASAD DEO

body2020
JUDGMENT : (Through : Video Conferencing) Heard, learned counsel for the appellants and learned counsel for the respondent. 2. The appellants/claimants have preferred this appeal against the award dated 27.11.2014 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi, in Case No.OA (IIU) RNC/2010/0095 (Old No.OA (IIU)-9005/09). 3. Learned counsel for the appellants, Ms. Chaitali Chatterjee Sinha has submitted that the instant appeal has been preferred by the appellants, Sri Laxman Mahli and his wife, Smt. Nirmala Devi, both parents of deceased-Khileshwar Mahli who died in an untoward incident on 30.05.2008 and he was a bona-fide passenger and to that effect, affidavit has been filed by A.W.1, namely, Laxman Mahli who has categorically stated in paras 2 and 3 which reads as follows :- ^^2- ;g fd fnukad 30-05-2008 dks Vsªu la[;k 7RL jk¡ph&yksgjnxk lokjh xkM+h ls f}rh; Js.kh dk ;k=k fVdV [kjhndj oS| ;k=h ds :i esa mijksDr xkM+h ds tsujy cksxh esa lokj gksdj esjk iq= jk¡ph ls yksgjnxk vk jgk FkkA 3- ;g fd mijksDr xkM+h esa ;kf=;ksa dh ges'kk HkhM+ jgk djrh gS ,oa ?kVuk ds fnu Hkh ;kf=;ksa dh dkQh HkhM+ FkhA** 4. During cross-examination, witness A.W.1 has stated that deceased had purchased a ticket, which was inside the bag and the same was lost, some of the passengers have disclosed this fact. A.W.2-Bishun Mahli has stated similar facts in paras-3, 4 and 5 of his examination in-chief which reads as follows :- ^^3- ;g fd fnukad 30-05-2008 dks Vsªu la[;k 7RL jk¡ph&yksgjnxk lokjh xkM+h ls ¼tks fd jk¡ph ls ;g xkM+h yxHkx 07-00 cts 'kke dks [kqyrh gS½ oS| ;k=h ds :i esa mijksDr xkM+h ds tsujy cksxh esa lokj gksdj e`rd f[kys'oj egyh jk¡ph ls yksgjnxk vk jgk FkkA 4- ;g fd e`rd f[kys'oj egyh dh fnekxh gkyr fcYdqy Bhd FkkA 5- ;g fd fnukad 31-05-2008 dh lqcg xk¡ao okyksa ls tkudkjh feyh fd chrs jkr dksbZ O;fDr Vsªu ls fxj dj ejk iM+k gSA lwpuk ikdj eSa Hkh 'ko ds ikl x;kA** 5. During cross-examination, this witness A.W.2-Bishun Mahli has stated that the deadbody was found near the Railway track where the train has no stoppage. He was known to the deceased for last 2-3 years. His mental condition was perfect. G.R.P. lodged FIR on his instance and on which he put his signature. On the direction by the police he signed the fardbeyan without going through it. He was known to the deceased for last 2-3 years. His mental condition was perfect. G.R.P. lodged FIR on his instance and on which he put his signature. On the direction by the police he signed the fardbeyan without going through it. A.W.2-Bishun Mahli has stated similar facts in his cross-examination, which reads as follows : ^^------eq>s xkM+h xk¡o ds O;fDr ca/kq mjk¡o us crk;k fd Vsªd ds cxy esa vf[kys'oj egyh dk yk'k iM+k gqvk gS ml LFkku ij Vsªu dk LVkWist ugha gSA ------eSa e`rd dks 2&3 lky ls tkurk Fkk mldk fnekxh gkyr Bhd FkkA ------QnZc;ku esa tks fy[kk gS oSlk eSaus c;ku ugha fn;k Fkk fd mldk fnekxh gkyr [kjkc jgrk gSA ------eSaus QnZc;ku ugha iM+k Fkk dsoy iqfyl ds dgus ij gLrk{kj fd;k FkkA ------mldk fnekxh gkyr Bhd ugha jgrk Fkk ;s ckr lgh ugha gSA ------,QvkbZvkj esjs dgus ij thvkjih us fy[kk vkSj eSaus gLrk{kj fd;kA** 6. Learned counsel for the appellants has thus, submitted that in view of the judgment passed by the Hon'ble Apex Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572 para 29, wherein it has been held that “Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and the burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. As such, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona-fide passenger”. Learned counsel for the appellants has thus submitted that the learned Tribunal has wrongly considered the deceased, not to be a bona-fide passenger. Learned counsel for the appellants in support of her submission has relied upon a judgment rendered in the case of Union of India vs. Prabhakaran Vijaya Kumar AIR 2008 (2) T.A.C. 777(SC) equivalent 2008 (9) SCC 527 , of which paras 14 to 17 and 22 to 24 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. 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). As such, the deceased died in an accident which comes under the provisions of Section 123 (C)(2) of the Railways Act, as such, appeal is fit to be allowed by this Hon'ble Court. Learned counsel for the appellants has further submitted that recently, she got an information that appellant No.1, Sri Laxman Mahli (father of the deceased) has died on 30.02.2018, as such, the name of the applicant No.1 may be expunged. 7. Learned counsel for the appellants has further submitted that recently, she got an information that appellant No.1, Sri Laxman Mahli (father of the deceased) has died on 30.02.2018, as such, the name of the applicant No.1 may be expunged. 7. Learned counsel for the appellants has further stated that delay will cause loss to the Railways in terms of the interest, as such, Railway may indemnify the compensation either in view of the unamended Rule i.e. Railway Accidents and Untoward Incidents (Compensation) Rule, 1990 of amount of Rs.4 Lacs with interest @ 9% per annum in view of the judgment passed by the Hon'ble Apex Court in the case of Rathi Menon Vs. Union of India, reported in (2001) 3 SCC 714 at paras 29 and 30 or in view of the new amended rule i.e. Railway Accidents and Untoward Incidents (Compensation) Rule, 2016 made effective from 01.01.2017 in view of the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. Radha Yadav, reported in 2019 (3) SCC 410 paras 11 and 12, after taking an affidavit from appellant No.2, namely, Smt. Nirmala Devi along with death certificate of her husband, Laxman Mahli. 8. Learned counsel for the Railways has opposed the prayer and submitted that Exhibit-R3 is the application written by Sri Bhola Nath Ram, ASI, Railway Protection Force to the Senior Divisional Security Commissioner, where Officer-in-Charge has endorsed that Chawkidar disclosed that the deceased was mentally ill and Ext. R4 is the statement of Sri Ram Naresh Dubey, Train Guard, who has been stated that during his duty time, no person has sustained injury, as such, this Court may not interfere with the impugned judgment of dismissal of the claim application. 9. Heard, learned counsel for the appellants and learned counsel for the respondent-railways and perused the judgment relied by learned counsel for the appellants. There was sufficient material on record to consider the deceased-Khileshwar Mahli to be a bona-fide passenger in view of Section 2(29) of the Railways Act, considering the evidence of A.W.1-Lakshman Mahli as referred above and in view of the judgment passed by Hon'ble the Apex Court, in the case of Rina Devi (supra). There was sufficient material on record to consider the deceased-Khileshwar Mahli to be a bona-fide passenger in view of Section 2(29) of the Railways Act, considering the evidence of A.W.1-Lakshman Mahli as referred above and in view of the judgment passed by Hon'ble the Apex Court, in the case of Rina Devi (supra). The incident also comes under the purview of Section 123 (C)(2) of the Railways Act in view of the evidence of A.W.1-Bishun Mahli and judgment passed by the Hon'ble Apex Court in the case of Prabhakaran (supra), as such, the impugned judgment of dismissal dated 27.11.2014 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi, in Case No.OA(IIU) RNC/2010/0095 (Old No.OA (IIU)-9005/09) is hereby set aside. 10. Accordingly, the instant Miscellaneous Appeal stands allowed. 11. Respondent-Railways is directed to pay a sum of Rs.4 Lacs along with interest from the date of filing of the claim application i.e. 29.12.2008 with interest @ 9% per annum till the date of payment or Rs.8 Lacs in view of the new amended Rule 2016 made effective from 01.01.2017 whichever is higher in view of the judgment rendered in the case of Rina Yadav (Supra) to the appellant No.2, Smt. Nirmala Devi only after obtaining an affidavit along with the death certificate of the appellant No.1.