Research › Search › Judgment

Jharkhand High Court · body

2020 DIGILAW 732 (JHR)

Dharmendra Kumar v. Union of India

2020-07-07

KAILASH PRASAD DEO

body2020
JUDGMENT : (Through : Video Conferencing) 1. Heard, learned counsel for the appellant, Mrs. Chaitali Chatterjee Sinha and learned counsel for the railways, Mr. Vijay Kumar Sinha. 2. The appellant, Dharmendra Kumar, has preferred this appeal against the order dated 01.08.2013 passed by Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. OA(IIU) RNC/2011/0039, whereby his claim application has been dismissed on the ground that the incident was covered under exception (a) to (e) of Section 124A of the Railways Act, 1989. 3. Learned counsel for the appellant, Mrs. Chaitali Chatterjee Sinha, has assailed the impugned order of dismissal of the claim application of the appellant on the ground that appellant -Dharmendra Kumar was examined as A.W.-1 and he has categorically stated in his examination-in-chief, at paragraph-2, that on 08.04.2011, after purchasing and having a valid second class ticket for Jasidih to Sonpur Station, boarded in train no. 18181 UP, Tata-Chhapra Express train at Jasidih for going to Sonpur and has stated at paragraph-3, that there was heavy rush in the general compartment. 4. This witness was cross-examined by the Railways on 30.04.2013 and the question made by the Railways i.e. D;k vkius fVdV nkf[ky ugha fd;k gSA vkidks pksV dgk¡ vk;h gS\ 5. The victim has replied that eSus fVdV nkf[ky ugha fd;k gSA cSx esa fVdV Fkk tks Vªsu esa NqV x;k vkSj xkM+h pyh x;hA esjk ck;k iSj ?kqVuk ls Åij dVk gSA 6. Learned counsel for the appellant has further 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 and in the case of Union of India Vs. Prabhakaran Vijaya Kumar reported in (2008) 9 SCC 527 , the appellant was a bonafide passenger and the incident was an untoward incident as defined under Section 123 (c)(2) of the Railways Act. Paragraph-29 of the Rina Devi (Supra) judgment is profitably quoted hereunder: “29. We thus hold that mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. We thus hold that mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. 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. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly.” (emphasis supplied) 7. Paragraph-14 to 17 & 22 and 23) of the Prabhakaran Vijaya Kumar (Supra) judgment are re-produced below:- “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 dependant 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 defendants' 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". 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 two fold (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. 8. Learned counsel for the appellant has further submitted that the appellant will come under Part-II (3) of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, where the compensation was Rs. 4,00,000/-, which is enhanced to Rs. 8,00,000/- in view of new amendment made in the Railway Accidents and Untoward Incidents (Compensation) Rules, 2016 which is applicable from 01.01.2017. 9. Learned counsel for the respondent has submitted that the learned Tribunal has rightly passed the impugned order and no interference is required. However, the injury will not come under Part-II(3) of the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, rather it will come under Part-III(19), for amputation below middle thigh to 41/2” below knee, where compensation was Rs. 2,40,000/- at the relevant time which has been amended as Rs. 4,80,000/- in view of the Railway Accidents and Untoward Incidents (Compensation) Rules, 2016. 10. 2,40,000/- at the relevant time which has been amended as Rs. 4,80,000/- in view of the Railway Accidents and Untoward Incidents (Compensation) Rules, 2016. 10. Heard, learned counsel for the appellant, Mrs. Chaitali Chatterjee Sinha and learned counsel for the respondent, Mr. Vijay Kumar Sinha and perused the materials brought on record including the evidence of A.W.-1 as stated above. Since the evidence was sufficient for considering the injured to be bonafide passenger in view of the judgment of the Apex Court passed in the case of Rina Devi (Supra), but the incident was wrongly considered to be under exception (a) to (e) of Section 124A of the Railways Act, 1989 by the learned Tribunal. The learned Tribunal ought to have been the considered the incident to be an untoward Incident as defined under Section 123 (c)(2) of the Railways Act in view of the judgment passed by the Apex Court in the case of Prabhakaran Vijaya Kumar (Supra), as such the injured appellant is a bonafide passenger. 11. This Court has considered submissions of both, learned counsel for the appellant as well as learned counsel for the respondent with regard to falling in the category of Part II(3) as claimed by the claimants and in the category of Part III (19) as claimed by the respondent and also perused the photograph of the injured and found that it is fit case which fall under Part III (19) and the injured is entitled for compensation of Rs. 2,40,000/- as per existing law i.e. as per the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990 relevant at the time of incident i.e. 08.04.2011 or along with interest @ 9% in view of the judgment passed by the Apex Court in the case of Rathi Menon Vs. Union of India reported in 2001 (3) SCC 714 or Rs. 4,80,000/- as per the new amended Rules, 2016, whichever is higher in favour of the injured appellant, as it is beneficial legislation in view of the judgment passed by the Apex Court in the case of Union of India Vs. Radha Yadav reported in (2019) 3 SCC 410 . 12. Accordingly, the instant miscellaneous appeal is allowed. 13. The railways is directed to pay Rs. 2,40,000/- along with interest @ 9% from the date of filing of the claim application i.e. 11.07.2011 till the actual date of payment or Rs. Radha Yadav reported in (2019) 3 SCC 410 . 12. Accordingly, the instant miscellaneous appeal is allowed. 13. The railways is directed to pay Rs. 2,40,000/- along with interest @ 9% from the date of filing of the claim application i.e. 11.07.2011 till the actual date of payment or Rs. 4,80,000/- as per new amended Rules, 2016 made applicable from 01.01.2017, whichever is higher to the injured / claimant in view of judgment passed by the Apex Court in the case of Radha Yadav (Supra). 14. Accordingly, the instant appeal is allowed.