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2022 DIGILAW 1244 (BOM)

Dhondulal v. Union of India

2022-04-28

M.S.KARNIK

body2022
JUDGMENT 1. The challenge in this appeal under Sec. 23 of the Railway Claims Tribunal Act, 1987 is to the judgment and order dtd. 23/1/2019, passed by the Railway Claims Tribunal, Nagpur Bench at Nagpur dismissing the claim application of the appellants-claimants. 2. The appellant Nos.1 and 2 are the father and mother of the deceased whereas appellant No.3 is the daughter of deceased Roshanlal Dhondulal Tembhare (hereinafter referred to as the claimants). The claimants filed claim application before the Railway Claims Tribunal claiming compensation of Rs.8,00,000.00 on account of death of Roshanlal s/o. Dhondulal Tembhare, who died in an untoward incident i.e. falling down from the running train No.12810 Howrah - Mumbai Mail. The incident occurred on 22/11/2017 near platform No.3 of Amgaon Railway Station. The respondent No.2 is the wife of the deceased. During the pendency of the claim application, respondent No.2 re-married. It is the contention of the learned counsel for the claimants that respondent No.2 has not come forward to challenge the order. The notice of this appeal was duly served on respondent No.2. There is no appearance on behalf of respondent No.2 though she is duly served. 3. The claimants contended that the deceased was residing at Raipur with his family. On 22/11/2017 the deceased purchased a railway ticket Ex. Raipur to Gondia for visiting his native place at Koregaon and boarded Howrah - Mumbai Mail No.12810. The said train was crowded, hence he was standing near the door of the compartment. When the said train reached Amgaon Railway Station, due to push of passengers and sudden jerk of the train, Roshanlal fell down on Platform No.3 of the Amgaon Railway Station and sustained severe injuries to the head and body. He died in the hospital during the course of treatment. 4. Before the Tribunal, the respondent No.2 examined herself as witness AW-1. The Railways examined one witness i.e. Guard of Train No.58206 - Itwari Raipur Local by name Shri Sanjay Yashwant Chandurkar as RW-1. The Tribunal for the reasons recorded and on the basis of the evidence of RW-1 Shri Sanjay Yashwant Chandurkar found that the deceased jumped from the train along with his bag. According to the Tribunal, the action of jumping or alighting from a running train which has no stoppage at a station, is different from the action of falling down and, therefore, is a well planned intentional act. According to the Tribunal, the action of jumping or alighting from a running train which has no stoppage at a station, is different from the action of falling down and, therefore, is a well planned intentional act. Relying on the evidence of the Guard - RW-1 and the statement of RPF official recorded by the statutory authority which supports the evidence of the Guard, the Tribunal was of the opinion that having regard to the provisions of clause (b) to the proviso to Sec. 124-A of the Railways Act, 1989, the Railway Administration has no liability to compensate, if a passenger suffers from a self inflicted injury. The Tribunal was of the opinion that the evidence placed on record clearly establishes that present was a case of fall while making unsuccessful attempt to jump from the running train which had no scheduled stoppage at Amgaon Railway Station. The Tribunal disbelieved the case of the claimants that the deceased had an accidental fall from the running train during the course of travel. 5. Learned counsel for the appellants submitted that this is a case of accidental fall and the evidence on record is not at all sufficient to infer that the deceased jumped from the running train or tried to alight at the Amgaon Railway Station. Learned counsel relied upon the case of Jameela and others vs. Union of India, reported in AIR 2010 SC 3705 to submit that this is not a case where the deceased died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. Learned counsel submits that the victims falling down from the train was, thus, clearly accidental. 6. Learned counsel for the railway, on the other hand, invited my attention to the findings recorded by the Tribunal. She submitted that the evidence on record clearly establishes that the deceased has taken a risk and jumped from a running train which had no scheduled stoppage at Amgaon Station. She further submits that the residence of the deceased was 4 to 5 kilometers away from the spot of the incident as admitted by AW-1 and hence the victim jumped at Amgaon Station with a clear and well planned intention to reach home faster. She further submits that the residence of the deceased was 4 to 5 kilometers away from the spot of the incident as admitted by AW-1 and hence the victim jumped at Amgaon Station with a clear and well planned intention to reach home faster. Learned counsel submits that this being a case of a self-inflicted injury, no compensation is payable, as such incident is covered by clause (b) to the proviso to Sec. 124-A of the Railways Act, 1989 and therefore not 'an untoward incident'. 7. Heard learned counsel for the parties. With the assistance of learned counsel for the parties I have gone through the impugned judgment and order and the relevant record and proceedings. 8. The inquest proceeding reveal that in the personal search of the deceased, railway ticket No. 67219166 from Raipur to Gondia has been recovered from the person of the deceased by the Police. The Tribunal has placed much reliance on the statement of Guard of Train No.58206 Itwari-Raipur Local to come to the conclusion that the deceased jumped from the running train. The Guard - RW-1 in his statement says that the deceased jumped from the train. The statement of RPF official which was recorded by the statutory authority reveals that the deceased while trying to alight from the running train fell down and suffered injury resulting in his death. 9. At this juncture, I would seek guidance from the decision of the Supreme Court in the case of Jameela and others vs. Union of India (supra) to consider the effect of negligence on the part of the deceased on liability of Railways. In the case of Jameela and others (supra), the deceased fell down from the train in an untoward incident resulting in his death. It was the contention of Railways that the deceased fell down from the running train due to his own negligence and that there was no negligence on the part of the Railways. In this context, it will be relevant to reproduce para 5 to para 9 of the decision of Jameela and others (supra) which reads thus : "5. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under sec. 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. We are of the considered view that the High Court gravely erred in holding that the applicants were not entitled to any compensation under sec. 124A of the Act, because the deceased had died by falling down from the train because of his own negligence. First, the case of the Railway that the deceased M. Hafeez was standing at the open door of the train compartment in a negligent manner from where he fell down is entirely based on speculation. There is admittedly no eyewitness of the fall of the deceased from the train and, therefore, there is absolutely no evidence to support the case of the Railway that the accident took place in the manner suggested by it. Secondly, even if it were to be assumed that the deceased fell from the train to his death due to his own negligence it will not have any effect on the compensation payable under sec. 124 A of the Act. 6. Chapter XIII of the Railways Act, 1989 deals with the Liability of Railway Administration for Death and Injury to Passengers due to Accidents. Sec. 123, the first sec. of the Chapter, has the definition clauses. Clause (c) defines "untoward incident" which insofar as relevant for the present is as under: "123 (c) untoward incident means- (1) (i) xxxxxxxx (ii) xxxxxxxx (iii) xxxxxxxx (2) the accidental falling of any passenger from passengers." Sec. 124A 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 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 sec. 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 sec. , "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." (Emphais added) 7. It is not denied by the Railway that M. Hafeez fell down from the train and died while travelling on it on a valid ticket. He was, therefore, clearly a "passenger" for the purpose of sec. 124A as clarified by the Explanation. It is now to be seen, that under sec. 124A the liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the railway administration. But the proviso to the sec. says that the railway administration would have no liability to pay any compensation in case death of the passenger or injury to him was caused due to any of the reasons enumerated in clauses (a) to (e). 8. Coming back to the case in hand, it is not the case of the Railway that the death of M. Hafeez was a case of suicide or a result of self-inflicted injury. It is also not the case that he died due to his own criminal act or he was in a state of intoxication or he was insane, or he died due to any natural cause or disease. His falling down from the train was, thus, clearly accidental. 9. The manner in which the accident is sought to be reconstructed by the Railway, the deceased was standing at the open door of the train compartment from where he fell down, is called by the railway itself as negligence. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to sec. 124A. Now negligence of this kind which is not very uncommon on Indian trains is not the same thing as a criminal act mentioned in clause (c) to the proviso to sec. 124A. A criminal act envisaged under clause (c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act, even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the railway must fail even after assuming everything in its favour." (emphasis supplied by me) 10. In the present case admittedly the deceased was travelling on a valid ticket. He was, therefore, clearly a passenger for the purpose of Sec. 124-A of the Railways Act as per the Explanation. It is now to be seen whether under Sec. 124-A of the Railways Act, liability to pay compensation is regardless of any wrongful act, neglect or default on the part of the Railway Administration. According to the railways, the evidence on record indicates that either the deceased jumped from the running train which had slowed down or he was trying to alight from the train. The Guard RW1 of the Train No. 58206 has stated that he saw deceased jump from the train, whereas the RPF official says that the deceased was seen alighting from the train. The Tribunal concluded that as a result of the self-inflicted injury the deceased is not entitled to compensation. 11. The concept of self-inflicted injury within the meaning of Sec. 124-A of the Railways Act has been authoritatively dealt with by the Supreme Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572 . Para 25 of the decision in Rina Devi (supra) which is material for answering the question raised in this appeal reads thus : "25. We are unable to uphold the above view as the concept of 'self inflicted injury' would require intention to inflict such injury and not mere negligence of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India Insurance Co. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. versus Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Sec. 163-A of the Motor Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de-boarding a train will be an 'untoward incident' entitling a victim to the compensation and will not fall under the proviso to Sec. 124-A merely on the plea of negligence of the victim as a contributing factor." (emphasis supplied by me) 12. The facts in the present case reveal that the through train had slowed down at Amgaon Railway Station. The case made out by the appellants is that the deceased was standing near the door and he was pushed out due to rush of passengers inside the train. It is not the Railways case that this is a case of suicide or attempt to commit suicide. At the highest it is a case of the deceased trying to de-board a train which had slowed down at the Railway Station resulting in his death which will have to be regarded as an 'untoward incident' entitling the victim to the compensation. The case will not fall under the proviso to Sec. 124-A of the Railways Act merely on the plea of negligence of the victim as a contributory factor. The Supreme Court in the case of Union of India vs. Rina Devi (supra) has authoritatively dealt with the concept of self-inflicted injury. The liability of railway is based on "no fault theory". The principle of contributory negligence cannot be invoked in such case. 13. The appeal, therefore, deserves to be allowed. 14. The impugned judgment and order dtd. 23/1/2019, passed by the Member (Technical) of Railway Claims Tribunal Nagpur is quashed and set aside. 15. The claim application is allowed. 16. The respondents are directed to pay to the appellants compensation of Rs.8,00,000.00 along with interest at the rate of 6% p.a. from the date of accident. 17. The amount of Rs.8,00,000.00 be apportioned in the following manner : (i) Rs.2,00,000.00 be paid to the appellant No.1 (Shri Dhondulal s/o. Mohanlal Tembhare) with proportionate interest. The claim application is allowed. 16. The respondents are directed to pay to the appellants compensation of Rs.8,00,000.00 along with interest at the rate of 6% p.a. from the date of accident. 17. The amount of Rs.8,00,000.00 be apportioned in the following manner : (i) Rs.2,00,000.00 be paid to the appellant No.1 (Shri Dhondulal s/o. Mohanlal Tembhare) with proportionate interest. (ii) Rs.2,00,000.00 be paid to the appellant No.2 (Smt. Benubai w/o. Dhondulal Tembhare) with proportionate interest. (iii) Rs.4,00,000.00 with proportionate interest be deposited in the name of appellant No.3 (Ku. Kavya d/o. Roshanlal Tembhare) in any nationalized bank till she attains the age of majority. 18. Compensation be deposited by the railway with the Railway Claims Tribunal, Nagpur within a period of twelve weeks from today. No costs.