Awadh Kumar Ray And Ors vs Union of India And Ors

Heard, learned counsel for the parties.

The instant appeal has preferred by the claimants against the dismissal of the claim application dated 20.04.2015 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.TAU/RNC/2003/0031, whereby the claim application of the claimants has been dismissed.

Learned counsel for the appellants, Mr. Ashok Kumar Singh has submitted that deceased- Amola Devi died in an untoward incident which took place on 05.02.2001 while she was travelling from Varanasi to Deoghar by Train No.3006 DN Punjab Mail.

Learned counsel for the appellants has submitted that A.W.(2) Sri Kailash Prasad Ray has categorically stated in his evidence at para 2 & para 3, which are as follows:-

"2) That, in returning journey on: 04.02.2001, we boarded in 2 nd Class compartment of Train No.3006 DN (Punjab - Howrah Mail) at Varanasi for going to Jasidih. From where we had to go to Baijnath Dham, Deoghar for worship God SHIV. All of us had purchased their tickets (separately) for their journey.

3) That, when the train stopped at Simultala Station on 05.02.2001 at about 04:00 hours. Some passengers were detraining and entering there. Unfortunately, Amola Devi fell down from train due to pulling and pushing of fellow passengers. Just then, the train started moving. As a result, she crushed to death on spot."

During cross-examination this witness has categorically stated that -

"यात्रा करने का मेरा टिकट मैं कटाया था लेकिन खो गया अब मैं जमा नहीं कर सकता हूॅं। अकोला देवी मेरी पड़ोसी थी वो पूजा करने जा रही थी। हमें बैठने का सीट मिला था। सुबह 3-4 बजे लोग कहने लगे कि जसीडिह आ गया तो हम और भी लोग वहाॅं उतर गए उतर कर देखा तो वह सिमरतल्ला स्टेशन था। सुबह में अंधेरे के कारण पता नहीं चलता था। जब पता चला कि वो सिमरतल्ला है तो हम फिर टेªन चढ़ गए मैं पहले चढ़ गया था मेरे पीछे वो भी चढ़ गयी थी टेªन भी खुल गयी फिर अचानक वो नीचे गिर गयी। हमने चेन पुलिंग किया टेªन आगे जाकर रूक गयी हमलोग उतर कर पीछे गए तो देखा कि उसका गला कट गया था। "

Learned counsel for the appellants has further submitted that learned Tribunal has wrongly considered the evidence of A.W.(2)- Sri Kailash Prasad Ray such answer has been given as a suggestion given to the witness, which cannot be considered against the appellants.

Learned counsel for the appellants 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 para 29, the deceased was bonafide passenger, which is 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. 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".

In view of the judgment passed by the Hon'ble Apex Court 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 as it was an untoward incident which caused death of Amola Devi, as such, appeal may be allowed with interest.

Paras 14 to 17 and 22 to 24 of Prabhakaran Vijaya Kumar (Supra) 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.

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)

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.

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.

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).

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.

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).

Learned counsel for the respondent- Railways, Mahesh Tewari has opposed the same and submitted that the learned Tribunal has a given detail reason for not granting compensation by relying upon Exhibit-2 which is DRM's report and the investigation made by the Railway police, as such, this case is not a case where the appellants may be granted compensation as the deceased died in an accident, which was not covered under Section 124-A of the Railways (Amendment) Act, as such, this Court may not interfere with the impugned award of the dismissal passed by the learned Tribunal, as she was not a bona-fide passenger and no ticket was recovered.

After hearing learned counsel for the parties and on perusal of the material brought on record, it appears that the learned Tribunal has given a reasoning which is contrary to the material brought on record. The evidence of A.W.2 (Kailash Prasad Ray) who was a co-passenger with the deceased (Amola Devi) sufficiently proves that these persons were residents of Bhagalpur, Bihar and they have boarded at Varanasi for going to Jasidih and from there they had to go to Baijnath Dham, Deoghar for worship of God Shiva and there is no reason that Amola Devi (deceased), a resident of Bhagalpur, Bihar, will cross the Railway track at 4' o Clock in Simultala, a different place far from the place of residence in the District of Bhagalpur, Bihar. The evidence of A.W.2 (Kailash Prasad Ray) clearly shows that they have taken tickets though they were not members of the same family to keep the tickets together rather being neighbour and every passenger was carrying ticket and Amola Devi (deceased) had ticket with herself. In view of the judgment passed by Apex Court in the case of Rina Devi (supra), this Court considered the deceased-Amola Devi, a bona-fide passenger. The deceased was coming from Varanasi to Jasidih and they were travelling and she fell down from the train at 4' o clock in the morning at Simultala, as such, in view of the judgment passed by the Apex Court in the case of Prabhakaran Vijaya Kumar (supra), as referred above, the incident is untoward incident as covered under the definition of Section 123(2)(c) of the Railway Act, as such, this Court is inclined to allow the instant appeal by setting aside the impugned judgment dated 20.04.2015 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, Ranchi in Case No.TAU/RNC/2003/0031.

Accordingly, the instant appeal stands allowed.

The respondent-railways is directed to pay compensation within a period of 90 days 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. However, the claimants/appellants shall not be entitled for any interest during the period when this Misc. Appeal i.e. 04.09.2015 till today i.e. 23.09.2020 as there were several adjournments taken by the learned counsel for the appellants/claimants.