Geeta Devi vs Union Of India

This order is the culmination of reports and responses secured from all the stake holders containing suggestions for amendment of the principal

enactment, viz., the Railways Act, 1989 and some directions for modifications of statutory Rules and consequently, mandating notifications in the

Government Gazette to give effect to them. While doing so, the written submissions dated 22nd May, 2019 made on behalf of the Chairman, RCT and

the written submissions made by the respondent through Dy. Chief Commercial Manager, have been examined and assimilated to the extent found

suitable.

As Regards Suggestions for Amendments to the Railways Act, 1989

2.1. Among the amendments suggested to the Railways Act, 1989, it is pointed out that the expression “dependant†occurring in Section 123 is

misleading in situations when the deceased is a child and the claimants are the parents. When the deceased person is not an earning member, the

characterization of a parent as ‘dependant’ is clearly a misnomer.

2.2. The expression “legal representatives†is familiar in claims relating to motor accident claims as well. The Motor Vehicles Act, 1988 which

contains provisions for making claims before Motor Accident Claims Tribunal, enable through Section 166 that the claims in cases of deaths can be

made by legal representatives of the deceased.

2.3. As regards Section 124A proviso (b), ‘self-inflicted injury’ occurring in Section 124A is incongruous so as to cause an exception, especially

when “suicide or attempted to suicide†are already excepted under proviso (a). In a scheme of law providing for strict liability against railway

administration, the issue of negligent conduct of the victim has no place. This has been so explained by the Supreme Court in United India Insurance

Co. v. Sunil Kumar, 2018 ACJ 1 in a decision rendered under Motor Vehicles Act. While considering a claim made under Section 163A of the Motor

Vehicles Act, the Supreme Court explained that the said provision relieves the claimant from proving negligence on the part of the respondent driver

of a motor vehicle, who caused the accident. This judgment has been cited by the Supreme Court while interpreting this Section 124A of the Railways

Act, 1989 in Union of India v. Rina Devi, 2018 ACJ 1441 and the Supreme Court ruled that the meaning of “self-inflicted injury†shall include only

acts preceded by intention. In yet another case, in Kalindi Charan Sahoo v. General Manager, South-East Central Railway, Bilaspur, 2018 ACJ 1460

(SC), the Supreme Court explained, while setting aside the order of dismissal by the RCT and the High Court, that death occurring while de-boarding

near Railway Yard before scheduled stop at the Railway platform was to be considered as an ‘untoward incident’. In so doing, the Supreme

Court was setting aside the assumption that such an incident would qualify as ‘self-inflicted injury’. In that view of the matter, the exceptions

under proviso to Section 124A of the Railways Act, 1989 would require to be deleted. Under the circumstances, it is hoped that the respondent

initiates process for suitable amendments to the Act in the manner and in the light of the aforesaid.

As Regards Amendment to Railway Claims Tribunal (Procedure) Rules, 1989

3.1. The constitution of Claims Tribunal through the Claims Tribunal Act, 1987 was with the idea of expediting claims and to provide for a turnkey

solution to the victims of ‘accidents‟ and ‘untoward incidents‟ as defined under the Railways Act, 1989. Rule 5 of the Railway Claims Tribunal

(Procedure) Rules, 1989 prescribes the form of application that shall be filed by the injured victims or the legal representatives (“dependantsâ€) of

the deceased victim of railway accident or untoward incident as the case maybe. An easy, yet exhaustive application that is in a semi optical mark

reading (OMR) format can be easily filled in by the applicant with information gathered through police reports will be a sure tool for processing claims

quickly and busting false and fabricated claims. It will also have a potential for futuristic use for online switch by applicants, receipt of online

applications by the RCT and for disposal online. It is directed that all the applications for compensation in case of death/injury for accident/untoward

incidents shall be filed in Format annexed hereto as Annexure â€" A1.

3.2. The use of technology shall be put to optimum use for service of notice to parties. It is a common place occurrence that considerable time is lost

at this stage of proceedings. Service through electronic mode, apart from postal service is most desirable and keeping in with technological advances

that the Civil Procedure Code takes notice of. The existing Rule 5 (2), (2A) and (3) would require to be substituted.

3.2.1. Substitute existing Rule 5 (2) as follows:-

“An application referred to sub-rule (1) may also be sent by registered post or electronic mail to the office of the Registrar or the Additional

Registrar or the Assistant Registrar, as the case may be, of the Bench concerned.â€​

3.2.2. Substitute existing Rule 5 (2A) as follows:-

“An application sent by post or electronic mail under sub-rule (2) shall be deemed to have been received on the day when the application is

received by the Registrar, Additional Registrar or the Assistant Registrar, as the case may beâ€​.

3.2.3. Insert following Rule 5(3A) after Rule 5 (3):-

“ The application sent by email by the applicant shall also make available hardcopies of the application along with originals or duly certified true

copies of originals of enclosures relied by the applicant by registered post to the Registrar, Additional Registrar or the Assistant Registrar.â€​

As Regards Amendment to the Railway Passengers (Manner of Investigation of Untoward Incident) Rules, 2003

4.1. The Railway Passengers (Manner of Investigation of Untoward Incident) Rules of 2003 are the first trigger to every information that is relevant

for processing a claim. It tasks the Station Master who obtains information regarding death or injury in railway premises, to inform the GRP apart

from filling in details in a register maintained for that purpose at the Station premises. It will give control over the body of the injured victim to the

Police and collect important information about the likely cause for the incident, the eye-witness accounts, the mobile phone call particulars, etc. It puts

the RPF on job to work in tandem with GRP to collect oral and documentary evidence, more importantly, with the work of accessing registers such as

the Train Signal Register (TSR), Guard‟s rough journal or the loco-pilot‟s diary. The Divisional Railway Manager to whom the Divisional Security

Commissioner, RPF reports is empowered to order fresh investigation or affirm the reports of the police, both of the GRP and RPF and make them

available if a claim is made along with the written statement. 4.2. Vide order dated 24th April, 2015, this Court directed the Detailed Accident Report

(DAR Procedure) to be implemented in respect of Railway Accidents and untoward incidents. The format of the DAR was modified and revised vide

order dated 17th May, 2017. Further suggestions have been canvassed on behalf of the respondent. This pertains to the data and vital information that

shall be collected by the Investigation Officer, GRP and the RPF, apart from information that the Hospital records will bear out. These details will

vouch for exhaustive and meticulous investigation that will assure the outcome of investigation to be perfect or as near as one could get at. There is a

clear indication of all the documents that shall be appended along with the report and will be simultaneously uploaded in the website of the GRP, State

Police. The modified Railway Passengers (Manner of Investigation of Untoward Incident) Rules, 2003 as approved, Forms I (Rule 4) and II (Rule 6)

and the approved DAR are annexed herewith as Annexure â€" A2, A3, A4 and A5 respectively.

As Regards Amendment to the Railway Accidents and Untoward Incidents (Compensation) Rules, 1990

5.1. Many of the claimants are drawn from rural areas with low levels of literacy and lower levels of making appropriate decision for the use of

amounts guaranteed under the awards. There are several instances of their exploitation by middlemen and touts operating in the field. The scope for

such exploitation is itself one of the incentives for fomenting bogus claims, fabricated documents and duplicate claims in different Benches of the

Tribunal for the same cause of action. The availability of bulk funds in the name of an ill-informed claimant is also a cause for exploitation. A scheme

for protection of the amount due to such a claimant is the need of the hour. Earlier, this Court has involved 21 Nationalised Banks in dialogue to evolve

a scheme of annuities for disbursement of claims. They have been ordered already to be implemented in this case, vide directions passed on 22nd

February, 2019. This scheme as applied to motor accident claims has been approved by the Supreme Court in its order dated 05th March, 2019 in

Krishnamurthi v New India Insurance Company, SLP (C) No.31521-31522 of 2017. A statutory rule backing will therefore best serve the interest of

the litigant in the manner set out below:

5.2. Insert following Rule 5 after Rule 4:-

“Rule 5: Mode of paymentâ€"(1) The Tribunal may, in order to protect the sum awarded to the claimant, having due regard to the illiteracy or other

disabling factors impairing the judicious use of such sum, issue directions for disbursing the award in terms of annuities, fixed deposits or other suitable

mode as shall subserve justice.

(2) If any of the claimants is a minor or person of unsound mind, the Tribunal may give liberty to the guardian ad litem to use the interest accruals on

the deposit that shall be made during the minority for maintenance.

(3) Nothing in this Rule shall limit the power of the Tribunal to make modifications of the mode of disbursal for reasons to be stated in writing

depending on the exigencies requiring liquidation of any corpus created for annuity or premature closure of fixed deposit, for the benefit of the

claimant.â€​

Amendment in Railway (Notices of and Enquiries into Accidents) Rules, 1998

6.1. The Railway (Notices of and Enquiries into Accidents) Rules of 1998 sets an agenda for statutory enquiry into cause of any railway accident so

that the preventive actions can be taken after recommendation of expert committees. The existing Rules contemplate information of an accident to be

shared with the Railway Board, a protocol for providing medical aid and speedy restoration works for resumption of train services. These rules shall

be further strengthened by providing legal aid to victims of accidents and further enable compensation amounts to be paid by a simple and seamless

procedure.

6.2. Add following Rule 9A after Rule 9:-

“(i) The reports containing the names and addresses of the injured victims or persons deceased shall be dispatched to the Principal Bench of the

Railway Claims Tribunal. Wherever the names of next of kin of the deceased passengers are known, the said information shall also be furnished to

the Principal Bench of the Railway Claims Tribunal.

(ii) Legal aid to claimants or victims of accidents: - It shall be the duty of the Railway Administration to forward the names of injured victims or the

persons who died in a railway accident to the Principal Bench of the Railway Claims Tribunal for rendering appropriate legal aid for obtaining

compensation in the manner provided under the Railway Claims Tribunal Act and to that end, wherever information is available, the names of the next

of kin shall also be furnished to the Principal Bench of the Railway Claims Tribunal.â€​

6.3. Legislative amendments to the Central enactment shall be prerogative of the Parliament and hence the suggestions contained in this order shall be

viewed as such and the respondent shall endeavour to initiate the process in an appropriate way for bringing to fruition the changes. As far as the

modifications as regards the Rules which are within the executive domain, since they are issued after eliciting the views of the respondent including

the principal officer of the Railway Claims Tribunal, it is expected that these changes are notified in the Government Gazette after following the usual

procedure for public notice and publication.

These directions be implemented w.e.f. 1st July, 2019.

List for reporting compliance and hearing on merits of the case on 19th July, 2019.

This Court appreciates valuable assistance rendered by Mr. Brijesh Kumar Shukla, Advocate and Mr. Joydeep Mazumdar, Advocate in this matter.

Copy of this judgment be given dasti to counsel for the parties under the signatures of the Court Master.