Jang Bahadur Singh vs The Union of India (UOI) and Another

Heard learned Counsel for the parties.

This appeal has been preferred against the judgment and order dated 21.11.1995 passed by the Railway Claims Tribunal, Lucknow Bench, Lucknow in Claim Petition No. TA 900014, whereby the accident claim preferred by the appellant u/s 82A of the Indian Railway Act, 1980 has been refused.

In the claim petition preferred by the appellant, it was averred that his son Ram Naresh Singh was a student of I.T.I., Lucknow and was holding a quarterly railway pass No. 03046 valid from 18.3.1986 to 17.6.1986 for second class between Piparsand Railway Station to Lucknow Railway Station. On the unfortunate day, i.e. 31.5.1986 the said Ram Naresh Singh was travelling by 24 DN Kanpur Express and boarded it from Piparsand for Charbagh Railway Station. The said train met with an accident a little before Charbagh Railway Station in which Ram Naresh Singh, son of the appellant died. Post-mortem of the deceased Ram Naresh Singh was conducted and the appellant received ex gratia amount of Rs. 5,000/- from the Railway Administration. It is claimed that the future of the applicant and his family was dependent on the deceased who was a capable person and had he been alive he would have maintained the family of the applicant.

The respondent North-Eastern Railway contested the claim and denied that the deceased was a bona fide passenger but they admitted that the train in question met with an accident on 31.5.1986 and that the deceased was traveling on the said train. They further added that Ram Naresh Singh was a student and was not an earning member and as such neither the applicant nor his two elder sons, who were alive at the time of accident are not entitled to compensation and they could not be legally held to be dependent of the deceased. It was further averred that the claim was not properly framed and was not maintainable and also was barred by time.

Following five issues were framed by the Tribunal:

Issue No. 1 : Whether Ram Naresh deceased was travelling by the ill fated train as bona fide passenger at the time of accident?

Issue No. 2 : Whether the applicant was wholly or in part dependent on deceased Ram Naresh at the time of his death?

Issue No. 3 : Whether Ram Naresh died as a result of injuries sustained by him in the train accident?

Issue No. 4 : To what amount of compensation, if any, is the applicant entitled?

Issue No. 5 : Whether the claim application is barred by time?

Issue Nos. 1, 3 and 5 were answered in affirmative by the Tribunal. However, the Tribunal held that though the deceased was a bona fide passenger and died due to accident, but the appellant cannot be said to be wholly or in part dependent upon the deceased Ram Naresh Singh at the time of his death. Therefore, the appellant is not entitled for compensation. The Tribunal has also held that the application is not covered u/s 82(c) of Indian Railways Act, 1890.

Learned Counsel for the appellant contended that the Tribunal committed an error in not appreciating the provisions of Section 200(2)(a) of the Indian Railways Act, 1989 which clearly provides that anything done or action taken or purported to have been done or taken (including any proceedings taken) under the repealed Act shall, insofar as it is not in consistent with the provisions of this Act. It also erred in laying much emphasis on Section 200(2)(b) of the Indian Railway Act, 1989 and overlooked the provisions of Section 200(2)(a) of the Indian Railway Act, 1989. As per provisions of Section 200(2)(a), the appellant was a bona fide dependent as per the definition given in Section 123(b)(ii) of the Indian Railway Act, 1989 to make an application as provided u/s 125(d) of the Indian Railway Act, 1989.

Learned Counsel for the appellant vehemently argued that the Tribunal has misconstrued the definition of word ''dependent'' as defined under Workmen''s Compensation Act applying the same as every passenger is a workmen even if he is a minor or student, which is not the intention of the Legislature under Workmen''s Compensation Act. A workman is always in employment and earns emoluments and the intention of the Legislature has not been that if a passenger who is an earning member shall only be entitled for compensation and minors or students or non-earning persons being passengers of a railway train shall not be paid compensation if he dies in a train accident.

To give strength to his arguments, learned Counsel for the appellant has placed reliance upon the judgments rendered in the cases of Kishorebhai Khamanchand Goyal Vs. State of Gujarat and Another, and U.P. Co-operative Cane Unions Federations Vs. West U.P. Sugar Mills Association and Others etc. etc.,

In Kishorebhai Khamanchand Goyal (supra), on which reliance has been placed, the Gujarat High Court has held that the obligation to comply with the requirements of the Establishment Act persisted notwithstanding the enactment of the Central Act. The matter went to the Apex Court and the issue invited before the Hon''ble Supreme Court was to consider whether after the enactment of the Motor Transport Workers Act, 1961, the obligation to comply with the requirements of the Bombay Shops and Establishment Act, 1948 was wiped out. While upholding the judgment of the Gujarat High Court, the Supreme Court observed that in para 10 of the report as under:

If both Acts are made applicable, it will serve workmen the best as the benefit which are not made available to them in the State Act, i.e. Establishments Act and the benefits which are not made available to them in the State Act are made available in the Central Act. By repeal of one, the benefits under the repealed Act stand withdrawn and such benefits are not provided in the existing Act. The workmen by applying the logic of implied repeal will be deprived of such benefits. Both the Acts are enacted for the benefit and well being of workmen and it would be appalling to comprehend a situation that withdrawal of benefit by enacting a statute was contemplated.

On behalf of the respondent, it has been argued that the appellant was rightly held to be not a dependent of deceased Ram Naresh Singh and the Tribunal has given cogent reasons in this regard. The Tribunal has discussed the issues in detail and has rejected the application preferred by the appellant on legally sound grounds. There is no infirmity in the judgment and the same deserves to be affirmed.

He further submitted that the appellant cannot be given benefit of the Indian Railways Act,1989 as the accident had occurred before the coming into force of the said Act. The law prevailing on the date of the accident has to be applied, which the Tribunal did. On the date of accident, the Indian Railways Act, 1989 had not come into force. Under the Old Act the word "dependent" has the meaning as given to it in Clause (d) of Section 2 of the Workmen Compensation Act, 1923. In the instant case, appellant cannot be said to be dependent wholly or in part on the earnings of deceased Ram Naresh Singh at the time of death. In support of his contentions, he has placed reliance upon Maitri Koley and Another Vs. New India Insurance Co. and Others, Ramesh Singh and another Vs. Cinta Devi and others, and The Oriental Insurance Co. Ltd. Vs. Sheela Ratnan and Others, .

Another ground advanced by the learned Counsel for the respondent is that the appellant does not fall under any of the four persons enumerated in Section 82-C of the Indian Railway Act, 1890 to be entitled to move the application. Section 82-C of the Indian Railway Act, 1890 is reproduced hereunder:

82-C. Application for compensation - (1) An application for compensation u/s 82-A arising out of any accident of the nature specified therein [may be made to the Claims Commissioner] -

(a) by the person who has sustained the injury or suffered any loss, or

(b) by any agent duly authorized by such person in this behalf, or

(c) where such person is a minor, by his guardian, and

(d) where death has resulted from the accident, by any dependent of the deceased.

(2) No application for compensation under this Section shall be entertained unless it is made within three months of the occurrence made within three months of the occurrence of the accident, but the Claims Commission may on good cause shown allow any application to be made at any time within one year of such occurrence.

[Explanation. - Where a Claims Commissioner is appointed u/s 82-B with respect to any particular accident or accidents, the references in this Sub-section to the occurrence of the accident shall be construed as references to the date on which the Claims Commissioner so appointed assumes charge of his office.]

[(2-A) If an applicant desires to be paid interim relief u/s 82-HH, he may send to the railway administration a copy of the application made under Sub-section (1) with a request for payment of such interim relief.

(3) If in an application for compensation under this section, any person makes a statement which is false and which he knows or believes to be false or does not believe to be true, he shall be punishable with imprisonment for a term which may extend to three years or with fine, or with both.

Explanation - In this section, [and Section 82-HH] the word ''dependent'' has the meaning assigned to it in Clause (d) of Section 2 of the Workmen''s Compensation Act, 1923 (8 of 1923).

There are certain common law duties as well as the duties imposed under the statute. The claimants are entitled to sue for breach of common law duty or statutory duty. Needless to mention that the railway carries a dangerous activity of running express train and have to use certain caution, skill and care in starting, running and halting, the liability of the Railway is based on perilous nature of the operation.

Section 82-C of the Indian Railways Act 1890 deals with the presentation of application for compensation u/s 82-A of the Act. In the explanation clause the word'' dependent" has the meaning as given to it in Clause (d) of Section 2 of the Workmen''s Compensation Act, 1923. Section 3 of the Workmen''s Compensation Act, 1923 provides for compensation for injuries arising out of and in the course of employment and that compensation is not for negligence on the part of the employer but is a sort of insurance to workmen against certain risks of accidents. Provisions in various Act like Workmen''s Compensation Act, 1923, Section 124-A of the Railways Act, 1989, Section 140 and 163A of the Motor Vehicles Act, 1988, the Public Liability Insurance Act, 1991 etc. are the welfare statutes wherein the principle of strict liability has been provided to give insurance to people against death and injuries irrespective of fault.

In M.C. Mehta and another Vs. Union of India and others, the Hon''ble Supreme Court gone even beyond the rule of strict liability by holding that:

Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher.

Apart from the above, In a recent decision rendered by the Apex Court in Union of India (UOI) Vs. Prabhakaran Vijaya Kumar and Others, the Apex Court observed in paragraph 47 of the report as under:

However, apart from the principle of strict liability in Section 124-A of the Railways Act and other statutes, we can and should develop the law of strict liability dehors statutory provisions in view of the Constitution Bench decision of this Court in M.C. Mehta Case. In our opinion, we have to develop new principles for fixing liability in cases like the present one.

The Tribunal in the impugned judgment has recorded a categorical finding while deciding issue no1. that the respondents had admitted/conceded that Ram Naresh Singh was a bona fide passenger. The Tribunal also recorded a finding that that deceased died as a result of the accident of the ill fated train by which he was travelling from Piparsand to Charbagh Railway Station. The Tribunal however, refused to give compensation only on the ground that in view of the definition of dependent as given in Section 82-C, the appellant cannot be said to be wholly or partly dependent of the deceased Ram Naresh Singh at the time of his death though it was pleaded that he was student and could have in future become a source of support to the family.

We are of the view that when a clear cut finding has been recorded by the Tribunal that deceased Ram Naresh Singh was a bona fide passenger and the train with which he was travelling met with an accident and he died, there was breach of statutory duty and the action can be based on breach of common law duty and breach of statutory duty. When the proceedings were pending before the Tribunal and it gave the impugned judgment, the Railways Act, 1989 was in force and Section 125, which deals with the applications for compensation, provides as under:

125 Application for compensation (1) An application for compensation u/s 124 [ or Section 124-A] may be made to the Claims Tribunal:

(a) by the person who has sustained the injury or suffered any loss, or

(b) by any agent duly authorized by such person in this behalf, or

(c) where such person is a minor, by his guardian, or

(d)where death has result from the accident [ or the untoward incident] by any dependent of the deceased or where such a dependent is a minor, by his guardian.

(2) Every application by a dependent for compensation under this section shall be for the benefit of every other dependent.

Provisions for payment of compensation either under the old Act or under the new Act were inserted as a social piece of legislation with a view to compensate the deceased family due to sudden demise on account of negligent of railways. In other words the intention of legislature was to compensate monetarily as a fixed sum to each victim involved in railway accident and not deprive any one on technical reasons.

In our view, the Tribunal ought to have look into the circumstances together with the provisions of Section 123 and 125 of the Act to advance the cause of justice. Our view is fortified by the judgment of the Apex Court in Prabhakaran'' case [supra].

In Rathi Menon Vs. Union of India, the Apex Court in paragraph 30 of the report held as under:

From all these, we are of the definite opinion that the Claims Tribunal must consider what the Rules prescribed at the time of making the order for payment of the compensation.

Thus, the Tribunal while passing the impugned judgment should have considered the Rules existing at the relevant time to promote justice. We may add that construction of the rule which promotes justice and prevents miscarriage has to be preferred. In other words, the interpretation which is more in consonance with the object of the Act and for the benefit of the person for whom the Act or the provision has been inserted in an Act, should be preferred meaning thereby the liberal and not the literal interpretation should be given. Had the Tribunal applied the Rule as existing at the time of making the order, it would have not resulted in miscarriage of justice to the appellant.

For the reasons aforesaid, the impugned judgment passed by the Tribunal dated 21.11.1995 is hereby set-aside. The Tribunal will go back to the Railway Claims Tribunal, Lucknow Bench, Lucknow, for determining the quantum of compensation payable to the appellant. It may be added that the appellant is litigating for his rights from the year 1986 and as such the ends of justice would be secured, if the Tribunal makes an earnest endeavour to decide the same within a period of six months from the date of production of a copy of this order. 24. The appeal is allowed in above terms.