Kavita Devi And Ors vs Union of India

I.A. No.6888 of 2019 Learned counsel for the appellants has submitted that there is delay of 108 days in preferring the appeal and the reason has

been explained in I.A. and considering the holistic view of the matter as well as merit of the appeal, the delay may be condoned as if the delay is not

condoned in such a benevolent legislation irreparable loss will be caused to the appellants. Learned counsel for the respondent has opposed the prayer

and submitted that there is long delay of 108 days in filing the appeal and delay has also not been properly explained by the claimants/appellants, as

such, after delay of such a long time it would not be proper to interfere with the finding recorded by the learned Tribunal, as such, delay may not be

condoned and the appeal itself is liable to be dismissed.

Considering the submissions of the parties, this Court is inclined to condone the delay of 108 days in preferring the appeal. Accordingly, delay of 108

days in preferring the appeal is hereby condoned.

I.A. No.6888 of 2019 stands disposed of.

M.A. No.29 of 2019 Heard, learned counsel for the parties.

Learned counsel for the appellants has submitted that learned Tribunal has wrongly dismissed the claim application contrary to the material brought on

record. The written report has been submitted by Khemant Mani before the Officer-in-charge, Government Rail Police, Koderma, wherein it has been

stated by Khemant Mani that Mate Pradeep Kumar Singh disclosed before him that unknown dead body is lying on Koderma-Gajhandi UP railway

track near pole no.394 (27-29) because of fall from unknown running train. Learned counsel for the appellants has relied upon the Annexure-3,

affidavit sworn by Kavita Devi, W/o deceased Naresh Singh of which paras 2 to 7 have been referred to which are as follows:-

07.02.2017 ª

◌

0

00 0 4.

0 0 5.

7 6.

◌ 7.

- 0 0 1 25 2. 07 3.

05 4. 03 5. 50 6. 50

 Learned counsel for the appellants has further submitted that deceased was a bona-fide passenger as nothing contrary has been brought on record

by the Railway. in view of the evidence brought by claimant- Kavita Devi and in view of the judgment passed by the Apex Court in the case of Union

of India vs. Rina Devi, reported in (2019) 3 SCC 572 at para 29, which is quoted hereunder:-

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."".

Learned counsel for the appellants has further submitted that claim application was filed within time but the same has been dismissed and the learned

Tribunal has not discussed the other issues, as such, appeal may be allowed considering it to be an untoward incident as defined under Section 123(c)

(2) of the Railways Act and in view of the judgment of Hon'ble Apex Court in the case of Union of India vs. Prabhakaran Vijaya Kumar, reported in

2008(9) SCC 527, paras 14 to 17 and 22 to 24 of which are profitably quoted hereunder:-

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 appellants has further submitted that occurrence is of dated 07.02.2017 and the claim application was filed on 02.03.2017, as

such, the claimants are entitled for compensation in view of the amended Rule which has been made with effect from 01.01.2017 to the tune of Rs.8

lacs along with interest in view of the judgment passed by the Hon'ble Apex Court in the case of Thazhathe Purayil Sarabi and others vs. Union of

Indian and another, reported in 2009(7) SCC 372 at para 38, which is profitably quoted hereunder:-

As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period in which the

same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest

whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on

money claims.

Learned counsel for the respondent has submitted that Voter I.D Card, Aadhar Card, ATM Card and passport size photo have been recovered, but

curiously enough the ticket could not be recovered from the body at the time of the inquest which has been considered by the Railway Claims Tribunal

for refusing the claim by considering the deceased (Naresh Singh) not to be a bona-fide passenger as defined under Section 2(29) of the Railways

Act, as such, this Court may not interfere with the finding recorded by the learned Tribunal.

Considering the rival submissions of the parties and perusing the material brought on record including the evidence of the claimant- Kavita Devi

particularly at para 6 and in view of the judgment passed by the Hon'ble Apex Court in the case of Rina Devi (Supra) and considering that no contrary

evidence has been brought on record by the Railways, this Court is inclined to consider the deceased (Naresh Singh) to be a bona-fide passenger, in

view of the fardbeyan of the Railway gang man based upon disclosure made by the mate, which has been brought on record by the appellants as

Annexure-2, the incident is untoward incident as defined under Section 123(c)(2) of the Railways Act. Since no finding has been given by the Railway

Claims Tribunal on this issue, this Court considers it to be an untoward incident.

Accordingly the instant appeal is hereby allowed. The respondent-railways is directed to pay compensation within a reasonable time 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.