Kavita wd/o Sanjay Awachare vs Union of India

The question that arises for determination in this

appeal is, as to whether the death of the husband of appellant

no.1 occurred on account of "untoward incident" within the

meaning of Section 123(c) read with Section 124-A of the

Railways Act, 1989. The appellant no.1 being the widow,

appellant nos. 2 to 4 being the children and appellant no.5

being the mother of the deceased had filed a claim petition

under the provisions of the aforesaid Act claiming

compensation for the death of Sanjay Awachare (deceased) on

30.03.2012, when he accidentally fell down from a running

train while travelling from Bodwad to Bhusawal. The claim

petition has been dismissed by the Railway Claims Tribunal,

Nagpur, on the ground that the claimants have failed to prove

that the death occurred on account of "untoward incident" as

defined under the provisions of the said Act.

On 30.03.2012 at about 3 p.m. a memo was issued to

the Police Inspector, Bodwad Police Station by the Deputy

Station Superintendent of Bodwad Railway Station stating that

driver of a goods train had informed that body of an unknown

person was lying on the railway track at the spot of the incident

between Bodwad and Bhusawal. On the basis of the said

memo, a report of accidental death was recorded under

Section 174 of the Code of Criminal Procedure at about 5.30

p.m. on 30.03.2012. An inquest panchanama and spot

panchanama were prepared on the same day and the body

was sent for post mortem examination. While the spot

panchanama recorded that the body of the deceased was sent

to the Rural Hospital, Bodwad, there was nothing found at the

spot of the incident for being seized, but, the inquest

panchanama of the body recorded the details of the clothes on

the body of the deceased and the fact that a ticket bearing No.

54070614 was found in the pocket of the pant of the deceased.

On the basis of the said incident, the appellants filed

claim petition before the Railway Claims Tribunal, Nagpur,

praying for grant of compensation in terms of the provisions of

the said Act. The ticket dated 30.03.2012 found from the body

of the deceased and other documents, including inquest

panchanama, spot panchanama and post mortem report, were

placed on record before the Tribunal. The appellant no.1,

being the widow of the deceased, appeared as witness no.1 in

support of the claim petition and father of the deceased

appeared as witness no.2. The Deputy Station Superintendent

of Bodwad Railway Station appeared as witness on behalf of

the respondent, Union of India, through the General manager,

Central Railway.

The Tribunal passed its judgment and order on

06.08.2015 dismissing the claim petition/application of the

appellants. The tribunal held that the claimants/appellants had

failed to produce sufficient oral and documentary evidence on

record to prove that the deceased had died on account of

"untoward incident" within the meaning of Section 123(c) read

with Section 124-A of the said Act. It was held that when this

basic requirement was not proved, the claim of compensation

could not be considered on merits at all. The tribunal held that

the evidence on record was not enough to show that the

deceased had fallen from running train and that therefore,

when the basic ingredients for proving the "untoward incident"

were not proved, no relief could be granted to the claimants.

Aggrieved by the said judgment and order of the Tribunal, the

appellants have filed this appeal.

Mrs. M.P. Kshirsagar, learned counsel appearing on

behalf of the appellants submitted that the approach adopted

by the tribunal in the impugned judgment and order was not

only erroneous but that it was hyper technical in nature. It was

submitted that when the ticket recovered from the body of the

deceased was on record, which was also mentioned in the

inquest panchanama, the emphasis placed by the tribunal on

the spot panchanama showing lack of recovery or seizure of

property, was wholly erroneous. It was submitted that the oral

and documentary evidence on record was misconstrued by the

tribunal rendering the impugned judgment and order

unsustainable. It was further submitted that the view taken by

the tribunal deserved to be reversed and in view of Gazette

Notification dated 22.12.2016 issued by the respondent, the

appellants deserved enhanced compensation of Rs.8,00,000/-

under the provisions of the said Act. The learned counsel for

the appellants placed reliance on the judgments of the Hon''ble

Supreme Court and this Court in the case of Rathi Menon

.vs. Union of India - (2001) 3 Supreme Court Cases 714,

Union of India .vs. Prabhakaran Vijaya Kumar -(2008) 9

Supreme Court Cases 527, the judgment and order dated

20.06.2017 (Dilip Madhukar Ogle and others .vs. Union of

India) passed by this Court in First Appeal No. 145/2010

and judgment and order dated 01.07.2017 (The Union of

India .vs. Dhurpatabai Kondiba Gomsale and another)

passed by this Court in First Appeal No. 305/2010.

Per contra, Mr. N.P. Lambat, learned counsel

appearing on behalf of the respondent submitted that the

impugned judgment and order passed by the Tribunal did not

deserve interference because it was based on proper

appreciation of the oral and documentary evidence on record.

It was submitted that the material on record was insufficient to

come to a conclusion that the victim had died because of an

"untoward incident" as defined under the provisions of the said

Act. It was submitted that there were no eyewitness to the

incident and it could not be said that the deceased had fallen

from a running train when the incident occurred. The learned

counsel appearing for the respondent placed reliance on order

dated 01.02.2017 (Kamrunnissa .vs. Union of India) passed by

the Hon''ble Supreme Court in Special Leave to Appeal (Civil )

No. 26625 of 2015 and order dated 25.04.2017 (Kalandi

Charan Sahoo and another .vs. General Manager, South-East

Central Railways Bilaspur ) passed by the Hon''ble Supreme

Court in Civil Appeal No. 5608/2017 as also order dated

25.08.2017 passed in M.A. No. 411/2017 in Civil Appeal No.

5608/2017 ( Kalandi Charan Sahoo and another .vs. General

Manager, South-East Central Railways Bilaspur ).

Having heard the learned counsel for the parties and

upon perusal of the evidence and material on record, two

points arise for determination in this appeal, firstly, whether

the tribunal was justified in holding that appellants were not

entitled for compensation because it was not established that

the victim had died on account of "untoward incident" under

Section 123(c) read with Section 124-A of the said Act and

secondly, if so, whether the appellants were entitled to

compensation of Rs.8,00,000/- under the provisions of the said

Act, in terms of the Gazette Notification dated 22.12.2016

issued by the respondent or they were entitled only to

Rs.4,00,000/- as provided under the unamended Rules

existing prior to the aforesaid Gazette Notification.

A perusal of the evidence and material on record

shows that the body of the deceased was found lying on the

Railway track and its intimation was given by the Deputy

Station Superintendent of Bodwad Railway Station to the

Police at about 3 p.m. on 30.03.2012. In pursuance of the

same, a report of accidental death was recorded at about 5.30

p.m. and inquest panchanamna of the body was conducted

between 6 p.m. and 6.45 p.m. and spot panchanama was

recorded between 7 p.m. and 7.30 p.m. The tribunal has

wrongly recorded in paragraph 9 of the impugned judgment

and order that the spot panchanama was prepared between 5

p.m. and 5.30 p.m. A perusal of the spot panchanama shows

that in paragraph 18, pertaining to description of place of

occurrence, it was recorded that the body of the deceased was

sent to Rural Hospital at Bodwad and that at the spot of the

incident nothing was found worth seizing. It is further found in

the spot panchanama that paragraph 12 pertaining to

description of physical evidence from the scene of crime for

the property recovered/seized for the purpose of investigation,

is blank. A perusal of the inquest panchanamna shows that in

paragraph 25, apart from recording the details of clothes found

on the body of the deceased, it is recorded that ticket no.

54070614 was found in the pocket of the pant. The said ticket

was indeed placed on record before the tribunal and a perusal

of the same shows that it was issued at 12.17 p.m. on

30.03.2012.

The tribunal has analysed the aforesaid material on

record to arrive at the conclusion that since paragraph 12 of

the spot panchanama was blank, the seizure of the ticket

recorded in the inquest panchanama was not believable. It is

held by the tribunal that since there is no eyewitness to show

that the deceased had indeed purchased the said ticket and

because recovery of other articles, apart from the ticket, has

not been mentioned in the spot panchanama, the said ticket is

manipulated and procured in connivance with unscrupulous

elements. The tribunal has held that since nothing was

recorded to have been seized in the spot panchanama, it was

intriguing that only journey ticket was found on the body of the

deceased. The aforesaid findings of the Tribunal appear to be

based on erroneous appreciation of the evidence and material

on record. The Tribunal has erred in placing emphasis on

paragraph 12 of the spot panchanama being blank and that

seizure of the ticket was not recorded therein. It has also

erred in holding that since there was no eyewitness to the fact

that the deceased had actually purchased the said ticket or

that the appellant no.1, in her cross-examination stated that

the wallet of the deceased was given to her by the Police, it

was evident that the aforesaid ticket and its recovery were

manipulated. The said findings of the tribunal are

unsustainable because the ticket purchased at 12.17 p.m. on

30.03.2012 was very much produced on record in the

evidence. The inquest panchanama clearly recorded that it

was seized or recovered from the pocket of the pant that was

worn by the deceased. Merely because the seizure of the same

was not mentioned in the spot panchanama, would not render

the same suspicious. In fact, in paragraph 8, it is recorded in

the spot panchanama that the body of the deceased was

already sent to the Rural Hospital Bodwad and that, therefore,

there was nothing worth seizure found at the place of incident.

The approach of the Tribunal is not only erroneous but hyper

technical, because it cannot be that in all such cases of claims

filed before the Railway Claims Tribunal there would be an

eyewitness to the actual fact of purchase of journey ticket by

the deceased. In this case, the time of issuance of ticket,

stated on the ticket, which was placed on record and which

was recovered from the body of the deceased, clearly

demonstrated that the deceased was indeed travelling

between Bodwad and Bhusawal at the time of the incident.

The tribunal has further held that the appellants

failed to prove that the death of the victim had occurred due to

untoward incident within the meaning of Section 123(c) read

with Section 124-A of the said Act. In order to arrive at the said

conclusion, the tribunal has held that there was no eyewitness

to show that the deceased had actually fallen from running

train, that the distance between Bodwad and the place of the

incident was only 3 km and that there was no statement in the

claim petition that the deceased fell from the running train due

to jerk. The Tribunal also analysed the medical evidence,

including the post mortem report, to hold that the nature of

injuries were such that it could not be said that the deceased

had indeed fallen from a running train.

The reasoning adopted by the tribunal while reaching

the said conclusion is not in accordance with the law laid down

in the context of the provisions of the said Act. In the case of

Union of India .vs. Prabhakaran Vijaya Kumar (supra),

the Hon''ble Supreme Court has held that where two

constructions or interpretations are possible on the basis of

material on record, the one which is more in consonance with

the object of the Act and for the benefit of the persons for

whom the Act was made, should be preferred. It was held that

since the provision for compensation in the Railways Act was a

beneficial piece of legislation, it should receive a liberal and

wider interpretation and not a narrower and technical one. The

relevant portions of the said judgment are as follows:-

"11. No doubt, it is possible that two interpretations can be given to the expression ''accidental falling of a passenger from a train carrying passengers'', the first being that it only applies when a person has actually got inside the train and thereafter falls down from the train, while the second being that it includes a situation where a person is trying to board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow and technical one. Hence in our opinion the latter of the abovementioned two interpretations i.e. the one which advances the object of the statute and serves its purpose should be preferred vide Kunal Singh vs. Union of India (2003) 4 SCC 524(para 9), B. D. Shetty vs. CEAT Ltd . (2002) 1 SCC 193 (para 12) and Transport Corporation of India vs. ESI Corporation (2000) 1 SCC 332 etc.

It is well settled that if the words used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation vide Alembic Chemical Works Co. Ltd. vs. The Workmen AIR 1961 SC 647( para 7), Jeewanlal Ltd. vs. Appellate Authority AIR 1984 SC 1842 (para 11), Lalappa Lingappa and others vs. Laxmi Vishnu Textile Mills Ltd . AIR 1981 SC 852 (para 13), S. M. Nilajkar vs. Telecom Distt . Manager (2003) 4 SCC 27(para 12)."

Thus, the Hon''ble Supreme Court has taken a liberal

view and it has been laid down that if a restricted meaning is

adopted in interpreting Section 123 (c) of the said Act, it would

amount to depriving a large number of railway passengers

from getting compensation in railway accidents. Applying the

aforesaid position of law to the facts of the present case, it

would be evident that the Tribunal has taken a hyper technical

view in the matter and the evidence and material on record

has not been properly construed while dismissing the claim

petition of the appellants. In my opinion, there was sufficient

material on record to show that the deceased was travelling on

the railway ticket placed on record and that his death did

occur while travelling in the train and that the appellants were

entitled for compensation under Section 124-A of the said Act.

The reliance placed by the learned counsel appearing

for the respondent on order dated 01.02.2017 passed by the

Hon''ble Supreme Court in Kamrunnissa .vs. Union of India

(supra) is misplaced, because the same is distinguishable on

facts. In the said case, there was no ticket recovered from the

body of the deceased and therefore, there was proof of the fact

that the deceased met with an accident while travelling in a

train. As regards the medical evidence on record and the

condition of the body of the deceased, the Tribunal has erred in

concluding that such injuries and condition of the body of the

deceased could not have been found if he would have fallen

from a moving train. I do not find any substance in the said

conclusion because it is very much possible for a person to fall

from a moving train and his body being cut to pieces upon

being run over by a moving train.

Having found that the Tribunal was not justified in

dismissing the claim petition of the appellants, the second

aspect that remains to be decided is, the quantum of

compensation to which the appellants are entitled. The

learned counsel appearing on behalf of the appellants has

placed on record Gazette Notification dated 22.12.2016, issued

by the respondents, whereby the Railway Accidents and

Untoward Incidents (Compensation) Rules, 1990 have been

amended and instead of compensation of Rs.4,00,000/-payable

in cases of death, the same has been substituted by an amount

of Rs.8,00,000/-. It is submitted on behalf of the appellants

that they are entitled for such enhanced quantum of

compensation.

In this regard, a similar question had arisen in the

case of Rathi Menon .vs. Union of India (supra) wherein the

claimants had claimed similar enhanced compensation when,

by a similar amendment, the quantum was increased from

Rs.2,00,000/- to Rs.4,00,000/- with effect from 01.11.1997. The

incident in the said case had occurred on 03.09.1996 when the

lesser amount of compensation was payable under the Rules,

but, the tribunal had granted the higher amount consequent to

the amendment which came into effect from 01.11.1997. This

was reversed by the High Court on the ground that the

claimant was not entitled to the enhanced amount, because

the incident had occurred prior to the amendment coming into

effect. When the claimant approached the Hon''ble Supreme

Court against the order of the High Court, it was held by the

Hon''ble Supreme Court that the view of the High court was not

sustainable. It was held that the use of the words "as may be

prescribed" in Section 124-A of the Act ought to be understood

to mean "as may be prescribed from time to time" in the

context of payment of compensation. It was also held that

even if such amendment came up after the Tribunal had

determined the amount of compensation and the matter was in

appeal, the claimant was entitled to the enhanced quantum of

compensation, pursuant to the amendment. The relevant

portion of the said judgment of the Hon''ble Supreme Court

reads as follows:-

"23. The collocation of the words as may be prescribed in Section 124A of the Act is to be understood as to mean as may be prescribed from time to time. The relevance of the date of untoward incident is that the right to claim compensation from the Railway Administration would be acquired by the injured on that date. The statute did not fix the amount of compensation, but left it to be determined by the Central Government from time to time by means of rules. This delegation to the Central Government indicates that it was difficult for the Parliament to fix the amount because compensation amount is a varying phenomenon and the Government would be in a far advantageous position to ascertain what would be the just and reasonable compensation in respect of a myriad different kinds of injuries by taking into account very many factors. What the legislature wanted was that the victim of the accident must be paid compensation and the amount must represent a reality which means the amount should be fair and reasonable compensation. Government have the better wherewithals to ascertain and fix such amount. It is for the said reason that the Parliament left it to the Government to discharge that function. Sections 124 and 124A of the Act speak the same language that the Railway Administration shall be liable to pay compensation. As pointed above, it is the liability of the Railway Administration to pay compensation to such extent as may be prescribed. Hence the time of ordering payment is more important to determine as to what is the extent of the compensation which is prescribed by the rules to be disbursed to the claimant.

xxxx

The unjust consequence resulting from the interpretation which the Division Bench placed can be demonstrated in another plane also. If a person who sustained injury in a

railway accident or in an untoward incident was disabled from making an application immediately and he makes the application a few years hence, is he to get the compensation in terms of the money value which prevailed on the date of the accident? Suppose a Tribunal wrongly dismissed a claim after a few years of filing the application and the claimant approaches the High Court in appeal. As it happens quite often now, some High Courts could take up such an appeal only after the lapse of many years and if the appeal is decided in favour of the claimant after so many years, what a pity if the amount awarded is only in terms of the figure indicated on the date of the accident."

The aforesaid judgment of the Hon''ble Supreme

Court has been followed by this court in numerous judgments,

including judgment and order in First Appeal No. 145/2010

(Dilip Madhukar Ogle and others .vs. Union of India)

and in First Appeal No. 305/2010 (The Union of India

.vs. Dhurpatabai Kondiba Gomsale and another). In fact,

in the case of First Appeal No. 305/2010 this Court has held in

an appeal filed by the Union of India against the compensation

of Rs.4,00,000/- granted by the Tribunal that, even in the

absence of an appeal preferred by the claimants for enhanced

compensation, in view of the aforesaid Gazette Notification

dated 22.12.2016, the claimants were entitled to such

enhanced compensation of Rs.8,00,000/-. These judgments

are a complete answer to the contentions raised on behalf of

the respondent that the benefit of Gazette Notification dated

22.12.2016 would be available only to victims of accidents

that may occur after 01.01.2017 as it is stated in the said

notification that the amendment of the relevant Rules shall

come into force from 01.01.2017. In fact, the reliance placed

by the learned counsel appearing on behalf of the respondent

on the order dated 25.04.2017 passed by the Hon''ble Supreme

Court in Civil appeal No. 5608/2017 and order dated

25.08.2017 passed in M.A. No. 411/2017 in Civil Appeal No.

5608/2017, is misplaced because there is no discussion in the

said orders regarding the position of law as enunciated in the

aforesaid judgment of the Hon''ble Supreme court in the case of

Rathi Menon .vs. Union of India (supra).

In the light of the above, it is evident that the

appellants deserve to succeed on both counts i.e. firstly the

fact that they have successfully proved their entitlement to

compensation under the provisions of the said Act, due to the

death that occurred in an "untoward incident" and secondly

that they are entitled to compensation of Rs.8,00,000/- as per

the latest amended Rules brought into force by the Gazette

Notification dated 22.12.2016.

Accordingly, this appeal is allowed. The impugned

judgment and order dated 06.08.2015 passed by the tribunal is

quashed and set aside and it is held that the appellants are

entitled to compensation of Rs.8,00,000/- with interest @ 7.5 %

P.A. from the date of filing of the claim petition before the

Tribunal. There shall be no order as to costs.