Kishori Kumar @ Kishori Ram & Ors vs Union Of India

Heard, learned counsel for the parties.

Appeal has been preferred against the judgment dated 17.12.2018 passed by learned Railway Claims Tribunal, Ranchi Bench, Ranchi in Case

No.OA(IIU)/RNC/108/2018 whereby the claim application has been dismissed.

Learned counsel for the appellant has submitted that claimants namely, (1) Kishori Kumar @ Kishori Ram, (2) Suraj Kumar, (3) Chanda Kumari, (4)

Sitara Kumari, (5) Khushi Kumari and (6) Shalu Kumar being the husband, sons and daughters of the deceased (Sima Devi), who fell down from train

Bhabua-Patna via Gaya Intercity Express Train No.3244 DN and incident occurred on 27.05.2017 near East of Kudra Railway Station between Pole

No.97/22 and 20.

Learned counsel for the appellant has submitted that journey ticket of the deceased was lost in the incident but it is apparent from the inquest report

that deceased fell down from a running train.

Learned counsel for the appellant has further submitted that appellant ( Kishori Kumar @ Kishori Ram) has filed affidavit stating in paras 1 and 2,

which are as follows:-

(1) ◌ ;2 27.05.2017

0 ◌ ª

3244 ª

Learned counsel for the appellant has thus submitted that that his wife was travelling on the train on the basis of a valid ticket.

Learned counsel for the appellant has further submitted that in view of the said affidavit of the appellant the deceased was a bona-fide passenger and

no contrary evidence has been brought on record by the Railway 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 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 appellant has further submitted that in that view of the matter the deceased was a bona-fide passenger and the incident falls

under the untoward incident as defined under Section 123(c)(2) of the Railway Act 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, paras14 to 17 and 22 to 24, 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 respondent has submitted that LCR of this case may be called for so as to adjudicate the appeal.

Considering the same, let the LCR be called for in connection with Case No.OA(IIU)/RNC/108/2018 from the court of learned Railway Claims

Tribunal, Ranchi Bench, Ranchi at once.

Let the case be listed after physical court starts.