Premlabai And Ors vs Union Of India

Present appeal has been filed by the original applicants, challenging the judgment and award passed in Claim Application No.

OA(llu)/NGP/210/2016, passed by learned Railway Claims Tribunal, Nagpur Bench, on 15Â02Â2018, whereby the claim for compensation filed by

them came to be dismissed. [Parties are referred as per their nomenclature before the Tribunal.]

Present appellants/ original applicants had claimed that they are the legal heirs of one Ramlu Gangaram Renalwar. Applicants had filed the petition

for compensation on account of death of Ramlu in an untoward incident alleged to have occurred on 18Â09Â 2016. All the applicants and deceased

Ramlu had boarded AdilabadÂParli passenger, Train No.57554 from Kinwat Railway Station. They all had bought tickets. He stood near the door of

the compartment, when the train was running. When the train was between Kinwat and Bodhadi railway station, due to sudden jerk to the running

train, he was thrown out and fell down from the running train. He died on the spot. Hence, the applicants are claiming compensation.

The respondent  railway contested the claim. It was contended that incident narrated in the application can not be considered as 'untoward

incident' defined under Section 123(c) of the Railways Act, 1989. It was stated that no such incident causing death of Ramlu, within the meaning of

Section 124(a) of the Railways Act had taken place and, therefore, the claim application itself is not maintainable. Other averments in the application

have been denied. It was specifically contended that the applicants are not entitled to get any amount of compensation.

Taking into consideration the rival contentions, parties have led oral as well as documentary evidence. After hearing both sides, the learned

Tribunal has come to the conclusion that the applicants as well as Ramlu were not bona fide passenger of the train on the relevant day. So also, it was

held that applicants have failed to prove that Ramlu expired in an untoward incident. Therefore, as aforesaid, the claim application was dismissed.

Hence, present appeal.

Heard learned Advocate Mr. P.S. Agrawal appearing for the applicants.So also, heard learned Advocate Mr D.V. Soman appearing for the

respondent.

It has been vehemently submitted on behalf of the applicants, that the applicants produced the original ticket No. 30320104 purchased by applicant

No. 1 for himself and he has deposed that he had kept his ticket in his pocket; whereas ticket of deceased was with deceased in his pocket.

Therefore, they were bona fide passengers. In fact, when they had entered the railway station platform, they were supposed to take ticket and the

railway authorities had not detected them as a passenger travelling without ticket. Therefore, an inference can be drawn that they was travelling with

valid ticket. Merely because the ticket was not found on the dead body of Ramlu, will not infer that he had not bought ticket. Learned Tribunal has

taken a wrong view that if the ticket would have been purchased, and AW 1 was present at the time of postmortem, then he would have made a

statement to that effect before police as well as before Medical Officer. Unnecessarily, importance has been given to the report of DRM. The

decision has been unnecessarily stretched to the extent that the ticket which has been produced on record is manipulated, for which there was no

evidence. In order to support his submissions, the learned Advocate for applicants has relied on the decision in Union of India Vs. Prabhakaran Vijaya

Kumar & others [AIR 2009 SC (Supp.) 383,] wherein it has been held that ""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."" Further, in Union of

India Vs. Bimala wd/o. Pintho Tudu & others [2012(3) Mh.L.J. 883], this High Court, Bench at Nagpur, has held that ""Fact that the deceased was not

detected as passenger travelling without ticket, would give rise to an inference that he was travelling with valid ticket. Unless the negative is proved or

there is evidence, may be, circumstantial in nature, that the deceased was not holding valid ticket, it would be desirable, to presume that deceased was

authorised passenger."" Further, in Union of India Vs. Nandabai w/o. Sheshrao Dangat & others [2015(6) Mh.L.J. 295], this Court, Bench at Nagpur,

has observed, that ""Merely because railway ticket was not recovered from dead body, it cannot be said that deceased was travelling without ticket.

Possibility that ticket may have been lost during course of untoward incident cannot be ruled out and, therefore, presumption need to be drawn that the

deceased was a bona fide passenger."" Similar view was taken in Union of India Vs. Hari Narayan Gupta & another [AIR 2007 Rajasthan 38], Smt.

Vaishali Wd/o. Nitesh Bhalerao Vs. Union of India [2010(5) ALL MR 726], Maniben Paljibhai Parmar Vs. Union of India [MANU/MH/1494/2004].

Learned Advocate for the applicants has further submitted that the learned Tribunal has wrongly held that there was no untoward incident, as it was

not reported to the Guard of the Train. The evidence of railway employees has been believed on that count. Tribunal has accepted the position that the

dead body of Ramlu was found on railway track and postmortem report shows that he died to accidental injuries. It was also observed that Ramlu had

sustained injuries due to hit or dash by a Train. However, conclusion is drawn that still the death may not be due to untoward incident. Learned

Tribunal has taken a wrong view.

Per contra, learned Advocate representing the respondent has supported the reasons given by the Tribunal and submitted that when immediately

after the accident, when RW 01 Gopalkumar there was no alarm, chain pulling or any unexpected jerk and even there was no rush in the train. RW 2

Âthe station master of the station has also stated that no untoward incident was reported on that day to him. If the incident had occurred as narrated

by applicants, then they ought to have reported the said fact to the appropriate authorities. The testimony of these persons has been rightly believed by

the learned Tribunal. In fact, as per the report of D.R.M., there was no unexpected jerk or untoward incident. Ramlu had not taken ticket. In fact, that

is an offence under the Railways Act. The said accident occurred due to the negligence on the part of the deceased himself for which the railway is

not responsible to compensate. In order to support his contentions, he relied on the decision in Geeta & others Vs. Union of India [2013 SCC OnLine

Del. 2168] and Gurcharan Singh & others Vs. Union of India [2014 SCC OnLine Del. 101] and further in Jamirul Nisha & another Vs. Union of India

[2008 SCC OnLine Del. 320]. In all these cases, after considering the similar facts, the Delhi High Court had come to the conclusion that the applicant

was a bona fide passenger, however, the factum of his death / injury has not been proved in an untoward incident. In that case, deceased / injured had

tried to alight from running train.

Taking into considering the rival contentions, following points are arising for determination. Findings and reasons for the same are as follows :Â​

(I) Whether the deceased was a bona fide passenger on the date of the incident ?

(II) Whether the deceased died in an untoward incident, as contemplated under Section 123(c) of the Railways Act, 1989?

(III) Whether the applicants are entitled to get compensation ? If yes, to what extent ?

All the points are taken up together for discussion for the sake of convenience and to avoid repetition.

First of all it is required to be considered as to whether the deceased can be said to be a bona fide passenger of the train. It can be seen that a

ticket has been produced at Exhibit AÂ1. AW 1 Ravi has stated that it was his ticket. He has also stated that deceased had purchased ticket was

carrying with him. No doubt, the report says that no ticket was found on the dead body, yet Tribunal has come to the conclusion that the ticket

produced on record is manipulated. In fact, there was no evidence led by Railway on that point. In what manner the said ticket was manipulated has

not been contended. It is not on record that the series of the ticket was not the same, on that day. In absence of such evidence of manipulation, it will

have to be inferred that it is validly issued. When the applicants have stated that they had purchased the ticket and then one of the ticket has been

produced on record, in fact, the learned Tribunal ought to have held that Ramlu was a bona fide passenger. However, it appears that the learned

Tribunal unnecessarily went to discuss that when the Guard and station master have stated that there was no reporting of untoward incident or

unexpected jerk, then there was no untoward incident.

The ratio laid down in the authorities those have been cited by the learned Advocate for the applicant are definitely applicable here. When the

deceased was not caught by Ticket Collector for travelling from the train without ticket, there is room to believe that he had bought valid ticket. In

respect of authorities relied by the respondent, the facts before the Delhi High Court, would not show that the applicants therein had produced on

record a ticket. Here, the facts are different. It can be concluded that there was error on the part of the Tribunal to come to the conclusion that the

deceased was not a bona fide passenger. In Union of India Vs. Rina Devi [AIR 2018 SC 2362, ]the Hon'ble Supreme Court has dealt with the point

Burden of proof when body found on railway premises  Definition of 'passenger'"". The conflicting decisions on the subject were noted and it has

been observed thus :Â​

We thus hold that mere presence of a body on the Railway premises will not be conclusive to hold that injured or deceased was a bona fide

passenger for which claim for compensation could be maintained. 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. This will have to be dealt

with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly.

Taking into consideration these observations, when in this case, the original ticket, stated to be purchased just before travelling with deceased and

positive statement that deceased had also purchased ticket as well as the fact that no contrary evidence about it being fake document, it will have to

be held that the deceased was a bona fide passenger.

It can be seen that there appears to be no dispute that the applicant was found in injured condition on the railway tracks. Applicants have

examined AW 1 Ravi to support their contention. RW 1 and RW 2 have stated that no untoward incident, unexpected jerk or rush in any compartment

was reported during their duty hours. That means there are words and words. No doubt, it was for applicants to explain as to why they did not report

the incident immediately to Guard or other officials; but that can not be the only ground to disbelieve them. When learned Tribunal has come to the

conclusion that death of Ramlu was due to dash or hit by train, then the inference drawn by Tribunal that there was untoward incident is wrong.

Rather it can be inferred on the basis of evidence of the applicants that deceased had purchased ticket, then he being bonafide passenger, hit or

dashed by Train, would be an 'untoward incident' as contemplated under Section 124 of Railways Act.

Much has been stated about deceased travelling from the door of the compartment, due to heavy rush. If there was heavy rush in the

compartment from which deceased was travelling, then immediately after he fell down, some passenger would have pulled the chain in order to save

the deceased. But that is not the only criteria to arrive at the conclusion against the applicants. The reason for the unexpected jerk cannot be gathered.

Even if it is accepted that deceased was travelling from the door of the comparment, yet, it is required to be considered whether this act of deceased

is 'untoward incident' or not.

Section 123(c) of the Railways Act defines 'untoward incident'. In the said provision, accidental fall of any passenger from a train has been

covered. However, Section 124A of the Railways Act deals with 'liability of the railway to pay compensation on account of untoward incident'. It has

been specifically provided that no compensation is payable by the Railway Administration if the passenger suffers injury due to (a) ...... (b) selfÂ‐

inflicted injury (c) his own criminal act (d) ..... (e) ..... Thus, for our consideration, taking into consideration both the situations stated earlier (i.e.

deceased fell down from train or was hit/ dashed by train), it is required to be considered as to whether it is self inflicted injury or his own criminal act,

disentitling applicants from claiming compensation.

The decisions relied by the learned Advocate for the respondent are of various High Courts, that too, from 2008 to 2014. However, now the

position stands clarified by the Hon'ble Supreme Court in Rina Devi's case (supra). The Hon'ble Supreme Court has explained ""Application of

principle of strict liability  Concept of self inflicted injury"". The decision by High Court of Kerala in Joseph PT vs. Union of India [AIR 2014 Kerala

(12)], this Court's decision in Pushpa Vs. Union of India [(2017) III ACC 799 (Bom.)] and Delhi High Court's decision in Shayam Narayan Vs. Union

of India [(2018) ACJ 702], were considered and it has been held thus :Â​

We are unable to uphold the above view as the concept of 'self inflicted injury' would require intention to inflict such injury and not mere negligence

of any particular degree. Doing so would amount to invoking the principle of contributory negligence which cannot be done in the case of liability

based on 'no fault theory'. We may in this connection refer to judgment of this Court in United India Insurance Co. Ltd. Vs. Sunil Kumar [2017 (13)

SCALE 652] laying down that plea of negligence of the victim cannot be allowed in claim based on 'no fault theory' under Section 163A of the Motor

Vehicles Act, 1988. Accordingly, we hold that death or injury in the course of boarding or de boarding a train will be an 'untoward incident' entitling

a victim to the compensation and will not fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor.

[Stress supplied by me] Thus, above portion which has been stressed clearly indicates the legal position explained by the Hon'ble Supreme Court,

that in case of injury in the course of boarding or deÂboarding a train would be an 'untoward incident' entitling a victim to compensation and will not

fall under the proviso to Section 124A merely on the plea of negligence of the victim as a contributing factor. Therefore, it was not held to be covered

under 'self inflicted injury' in Section 124A of the Railways Act. Further, it cannot be said to be 'a criminal act intentionally done'. For a criminal act to

come under Section 124A of the Railways Act, there has to be an intention either to cause loss to anybody else or to himself or to the railways in

respect of its property. Therefore, though in Shayam Narayan's case (supra), act of criminal negligence was considered, yet, the Hon'ble Supreme

Court did not approve the view taken by the Delhi High Court. Railway has not come with a case that deceased has committed suicide. Evidence has

not been adduced from that angle. In view of the said clear legal position, it is held that the present applicants are entitled to get compensation. Points

no.01 and 02 are answered in affirmatively.

Now, turning towards the quantum that can be awarded, a note of the judgments and law laid down by the Hon'ble Supreme Court in Rathi Menon

Vs. Union of India [AIR 2001 SC 1333], N. Parameswaran Pillai Vs. Union of India & another [AIR 2002 SC 1834 a]nd Thazhathe Purayil Sarabi &

others Vs. Union of India & another [AIR 2009 SC 3098 ]is required to be taken. In Rathi Menon's case (supra), it was held that ""The compensation

must be fixed as per what on Rules prescribed at the time of making the order for payment of compensation and not in terms of money value which

prevailed on date of accident."" The observations are, ""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. 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. "" Thereafter, in N. Parameswaran Pillai's case (supra), it

was held that in view of authoritative pronouncement made in Rathi Menon's case (supra), the appellants were entitled to enhancement in the

compensation. In that case, the legal representatives of the deceased had claimed compensation of Rs. 2,00,000/Â but then in the meantime, the

Central Government had enhanced the compensation and, therefore, enhancement was granted. Some of the High Courts following Rathi Menon

(supra), have applied the amended schedule as on the date of adjudication in Union of India v/s. Aggala Dilleswara Rao [2006 ACJ 1470], Pramath

Kumar Jena v/s. Union of India [ AIR 2012 Ori 32] and Radha Yadav v/s. Union of India [ 2017 SCC OnLine Cal 420]. In Thazhathe Purayil Sarabi's

case (supra), it was a point regarding interest to be paid and it was held that the interest can be awarded either from the date of claim or from the date

principal sum adjudged to be payable and/or awarded.

Here, in this case, the untoward incident had taken place on 10Â11Â2014 and, therefore, compensation that was claimed was to the tune of Rs.

4,00,000/Â. However, Ministry of Railways by notification dated 22nd December 2016, enhanced compensation for death to the tune of Rs.

8,00,000/Â. The petition claiming compensation was filed on 21Â10Â2015 and it was decided on 01Â02Â2018 by the Tribunal. Under such

circumstance, taking into consideration the date of making order for payment of compensation i.e. today, the notification which has come in force on

22nd December 2016, is required to be made applicable in view of the above said pronouncements by the Hon'ble Supreme Court and in view of the

decision in Thazhathe Purayil Sarabi's case (supra), interest that is required to be granted is 6 % simple interest per annum from the date of the

application till the date of award and thereafter at the rate of 9 % per annum till the date of actual payment of the same. Taking into consideration

these reasons, the appeal deserves to be allowed.

Hence, the following order :Â​

(a) The first appeal is hereby allowed.

(b) The judgment and award passed by learned Railway Claims Tribunal, Nagpur Bench, in Claim Application No. OA (llu)/NGP/210/2016, dated

15Â02Â2018, is hereby set aside. The said claim stands allowed. The respondent is directed to pay compensation of Rs. 8,00,000/Â [Rupees eight

lacs] together with interest at the rate of 6 % per annum from the date of the application till the date of the award i.e. today and thereafter, at the rate

of 9 % per annum till the date of actual payment of the same to the applicants. The respondent shall pay costs of Rs. 10,000/Â [Rupees ten thousand]

to the applicants.

(c) After the said amount is deposited, amount of Rs.1,00,000/Â [Rupees One Lac Only] each be given to applicants No. 2 to 4 as their share, by

account payee cheque.

(d) Rest of the amount be given to applicant No. 1 in the form that 50% of the same be given by account payee cheque and remaining 50% of the

same be kept in fixed deposit in her name for a period of 5 years, in any nationalized bank of her choice. After the maturity of the fixed deposit, the

entire amount together with interest thereon be given to the applicant No. 1, without waiting for order from any Court.

(e) Award be drawn accordingly.