Sanju Devi vs Union Of India

Heard, learned counsel for the parties.

Learned counsel for the appellant has submitted that Railway Claims Tribunal has dismissed the claim application vide judgment dated 29.10.2015 passed in Case No.OA(IIU)/RNC/2015/0005 whereby the claim application of the appellant has been dismissed considering the death of the deceased- Suresh Tanti is not because of an untoward incident as defined under Section 123(c) (2) of the Railways Act, 1989 though the learned Tribunal has considered the deceased to be a bona fide passenger.

Learned counsel for the appellant has submitted that on 19.02.2012, deceased- Suresh Tanti, a hawker was travelling with a valid train ticket No.16601303 from Ranchi to Bokaro vide Vananchal Express but could not get down at Bokaro Railway Station due to over-crowded bogie and fell down near KM 406/14-16 (after Tupkadih Railway Station) due to push and this fact has been corroborated as per the evidence of A.W.2- Sri Sohan Lal, but his evidence has not been considered by the Railway, as such, the findings recorded by the learned Tribunal with regard to incident not to be an untoward incident is wholly arbitrary and bad in law.

Learned counsel for the appellant in support of his submission has relied upon the judgment passed by the Hon'ble Apex Court in the case of Union of India vs. Prabhakaran Vijaya Kumar AIR, reported in 2008(9) SCC 527, paras 14 to 17 and 22 to 24, which are profitably quoted hereunder:-

"14. 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 appellant has thus submitted that the victim was a bona-fide passenger and he died because of untoward incident, as such, the appellant is entitled for compensation amount to the tune of Rs.4 lacs with simple interest @ 7.5% from the date of filing of the application dated 17.11.2014 till the date of actual payment or a sum of Rs.8 lacs in view of subsequent amendment in the Railway Accident Untoward Incident (Compensation) Rules, 1990, which has been amended in the year, 2016 made effective from 01.01.2017, 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 19.

Learned counsel for the appellant has thus, submitted that in view of the judgment passed by Hon'ble Apex Court in the case of T.P. Sarabi and others vs. Union of Indian and another, reported in 2009(7) SCC 372 at para 38 and subsequently Union of India vs. Dilip and Ors. passed by Hon'ble Apex Court in Civil Appeal No.9124 of 2019, the rate of interest ought to have been awarded at @ 7.5% per annum from the date of filing of the application i.e. 17.11.2014 till the actual date of payment or Rs.8 lacs, whichever is higher in favour of the appellant.

Learned counsel for the Respondent, Mr. Gautam Rakesh has opposed the prayer and has submitted that the deceased has valid ticket from Ranchi to Bokaro but incident never took place before Bokaro rather the same took place after Bokaro, near Tupkadih Railway Station, as such, the appellant was not a bona-fide passenger at the place where accident has occurred. Considering the rival submissions of the parties and looking into the fact and circumstances of the case and since no counter appeal has been preferred by the Railway to declare that deceased was not a bona-fide passenger as it has been held by the Railway Claims Tribunal that the deceased was a bona-fide passenger, as such, the objection raised by the learned counsel for the Railway is not in consonance to consider the same.

As the deceased had a valid train ticket No.16601303 from Ranchi to Bokaro and because of the over-crowded bogie, the deceased could not get down at the Bokaro Railway Station and the deceased fell down and died near Tupkadih Railway Station, as such, the incident is untoward incident as defined under Section 123(c)(2) of the Act in view of the judgment passed by the Hon'ble Apex Court in the case of Prabhakaran Vijaya Kumar (Supra). The respondent-railways is directed to pay compensation within a period of 90 days as per the prevalent rate at the time of filing of the claim application which was a sum of Rs.4 Lac along with simple interest @ 7.5% from the date of filing of claim application till the date of actual payment or Rs.8 Lacs in view of the new amended rule 2016 made effective from 01.01.2017, whichever is higher.

Accordingly, the instant appeal stands allowed.

Let Lower Court Records be sent down.