Union of India & Another vs Gulaba Devi & 5 Others

Dr. Satish Chandra, J.—The present appeal has been filed against the impugned judgment and award dated 7.2.1998 passed by the Fatal Accident Claims Tribunal, Sultanpur in Claim Petition No. 76 of 1988, where the compensation to the tune of Rs. 1,72,000/ was awarded.

The brief facts of the case are that, on 22.9.1988, the deceased Sri Raja Ram was travelling in a AllahabadFaizabad passenger train in Coach No. 2223 (RMS) having a valid ticket no. 65293. When the train arrived at Sultanpur Railway Station at about 1.20 p.m. on platform no.1, Sri Raja Ram came out from the coach and got down at platform. Suddenly an eucalyptus tree which was standing at the platform no.1 fell down due to heavy thunder storm rains, as a result of which Sri Raja Ram received fatal injuries and died on the spot. The Tribunal has awarded a sum of Rs. 1,72,000/ to claimantrespondent against Northern Railway. Being aggrieved, the present appeal has been filed by the appellant.

With this background, Sri Anil Srivastava, learned counsel for the appellants, submits that the deceased was travelling in RMS compartment which is a reserved compartment for RMS personnel as well as for keeping letters, parcels, dak etc. but passengers are not allowed to travel in the said RMS compartment. Accordingly, the deceased was himself negligent and was travelling illegally in the RMS compartment, as such he is not entitled to any compensation. Secondly, he submits that at platform no.1, an old eucalyptus tree fell down due to heavy storm rain and the deceased died on the spot. This is the divine act for which Railways is not responsible. Lastly, he submits that Union of India was not a party in the claim petition, so he made a request that impugned order may kindly be set aside.

On the other hand, Sri Ravindra Chaudhary, assisted by Sri G.K.Pandey, has justified the impugned order. He submits that in the case of S.Vedantacharya and another v. Highways Department of South Arcot and others (1987) 3 Supreme Court Cases 400, it was held by the Hon''ble Supreme Court that necessary preventive measures had to be taken by the respondents anticipating such rain, storm etc. There was nothing to indicate that any such anticipatory action was taken in the present case, so the Railways is responsible for the negligence. He also relied on the ratio laid down in Municipal Corporation of Delhi v. Subhagwanti and others, AIR 1966 Supreme Court 1750 where it was observed that Corporation was guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the appellant to carry out. Learned counsel for the respondent also relied on the ratio laid down in the case of Smt. Manjula Devi Mishra & others v. M/s Commercial Motors, Kanpur and others, 2007(3) ALJ 203 where it was observed that pelting of brick bats by unruly boys at driver of Truck caused injury to the driver and vehicle became disbalanced and fell into ditch, nonetheless the claim will have to be awarded to the victim. He also relied on the ratio laid down in the case of Smt. Qamrun Nisan v. Vijai Maurya, 2004(22) LCD 688 (which was delivered by one of us). In the said cases, the deceased was travelling in a bus. Suddenly, the axle was broken down and bus became disbalanced. The deceased out of fear jumped out of the bus and died. In this case, this Hon''ble Court held that breaking down of the axle cannot be considered as an act of God and the respondent cannot escape their liability. Lastly, he has justified the impugned order.

We heard the learned counsel for the parties at length and gone through the material available on record.

In the instant case, facts are not disputed. Sri Raja Ram was a bona fide passenger who was holding a valid ticket. He was travelling in which compartment, it makes no difference. The Indian Railways have made no arrangement to provide sufficient seats in proportionate to the tickets sold by them which results that the compartment are always overcrowded and the bona fide passengers are forced to travel wherever they got space. Even after the Independence, the Indian Railways have developed no mechanism to put the automatic door closer in trains and to provide sufficient accommodation with the basic amenities to the passengers. In these circumstances, we reject the plea of the learned counsel for the appellants that the victim was travelling in the compartment/coach of RMS and claimants are not entitled for the compensation. The Railway cannot escape its liability to give compensation specially when the deceased has already completed his journey and left RMS compartment. The accident took place at the platform and he was a bona fide passenger being holder of a valid ticket.

Regarding second argument of learned counsel for the appellants that it was not an accident and the victim died due to divine act, it appears that eucalyptus tree was old one. The Station Master earlier had sought permission to cut it but permission was not granted. No warning or preventive measures were put near the tree. The tree was within the premises of the property of Indian Railways, so the Indian Railways are entitled to pay the compensation as per the rule of strict liability, as the same was an accident.

In the case of Union of India and others v. Sunil Kumar Ghosh, reported in AIR 1984 Supreme Court page 1737, while dealing with the controversy relating to payment of compensation under Section 82 A(1) of the Railways Act, the Apex Court defined the ''Accident'' as under:

"An accident is an occurrence or an event which is unforeseen and starties one when it takes place but does not startle one when it does not take place. It is the happening of the unexpected, not the happening of the expected, which is called an accident. In other words an event or occurrence the happening of which is ordinarily expected in the normal course by almost every one undertaking a rail journey cannot be called as ''accident''. But the happening of something which is inherent in the normal course of events, and which is not ordinarily expected to happen or occur, is called a mishap or an accident. Now a collision of two trains or derailment of a train or blowing up of a train is something, which no one ordinarily expects in the course of a journey. That is why it falls within the parameters of the definition of accident."

In "The Encyclopedia Amaricana, International Edition," the ''accident'' has been defined as under:

"ACCIDENT, in law; a casualty or unforeseen event, usualty characterized by suddenness and external force or violence. The term has no settled legal interpretation. It is applied most frequently to an unfortunate happening that causes death or personal injury or damage to or loss of property. The word sometimes carries an implication of the absence of human fault or negligence. In this sense, an accident is an occurrence that could not have been prevented by the exercise of ordinary care. In many cases, however, the term has been interpreted by the courts to mean simply an event occurring without one''s foresight or expectation and thus to include happenings that involve negligence.

With the spread of compulsory auto liability insurance, some authorities have favored removing the question of negligence entirely from auto liability cases and reserving for criminal investigation the question of gross negligence. A sickness or disease is not considered an accident unless caused or aggravated by an external event occurring suddenly and unexpectedly."

Then, again in the same book, the ''accident'' has been further defined as under:

"authorities define an accident as an unplanned event frequently resulting in bodily injury, property damage, or both. The unanticipated nature of accidents, however, does not mean that they occur by chance. Authorities contend that virtually all accidents can be prevented by eliminating unsafe acts and unsafe conditions."

In the book of Law of Torts by Salmond & Heuston, relying upon various decisions, the word "Accident" has been defined as under:

"An accident in its popular sence is any unexpected injury resulting from any unlookedfor mishap or occurrence. In law a happening is only regarded as an accident if it is one out of the ordinary course of things, something so unusual as not to be looked for by a person of ordinary prudence."

Hence, we are satisfied that the fallen down of the eucalyptus tree on the victim is nothing but an accident and Indian Railways are liable for the said accidents as per the theory of strict liability.

The theory of strict liability for hazardous activities can be said to have originated from the historic judgment of Blackburn, J. of the British High Court in Rylands v. Fletcher 1866 LRI Ex 265. Before this decision the accepted legal position in England was that fault, whether by an intentional act or negligence, was the basis of all liability (see Salmond on ''Tort'', 6th Edn. p.12) and this principle was in consonance with the then prevailing Laissez Faire Theory. With the advancement of industrialization the Laissez Faire Theory was gradually replaced by the theory of the Welfare State, and in legal parlance there was a corresponding shift from positivism to sociological jurisprudence.

In the famous case of Rylonds v. Fletcher (surpra), the facts were that the defendant, who owned a mill, constructed a reservoir to supply water to the mill. This reservoir was constructed over old coal mines, and the mill owner had no reason to suspect that these old diggings led to an operating colliery. The water in the reservoir ran down the old shafts and flooded the colliery. Blackburn J. held the mill owner to be liable, on the principle that ''The person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape". On appeal this principle of liability without fault was affirmed by the House of Lords (per Cairns, J.) but restricted to nonnatural users vide (1868) LR 3 HL 330.

Rylands v. Fletcher (supra) in fact created a new legal principle (the principle of strict liability in the case of hazardous activities), though professing to be based on analogies drawn from existing law. The judgment is noteworthy because it is an outstanding example of a creative generalization. As Wigmore writes, this epoch making judgment owes much of its strength to ''the broad scope of the principle announced, the strength of conviction of its expounder, and the clarity of his exposition''.

Thus in cases where the principle of strict liability applies, the defendant has to pay damages for injury or death caused to the victim, even though the defendant may not have been at any fault strictly.

Now, the second aspect is as to whether the fallen of the tree due to heavy storm and rains was an act of God and it should be ignored while deciding the present controversy as discussed hereinabove. In the book the Law of Torts by Ratantal and Dhirajlal the act of God has been defined as under:

"All causes of inevitable accident may be divided into two classes:

(I)those which are occasioned by the clementary forces of nature unconnected with the agency of men or other cause;

(II)those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, nonfeasance or of misfeasance, or in any other causes independent of the agency of natural forces.

The term ''act of God'' is applicable to the former class.

However, we are now witnessing a swing once again in favour of the principle of strict liability. The Bhopal Gas Tragedy, the Chernobyl nuclear disaster, the crude oil spill in 1988 on to the Alaska coast line from the oil tanker Exxon Valdez, and other similar incidents have shocked the conscience of people all over the world and have aroused thinkers to the dangers in industrial and other activities, in moder society.

In India, Article 38(1) of the Constitution states "the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life". Thus, it is the duty of the State under our Constitution to function as a Welfare State, and look after the welfare of all its citizens. In various social welfare statutes the principle of strict liability has been provided to give insurance to people against death and injuries, irrespective of fault.

Similarly, Section 124A of the Railways Act, 1989, Sections 140 and 163A of the Motor Vehicles Act, 1988, the Public Liability Insurance Act, 1991 etc. incorporate the principle of strict liability.

Section 124A. of the Railway Act reads as under:

"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 dependant 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:

However, apart from the principle of strict liability in Section 124A of the Railways Act and other statutes, we can and should develop the law of strict liability de hors statutory provisions in view of the Constitution Bench decision of Apex Court in M.C.Mehta v. Union of India, AIR 1987 SC 1086. In our opinion, we have to develop new principles for fixing liability in cases like the present one.

It is recognized that the Law of Torts is not stagnant but is growing. As stated by the American Restatement of ''Torts, Art.1: vide D.L.Lloyd: Jurisprudence:

"The entire history of the development of the tort law shows a continuous tendency, which is naturally not uniform in all common law countries, to recognize as worthy of legal protection, interests which were previously not protected at all or were infrequently protected and it is unlikely that this tendency has ceased or is going to cease in future."

In the light of above discussions and by considering the totality of the facts and circumstances of the case, we are of the view that it was the duty of the Railways to keep the tree in question in proper condition or cut it as the platform is always over crowded due to passengers. The Station Master has already asked the permission to cut the tree in question but the permission was not granted. Due to this negligence also the Railways are liable to pay the compensation for the death of a bona fide passenger. Hence, we find no force in the appeal filed by the Railways as the same is devoid of merits.

Thus, there is no force in this appeal which is accordingly dismissed. There shall be no order as to costs.