Union of India vs P. Krishnan and Another

Ms. Aruna Jagadeesan, J.—This Civil Miscellaneous Appeal is filed against the order dated 26.11.2008 made in O.A. No. 106 of 2007 by

the Railway Claims Tribunal, Chennai Bench, whereby the Tribunal; awarded a sum of Rs. 4,00,000/- as compensation to the claimants. The

claimant filed the above said claim petition before the Tribunal claiming compensation for the death of their son by name K. Sivakumar. It was

pleaded that on 17.2.2002 at about 19.30 p.m., when the deceased was travelling in ES154 Electric Train from Tambaram to Beach, near

Saidapet Railway Station, he was hit by an electric post at KMS-14/1, as a result of which, he fell down from the train and immediately he was

taken to Government Hospital and on 18.2.2002 at about 1.35 a.m. he died. The father and mother of the deceased are the claimants.

The Appellant in the reply statement opposed the claim made by the claimant. It was stated that the deceased was not a ''bona fide passenger''

and he fell down from the train on account of his own negligence and carelessness. He was travelling in the door ways exposing his body outside,

which resulted in the accident. Therefore, the accident is due to the rash and negligent act of the deceased and it would not attract the provisions of

''accidental failing from train'' u/s 123(c)(2) of the Railways Act, 1989 (herein after referred to as the Act). The deliberate action of the deceased

would tantamount to ''self-inflicted injury'' u/s 124(A) (b) of the Act and hence, the Appellant is not liable to pay compensation u/s 124(A)(b) of

the Act.

The Tribunal, after analysing the entire evidence on record and after hearing the contention of both the parties, awarded a sum of Rs. 4,00,000/-

as compensation to the claimants by the impugned order, which is challenged in the Civil Miscellaneous Appeal u/s 23 of the Railway Claims

Tribunal Act 54 of 1987.

Mr. T.S. Rajamohan, the learned counsel for the Appellant submitted that no ticket was recovered from the deceased and the finding recorded

by the Tribunal that the deceased was a ''bona fide passenger'' on the relevant date is not supported by any evidence. He would submit that the

claimant had no personal knowledge about the facts and the statements made in the claim application appear to be hearsay. It was denied that the

deceased was having a valid ticket for travelling and that the accident occurred only on account of the negligence and carelessness of the

deceased, as he deliberately travelled in the door way by exposing his body outside the train. Therefore, the deceased was travelling in rash,

negligent and deliberate in manner, which would tantamount to ''self-inflicted injury''. He would submit that it is common knowledge that it is not

permissible to stand at the doorway of the running train and the said act is an act of negligence and on his own volition and the same would come

within the terminology ''self-inflicted injury'' and the Tribunal committed an error in not considering above said aspects and in awarding

compensation to the claimant.

Mr. S. Parthsarathy, the learned counsel for the 2nd Respondent strenuously contended that the Tribunal has come to the right conclusion that

the deceased was a ''bona fide passenger''. The learned counsel would submit that the deceased having died in a horrible condition falling down

from the train, the ticket would have been lost in such a situation and the evidence placed on record clearly disclosed that the deceased died in the

course of travelling hit by an electric post and it is a clear cut case of death in an ''untoward incident''. The learned counsel further submits that the

burden was on the Appellant to prove that the deceased was nota ''bonafide passenger''. In the facts and circumstances of the case, the burden is

not discharged by the Appellant and therefore, the Tribunal was justified in drawing a conclusion that the deceased was a ''bonafide passenger''.

The learned counsel also pointed out that it is admitted that the deceased fell down from the train and therefore, this would come within the ambit

and meaning of ''untoward incident'' and the same would not tantamount to ''self-inflicted injury''. In support of his contentions, the learned counsel

relied on the decision of the Honourable Supreme Court Union of India v. Prabhakaran Vijayakumar (2008) 4 MLJ 323 (SC).

This Court heard the learned counsel on either side and perused the records.

Section 124A of the Act provides as follows:

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:

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 purpose of this Section, ''passenger'' includes:

a railway servant on duty; and

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.

By the Amendment Act 28 of 1994, Clause (c)(2) was inserted in Section 123 of the Act, bringing the ''accidental falling of any passenger from

a train carrying passengers'' into the definition of ''untoward incident.''

From the above provision of the Railways Act, the points which are to be determined are that the person, who is claiming compensation for any

loss, damage, injury or death, was a bona fide passenger having a valid ticket and sustained injury or death, as the case may be, in an ''untoward

incident''. ''Untoward incident'' should not fall within the exceptions (a) to (e) of proviso to Section 124A of the Act and the ''accidental fall'' would

include a passenger trying to alight a train, board a train, or any other like action, and he would be covered by ''untoward incident'' as specified in

Section 123(c) of the Act. Therefore, while boarding the train, due to jerk of the train if a person falls from the train and sustains injury or dies, it

cannot be held that due to his own negligence or carelessness he sustained injury or died and the burden lies on the Railways to prove that the

person met with an accident or death due to his own negligence thereby not entitled to compensation from the Railways.

In the case of Union of India (UOI), South Central Railways Vs. Kurukundu Balakrishnaiah and Others, , a Full Bench of the Andhra Pradesh

High Court answered to the following reference whether a passenger trying to board or alight from a running train or standing near the door,

jumped from the compartment, crossing the railway track or leaning out of the carriage; and during the course of such circumstance had fallen

down and was either injured or had died, was entitled to compensation from the Railways u/s 124A of the Railways Act, 1989. The Court while

answering the reference has held that (1) where a bona fide passenger dies in an untoward incident or sustain injuries, as the case may be,

Railways to pay compensation without dispute, unless the death of the deceased or the injuries sustained by the injured, would fall within the

exceptions (a) to (e) of the proviso to Section 124A of the Act; (2) accidental falling would include a passenger trying to alight a train, board a

train, or any other like action, and hence they would be covered by untoward incident as specified in Section 123(c)(2) of the Act. To attract any

of the exceptions u/s 124A proviso, may have to be decided in each and every case and general propositions cannot be laid down in this regard in

view of the complexity and diversity of the illustrations and the provisions or the Rules.

Falling from train to death due to one''s own negligence does not come within any exception enumerated u/s 124(A) of the Act. In the absence

of malicious intent or mens rea, such negligence can neither be held as criminal act u/s 124(A)(c). In Jameela and Others Vs. Union of India (UOI),

the Honourable Supreme Court has held thus:

12 The manner in which the accident is sought to be reconstructed by the Railways, that the deceased was standing at the open door of the train

compartment from where he fell down, is called by the Railways itself as negligence. Now negligence of this kind which is not very uncommon on

Indian trains is not the same thing as a criminal act mentioned in Clause (c) to the proviso to Section 124A. A criminal act envisaged under Clause

(c) must have an element of malicious intent or mens rea. Standing at the open doors of the compartment of a running train may be a negligent act,

even a rash act but, without anything else, it is certainly not a criminal act. Thus, the case of the Railways must fail even after assuming everything in

its favour.

There is no dispute with regard to the nature of the accident resulting in death of the deceased. From the evidence and the submissions of the

contesting parties, it appears that his body was leaning out of coach when struck against a signal pole of the railway, as a result of which whereof

he fell down from the train and expired. The real controversy is whether the accident is self-inflicted injury or untoward incident. The Tribunal held

that the case of the respondents/claimants is totally covered by Section 123(c) read with Section 124A of the Act. Section 123(c) of the said Act

speaks about untoward incident while Section 124A speaks about the compensation on account of untoward incident. It is not uncommon that in

the electric train, if seats are not available, passengers are compelled to stand in the coach and when rush is more, passengers are compelled to

stand even on the doorway. Some times their bodies happened to lean from the doors. In this case, a plea has been taken by the railway

authorities that as the body of the deceased was exposed outside, he hit against the pole and suffered injury. Therefore, the nature of injury is self-

inflicted injury, but not an untoward incident. On analysing the evidence, I am of the view that there is no definite material to prove that the

deceased was carelessness and thereby his action is hit by the principle of self-inflicted injury. According to me, even if it is a case of risk versus

risk, equity tilts sharply in favour of the deceased. Therefore, I am of the considered view that cause of self-inflicted injury has not been proved

beyond doubt as alleged by the Appellant.

It is no doubt true that no ticket was recovered from the body of the deceased. I am conscious of the position of law that as provided u/s 106

of the Evidence Act, if a fact is within the special knowledge of a person, the burden of proving such fact is on that person and as provided in

illustration (b) of that Section, if a person is charged with travelling on a railway without a ticket, the burden of proving that he had a ticket is upon

him. But, such principle is not applicable to a case of a dead person who was proved to have died in course of railway travel and whose body was

taken in custody of the Railway Police. In such a situation, it is the duty of the railway authority to first give evidence that he was without a valid

ticket and if such evidence is given, the onus shifts upon the claimants to prove that he was a bona fide passenger having a valid ticket. In this case,

as no person on behalf of the Railways has come forward to disclose what articles were found with the victim, when they recovered the body, the

initial burden of proving such fact had not been discharged. In the absence of such evidence, the benefit has to be given to the dependent of the

deceased and the Tribunal, rightly has come to the conclusion that the deceased was a bona fide passenger on the relevant date.

On a perusal of the relevant provisions referred supra, it is manifest that the said provisions are a part of the beneficial and welfare statute,

these provisions are intended for the benefit of the person who has died in such contingency. The Railways Act has defined the term ''untoward

incident''. By perusal of the said definition of ''untoward incident'', it is eloquent that the said definition is an inclusive definition and it also includes

an accidental fall of any passenger from a train carrying passengers. When a person is trying to board the train and falls down while trying to do so,

that would certainly come within the purview of the accidental fall from a train. When we say that the provisions are part of a welfare statute, then

the rules of interpretation mandate that the interpretation of the said provision shall be made in consonance with the object of the Act and for the

benefit of the person for whom the Act was made. The beneficial or a welfare statute should be given a liberal and not literal or strict interpretation.

The Honourable Supreme Court in Union of India v. Prabhakaran Vijayakumar (supra) involving similar question of interpretation of Section

123(c) of the Railways Act, 1989 has observed thus:

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 above mentioned two interpretations, i.e. the one which advances the object of the statute and serves its

purpose, should be preferred.

The conspectus of the above discussions would lead to the conclusion that if a Section in a welfare statute is reasonably capable of two

constructions then that construction should be preferred which furthers the policy of the Act and is more beneficial to those in whose interest the

Act may have been passed and the doubt if any should be resolved in their favour. So in a case of an exception which curtails the operation of

beneficent legislation, the Court in case of doubt would construe it narrowly so as not to readily expand the area of scope of exception.

The proviso to Section 124A of the Act carves out an exception for payment of compensation and the expression ''self-inflicted injury'' is a

part of proviso carving out exception, the same shall be construed narrowly.

Keeping in view the aforesaid principle of interpretation, the contentions that a passenger deliberately travelled in the door way of a moving

rain and he did so at his own risk and carelessness, the Appellant would not be responsible as it would amount to ''self-inflicted injury'' would be

stretching too far the expression ''self-inflicted injury''. ''Self-inflicted injury'' would mean injuries which are self inflicted by the person when he is

capable of rational voluntary action. The same would be a wound inflicted by one''s self. When a person accidentally falls from the train because of

some jerk, etc. in such circumstances it would not amount to a ''self-inflicted injury'', but an ''untoward incident''. Once it is held that the fall of the

deceased was a result of untoward incident, the claimant would be entitled for compensation.

For the reasons stated herein above, I do not find any merits in this Civil Miscellaneous Appeal and the impugned award is liable to be

confirmed. In the result, this civil miscellaneous appeal is dismissed. The impugned award is confirmed. No costs. The 2nd claimant is permitted to

withdraw the balance award amount with interest. No costs.