U.O.I. (G.M./SER/KOL) vs Saroj Devi

Heard, learned counsel for the appellant, Mr. Sudhir Kumar on behalf of the Railway and learned counsel for the respondent- claimant, Mr. Krishna

Mohan Murari.

Appellant-Railway has preferred this appeal against the award dated 08.09.2010 passed by learned Member (Judicial), Railway Claims Tribunal,

Ranchi Bench, in Case No. TAU/RNC/1999/0034; Old No. TTU-99034/99; RCT/Patna's No. OA-9900074, whereby the claim application filed by the

claimant has been allowed by awarding compensation to the tune of Rs. 4,00,000/- with interest @ 9% per annum from the date of filing of the claim

application i.e. 11.03.1999 and the share has been allotted as Rs. 2½ lakhs to the wife and Rs. 1½ lakhs to the minor child.

Learned counsel for the appellant has submitted that deceased Manoj Kumar Paswan was travelling in train no. 313 UP, on 28.07.1998 without having

valid ticket in over-crowded train without understanding the repercussions. If the space was not there he should not have boarded the train and under

the said circumstances, learned Tribunal has wrongly passed the impugned award in favour of the claimant relying upon the evidence of uncle of the

deceased namely, Sheo Ratan Paswan, who has been examined as A.W.-2 and as such, this Court may set aside the impugned judgment and Award.

Learned counsel for the respondent-claimant has submitted that the deceased Manoj Kumar Paswan was travelling through Train No. 313 UP

Passenger from Gomoh Station to Chakradharpur Station on 28.07.1998 after having a second class ordinary ticket purchased by maternal uncle Sheo

Ratan Prasad, then A.S.I., of the police posted & deployed at GRP Gomoh, the person died because of jostling and heavy rush in the train.

Learned counsel for the claimant has submitted that in view of evidence brought on record by A.W.-1, Saroj Devi, wife of the deceased Manoj

Kumar Paswan and A.W.-2, Sheo Ratan Paswan, the Tribunal has rightly allowed compensation in view of the judgment passed by the Apex Court

passed in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572 (para-29) and in view of the judgment passed by the Apex Court in

the case of Union of India Vs. Prabhakaran Vijaya Kumar reported in (2008) 9 SCC 527. Para-29 of the Rina Devi (Supra) judgment is profitably

quoted hereinbelow:-

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.

(emphasis supplied) Paragraph-14 to 17 & 22 to 24 of the Prabhakaran Vijaya Kumar (Supra) judgment are re-produced below:-

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 defendants' 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"".

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 two fold (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.

Learned counsel for the respondent-Claimant has submitted that the learned Tribunal has rightly allowed compensation along with interest @ 9% from

the date of filing of the claim application i.e. 11.03.1999 which has not been indemnified by the respondent- Railway, as such in view of the recent

judgment passed by the Apex Court in the case of Union of India Vs. Radha Yadav reported in 2019 (3) SCC 410, this Court may enhance the

compensation to the tune of Rs. 8,00,000/- in view of the recent amendment made in the Railway Accidents and Untoward Incidents (Compensation)

Amendment Rules, 2016, which is applicable from 01.01.2017 or Rs. 4,00,000/- along with interest @ 7.5%, whichever is higher in favour of the

claimant.

Para-11 of the aforesaid judgment is re-produced hereunder:-

...................... For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs 4,00,000. If, after

applying reasonable rate of interest, the final figure were to be less than Rs 8,00,000, which was brought in by way of amendment, the claimant would

be entitled to Rs 8,00,000. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs 8,00,000 the

compensation would be in terms of figure in excess of Rs 8,00,000. The idea is to afford the benefit of the amendment, to the extent possible. Thus,

according to us, the matter is crystal clear. The issue does not need any further clarification or elaboration.

After hearing learned counsel for the parties and on the basis of material brought on record, I find that there is no illegality in the impugned order in

view of the evidence brought on record by A.W.- 1 Saroj Devi and A.W.-2 Sheo Ratan Paswan and the judgment referred above.

Accordingly, the appeal is dismissed.

So far interest is concerned, that shall be paid by appellant- Railway as per the Award passed by the learned Tribunal from the date of filing of the

claim application i.e. 11.03.1999 till the date of indemnifying the award @ 9% or Rs. 8,00,000/- whichever is higher in favour of the claimant in view

of the judgment passed by the Apex Court in the case of Radha Yadav (Supra).