Shantabai Krishna Zamre And Ors. vs Union Of India (Uoi)
2004 Latest Caselaw 431 Bom

JUDGMENT

S.T. Kharche, J.

1. This appeal is directed against the order and award dated 17.8.1990 passed by the Railway Claims Tribunal in Claim Case No. 40/TA-II/ RCT/NGP/90 whereby the claim seeking compensation filed by the appellants, legal representatives of the deceased Krishna Zamre, was dismissed.

2. Brief facts are required to be stated as under:

Deceased Krishna was appointed as a khalasi by railway department in the year 1984 and he was working in such capacity at Pulgaon whereas he was residing at Wardha. He used to attend to his duty by travelling in the railway train. On 5.9.1986 he was travelling in Bhusaval-Nagpur 385 Dn. passenger train and this train met with an accident and was hit by derailed wagons of a goods train at Pulgaon station itself. Krishna died in the said accident. The claimant No. 1 Shantabai is widow, No. 2 Kavita and No. 4 Sangeetha are daughters and No. 3 Vinod and No. 5 Pramod are sons of deceased. They had filed application before the Railway Claims Tribunal under Section 82A of the Indian Railways Act, 1890 (for short, 'the Railways Act'). Respondent railway administration denied the liability on the ground that the said deceased Krishna did not have any valid pass or ticket on the date of accident and as such was not a bona fide passenger. The claimant widow Shantabai had examined herself only in support of her contentions whereas no witness has been examined on behalf of the railway administration. The Tribunal, on considering the evidence adduced, had reached the conclusion that the deceased Krishna was not travelling as a bona fide passenger in the railway train and as such his legal representatives/dependants would not be entitled to receive any kind of compensation. Consistent with these findings he had dismissed the claim application by order dated 17.8.1990. This order is under challenge in this appeal.

3. Mr. Joshi, the learned Counsel for the claimants contended that the claimants are the dependants of the deceased in view of Section 82C(1)(d) of the Railways Act read with Section 2(1)(d) of the Workmen's Compensation Act. He contended that the Claims Tribunal did not take into consideration rule 6 of Railway Accidents (Compensation) Rules, 1950 by which the dependants of the railway emp]oyee/bona fide passenger are entitled for fixed compensation of Rs. 1,00,000 and, therefore, in the circumstances this much compensation ought to have been awarded to the claimants. There is no definition of 'bona fide passenger' given in the Railways Act or Rules made thereunder and, therefore, it cannot be said that the deceased was not a bonafide passenger in the railway train. He contended that since the deceased was the employee and was travelling in the railway train for attending his duty, the dependants would be entitled to receive compensation. He contended that the deceased was working in the Railways since the year 1984 and he had also obtained the railway pass, but unfortunately the railway pass was valid up to 3.9.1986 whereas the accident occurred on 5.9.1986. He contended that the provisions of the Railways Act so far as granting compensation of Rs. 1,00,000 is concerned is in the nature of beneficial legislation and, therefore, the Claims Tribunal ought to have granted compensation of Rs. 1,00,000 with interest and cost. He further contended that the impugned order passed by the Tribunal is not sustainable in law and this appeal may kindly be allowed.

4. Mr. Lambat, learned Counsel for the respondent railway administration pointed out that the deceased was travelling in the railway train without valid pass or ticket as per the definition mentioned in Sections 3(15) and 3(16) of the Railways Act. He contended that as per Section 68 of the Railways Act there is prohibition against entering a carriage or remaining therein for the purpose of travelling as a passenger unless such person has with him a proper pass or ticket. He contended that the deceased was not a 'bonafide passenger' in the train and, therefore, his dependants would not be entitled to receive compensation in view of the provisions of Section 82A(1) of Railways Act. He contended that the deceased had undertaken journey from Pulgaon to Wardha on the date of accident without any authority to do so and he was a trespasser in the railway train. He further contended that the pass obtained by him was valid up to 3.9.1986 only and the accident occurred on 5.9.1986 and the burden was on the claimants to prove that the deceased was travelling as a 'bonafide passenger' in the train and in absence of any evidence to show that he was bonafide passenger, Tribunal was perfectly justified in dismissing the claim application and no case has been made out for interference into the said order. He further contended that there is no merit in the appeal which may kindly be dismissed with costs. In support of these contentions, he relied on the decision of Division Bench of Allahabad High Court in the case of Yashoda Devi v. Union of India 1980 ACJ 27 (Allahabad) and another decision of Allahabad High Court in the case of Sudha Srivastava v. Claims Commissioner, Northern Railway 1985 ACJ 404 (Allahabad).

5. This Court has given thoughtful consideration to the contentions canvassed by the counsel for the parties. The definition of 'pass' has been given in Section 3(15) of Railways Act and 'pass' means an authority given by a railway administration, or by an officer appointed by a railway administration in this behalf and authorising the person to whom it is given to travel as a passenger on a railway gratuitously. Ticket' has been defined under Section 3(16) and 'ticket' includes a single ticket, a return ticket and a season ticket.

6. Section 82A(1) contemplates that:

When in the course of working a railway an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, 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 person who has been injured or has suffered loss to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding any other provision of law to the contrary, be liable to pay compensation to the extent set out in Sub-section (2) and to that extent only for loss occasioned by the death of a passenger dying as a result of such accident, and for personal injury and loss, destruction or deterioration of animals or goods owned by the passenger and accompany the passenger in his compartment or on the train, sustained as a result of such accident.

(2) The liability of a railway administration under this section shall in no case exceed Rs. 1,00,000 in respect of any person.

[The words 'Rs. 1,00,000' have been substituted by an amendment vide Notification No. 82/TG-II/1026/22/IRA dated 12.3.1984 issued by the Government of India, Ministry of Railway Administration (Railway Board)].

Therefore, as per Rule 6(1) of Railway Accidents (Compensation) Rules read with Part I of the Schedule to said rule, fixed compensation of Rs. 1,00,000 would be payable in case the deceased was travelling as a passenger in the railway train on the date of the accident.

7. In Sudha Srivastava v. Claims Commissioner, Northern Railway 1985 ACJ 404 (Allahabad), the High Court was dealing with the claim for compensation arising out of the Railways Act, 1890 and held that there is no direct evidence to prove that the deceased died in consequence of the train accident and no reliable evidence was there to show that deceased purchased ticket and boarded train and in those circumstances it was held that the deceased was not a bona fide passenger and that he did not die in train accident in question.

8. In Yashoda Devi v. Union of India 1980 ACJ 27 (Allahabad), it has been held that:

it cannot be said that the word, 'passenger' as used in Section 82A includes within its ambit any person travelling by train from one place to another either with or without ticket or some other authority....The intention of the legislature in introducing Section 82A was only to enable the class of persons who according to law as it stood at that time were entitled to receive compensation on the death of a passenger after proving wrongful act, neglect or default on the part of the railway administration, to receive such compensation even without proving any wrongful act, neglect or default on the part of railway administration. The object of the legislature was not to create a new class of persons who were to become entitled to receive compensation for the death or injury caused to a passenger or his property.

9. It is necessary to reproduce Section 68 of the Indian Railways Act, 1890, it reads thus:

Prohibition against travelling without pass or ticket.-(1) No person shall, without the permission of a railway servant empowered in this behalf by the railway administration, enter or remain in any carriage on a railway for the purpose of travelling therein as a passenger unless he has with him a proper pass or ticket.

(2) A railway servant granting the permission referred to in Sub-section (1) shall ordinarily grant to the passenger a certificate that the passenger has been permitted to travel in such carriage upon condition that he subsequently pays the fare payable for the distance to be travelled.

10. On analysis of the aforesaid provisions of law, it would reveal that the dependants of a person who is travelling as a 'bona fide passenger' in railway train is entitled to receive the compensation of Rs. 1,00,000 as per rule 6 of the Railway Accidents (Compensation) Rules, 1950 and that the burden would be on the railway administration to establish that the deceased was not travelling as a 'passenger' in the railway train on the date of the accident and that he was not a bona fide passenger.

11. In the present case Shantabai has been examined but she has no personal knowledge as to whether her husband is having valid pass, permit or ticket on the date of the accident. The accident occurred on 5.9.1986 and the Tribunal has exhibited one document A-3 which indicates that the deceased employee had been in possession of one pass for travelling in the railway train but that pass was valid till 3.9.1986. Perusal of this pass would reveal that it has been issued by some officer of the railway administration but no conditions have been put in the pass to show that the deceased was permitted to travel in the train upon condition that he subsequently pays the fare payable for the distance to be travelled as is required as per Section 68(2) of the Indian Railways Act. The analysis of Section 68 would reveal that no person shall without permission of the railway servant empowered by the railway administration enter or remain present in the carriage of railway for the purpose of travelling as a 'passenger' unless he has with him a proper pass or ticket. The Act does not contemplate that the railway employee who is travelling in the train without ticket could be permitted as 'bona fide passenger'. Since the deceased was already having pass issued in his favour which expired on 3.9.1986, it did not follow that he was not a bona fide passenger in the train. Once the conclusion is drawn that he was a passenger in the train but with a pass which had expired or the pass remained to be renewed, that does not mean that the dependants of the deceased cannot be held to be entitled to receive the compensation. It would also be obvious that the Tribunal was wrong in its approach in reaching the conclusion that the deceased who was railway employee was a trespasser in the train and not a bona fide passenger.

12. The words, 'bona fide passenger' and 'trespasser' are entirely distinct from each other and cannot be assigned the same meaning and, therefore, it is obvious that the deceased was not at all a trespasser in the railway train but he was travelling as an employee of the railway administration for attending his duty and the only fault on his part was that he did not get the pass renewed after its expiry and unfortunately the accident occurred just two days after the expiry of the period of the pass.

13. The Division Bench of Madhya Pradesh High Court in Raj Kumari v. Union of India 1993 ACJ 846 (MP), took the view that:

The scheme and the Act seen as a whole makes it evident that the entry into a railway carriage required of a person to obtain a ticket, pass or permission and in absence thereof, his action or omission is punishable with imprisonment or fine, including removal from the carnage. When a person is found dead as a result of accident in a railway carriage, in which he was travelling, a presumption may be drawn under Section 114 of the Evidence Act keeping in view of the prohibition under section 68 of the Railways Act against boarding a train without ticket that the deceased was a bona fide passenger. Since ticketless travel is an illegal act and exposes such traveller to penal action, the presumption is of innocence in favour of such one of the travellers or passengers in a train. It is for the railway administration to prove contrary and the burden in such circumstances that the deceased was a ticketless traveller or was not a bona fide passenger, should be on the railway administration which has special means of knowledge as to whether any ticket was issued to that deceased or whether at any point, before or at the end of journey, he was checked and detected by staff of the railway as an unauthorised person without ticket, pass or permission.

This Court is in respectful agreement with the view taken by M.P. High Court in the aforesaid case if it is so, it would be clear that railway administration has not adduced any evidence to show that deceased was not a 'bona fide passenger' in the train on the fateful day and did not discharge the onus.

14. Therefore, in view of the peculiar facts and circumstances, this Court is of the considered opinion that the Tribunal has committed an error in not interpreting the provisions of the Act which is admittedly a beneficial legislation, in favour of the dependants of the deceased. The authorities on which reliance is placed by the learned Counsel for railway administration are not applicable to the facts and circumstances of the present case and, therefore, it is obvious that the impugned order passed by the Claims Tribunal has resulted into the miscarriage of justice and, therefore, the appeal deserves to be allowed.

15. So far as the quantum of amount of compensation is concerned, it would clearly reveal from the provisions of rule 6 of the Railway Accidents (Compensation) Rules, 1950 that the dependants of the deceased would be entitled for the fixed compensation of Rs. 1,00,000 and in such circumstances, this appeal is allowed and the impugned order is set aside and instead the railway administration is directed to pay compensation of Rs. 1,00,000 with costs throughout to the appellants-dependants, within the period of four months, in default the said amount shall carry interest at the rate of 9 per cent per annum from the date of this order till realisation.