Shri Shashikant S/O Nandkisore ... vs Union Of India Thr. General ...
2017 Latest Caselaw 3910 Bom

                                               1




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                    NAGPUR BENCH : NAGPUR



First Appeal No.  309 of 2017



Appellant                :          Shashikant son of Nandkishore Dhage, 

                                    aged about 21 years, Student, resident of 

                                    920, Opp. Anupama Saree Centre, Bhaji

                                    Mandi, Near Nikalas Mandir, Nagpur

                                    versus

Respondent               :          Union of India, through its General 

Manager, Central Railway, Mumbai CST

Shri A. B. Bambal, Advocate for appellant

Shri N. P. Lambat, Advocate for respondent

Coram : S. B. Shukre, J

Dated : 3rd July 2017

Oral Judgment

1. Heard. Admit. Heard finally by consent of both the parties.

2. Appellant filed an application under Section 124-A of the

Railways Act for claiming compensation for the grievous injury he

suffered in train accident which he described as an "untoward incident" as

defined under Section 123 (c) (2) of the Railways Act. He submitted that

he was travelling on train on 29th August 2010 on a valid reservation-cum-

ticket from Nagpur to Tirppur. He contended that when he reached

Chandrapur Railway Station in wee hours, he alighted from the train in

order to buy a tooth-brush. But he could not see any store on the

platform and while he was in the process of boarding the coach, due to

sudden jerk that the coach received, the appellant lost balance and fell

out of the coach and caught between the platform and the train and

sustained injuries. His middle thigh on left leg was required to be

amputated.

3. The application, on merits of the case, was rejected on the

ground that the accident of a passenger who has fallen from a moving

train is not covered by the definition of "untoward incident" under

Section 123 (c) (2) of the Railways Act and therefore, the learned

Member of the Tribunal rejected the claim application by its judgment

and order dated 21st April 2016.

4. The appellant claims that by the impugned judgment and

order, injustice visited him and, therefore, he is forced to file an appeal.

His appeal is the present appeal.

5. Shri Bambal, learned counsel for the appellant submits that

now it is well-settled that the accident caused from moving train while

trying to board or deboard it, is covered by definition of "untoward

incident" as given in Section 123 (c) (2) of the Railways Act. He relies

upon the law laid down by the Hon'ble Apex Court in the case of Union

of India v. Prabhakaran Vijaya Kumar & ors reported in 2008 (2)

T.A.C. 777 (SC). He also points out that the injury suffered by the

appellant as per the medical certificate vide Exhibit A-30 is covered by

item (19) of the amended schedule which was amended by Notification

dated 22nd December 2016, copy of which is filed on record and it is

marked "X" for identification.

6. Shri Nitin Lambat, learned counsel for the respondent

submits that the law settled by the Hon'ble Apex Court in the Case of

Union of India v. Prabhakaran Vijaya Kumar & ors (supra) is a matter

of record. But he submits that the injury suffered by the applicant was

self-inflicted and that by the own admission of the appellant, what is

established on record is a "criminal act" which is covered by an exception

vide clause (c) of the proviso to Section 124-A of the Railways Act.

Therefore, he supports the impugned judgment.

7. In the instant case, if one considers the evidence available

on record and admission given by the appellant, no doubt is left in my

mind that the accident occurred at a time when the train had started to

roll down the track and the appellant tried to board the train. The

question would, therefore, be - whether an accident occurred while

boarding the moving train is covered by the definition of "untoward

incident" under Section 123 (c) (2) of the Railways Act or not. An

incidental question is, whether such an act could be termed as a "criminal

act" or not.

8. Section 123 (c) (2) of the Railways Act defines the expression

"untoward incident" as an accidental falling of any passenger from a train

carrying passengers. Section 124-A of the Railways Act allows

compensation on account of untoward incident. Clause (c) of the proviso

to Section 124-A creates an exception by laying down that no

compensation will be payable by the Railway Administration if the

passenger dies or suffers injury due to his own criminal act. The

expression "untoward incident" covered by Section 123 (c) (2) has been

given liberal interpretation by the Hon'ble Apex Court in the case of

Union of India v. Prabhakaran Vijaya Kumar & ors (supra). It held

that the provisions of law which allow compensation to be paid to the

affected person because of untoward incident is a part of a beneficial

legislation and, therefore, it must receive liberal interpretation. It further

held that if the expression is capable of two different interpretations - one

favouring the Railway Administration and the other the victim of

untoward incident, the Court must adopt that construction which helps

the victim of untoward incident. It also found that if a stricter

construction is to be placed upon this provision, in a country like India

where crores of people travel by railway trains since everyone cannot

afford travelling by air or in a private car, 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. This was

another reason for the Hon'ble Apex Court to give liberal construction to

the expression "untoward incident" defined under Section 123 (c) (2) of

the Railways Act. Thus, the Hon'ble Supreme Court held that when a

bonafide passenger, trying to enter into a railway train, falls down during

the process, the accident would be an untoward incident covered by

Section 123 (c) (2) of the Railways Act. The relevant observations of the

Hon'ble Apex Court appearing in paragraph 14 are reproduced thus :

"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 bonafide 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

purpositve, and not literal, interpretation should be given

to the expression."

9. Shri Lambat, learned counsel for the respondent submits that

the facts in the case of Union of India v. Prabhakaran Vijaya Kumar &

ors were quite different than the facts of the instant case. In that case, a

passenger had fallen down from the train and died of the injuries in the

process, which is not the case in the present appeal. He submits that in

the instant case, the negligence on the part of the appellant was writ large

as he had spent longer time than was permitted on platform of

Chandrapur Railway station. He submits that there was sufficient warning

given by blowing of horn about the train being ready to depart and the

railway personnel also blew up the whistle for departure of the train and

that it was only after these forewarnings that the train actually started

moving. He submits that it was only then that the appellant realized that

it was time for him to get into the train or otherwise, he would be left

high and dry on the platform and as he hurriedly tried to get inside the

bogie, he lost his balance and the accident occurred. He submits that if

the appellant had respected the stoppage time of train for Chandrapur

Railway Station, there would not have been any accident. But, he ignored

the same and, therefore, he himself was negligent, so submits the learned

counsel. Of course, this has not been agreed to by learned counsel for

the appellant. He submits that even in the case of Union of India v.

Prabhakaran Vijaya Kumar & ors (supra), as mentioned in paragraph 8

of the judgment of the Apex Court, the victim had attempted to board a

moving train and fell down from the same and, therefore, the facts herein

are not distinguishable.

10. On going through the entire judgment in the case of Union

of India v. Prabhakaran Vijaya Kumar & ors, I find that the facts of that

case are quite similar to the facts of the instant case. It is seen from the

observations of the Hon'ble Supreme Court in paragraph 8 of the

judgment that DW-1 in that case tendered the evidence to the effect that

he saw one girl running towards the train, trying to enter the train and

falling down the train. He deposed that deceased Abja had attempted to

board the train and fell down from the running train. It is a fact in the

present case that the appellant while trying to get inside the train when

the train had started to roll down on the track, fell down. In the light of

these facts and the ratio laid down by the Hon'ble Apex Court, learned

counsel for the appellant has rightly submitted that the accident in the

present case would be covered by the definition of "untoward incident"

given in Section 123 (c) (2) of the Railways Act.

11. Now, the question would be, whether such an attempt made

by the appellant would fall within the exeption to Section 124-A of the

Railways Act or not. Clause (c) to Section 124-A states that if an accident

occurs due to any criminal act of the passenger, the victim or the

passenger would not be entitled to receive compensation. "Criminal act"

as such has not been specifically defined in any of the provisions of the

Railways Act. However, certain penalties for the offences under the Act

are provided under Chapter XV of the Railways Act. As submitted by

learned counsel for the respondent, I see at least two of the provisions

providing for punishment, relevant for the purpose of answering the

question posed earlier. Relevant provisions contained in Sections 154

and 156 of the Railways Act read thus -

"154. Endangering safety of persons travelling by railway by

rash or negligent act or omission - If any person in a rash and

negligent manner does any act, or omits to do what he is

legally bound to do, and the act or omission is likely to

endanger the safety of any person travelling or being upon any

railway, he shall be punishable with imprisonment for a term

which may extend to one year or with fine, or with both."

"156. Travelling on roof, step or engine of a train. - If any

passenger or any other person, after being warned by a

railway servant to desist, persists in travelling on the roof, step

or footboard of any carriage or on an engine, or in any ther

part of a train not intended for the use of passengers, he shall

be punishable with imprisonment for a term which may

extend to three months or with fine which may extend to five

hundred rupees, or with both and may be removed from the

railway by any railway servant."

12. A closure reading of above Sections would show that only

those acts which either endanger safety of persons travelling by railway

or travelling on roof, step or engine of train are covered by them. It is

only these acts which could be termed as "criminal acts" constituting

offences and attracting penalties under Chapter XV of the Railways Act.

13. In the instant case, there has not been any act done by the

appellant which endangered safety of the other passengers. There is also

nothing on record showing that inspite of warning by a railway servant,

the appellant persisted to travel on roof, step or engine of a train or any

other part of a train not intended for the use of passengers. On the

contrary, the appellant was holding a valid ticket-cum-reservation; was a

bonafide passenger; had not violated any rules in alighting from the train

in order to buy a toothbrush and had only tried to get into the train when

he realized that the train had started moving on its wheels. It is

significant to note that it was for the railway administration to make

available stores of essential commodities near the coaches and in the

instant case, no store on the platform was open when the appellant

alighted from the train. The appellant was required to look for one such

store at different places on the platform of Chandrapur Railway Station

and in that process, he had to move here and there and when he was

away from the bogie, the train started rolling. The negligence, if at all it

was there, could be attributed not to the appellant but to the railway

administration. This negligence resulted from not making available

requisite store for the passengers travelling on long distance trains. So, I

find that the accident which occurred due to fall of the passenger i.e. the

appellant from the running train, was an "untoward incident" not covered

by any exception to Section 124-A of the Railways Act, 1989. The

question raised in this regard is answered accordingly.

14. Now, the question is about the quantum of compensation

payable to the appellant. Medical Certificate (Exhibit A-30) shows that

the appellant has suffered amputation of his left thigh about which there

is no dispute. Such accident is covered by entry no. 19 of the Notification

dated 22nd December 2016 (Document "X"). The victim of untoward

incident under this entry is entitled to receive compensation of Rs.

4,80,000/-. Appellant is, therefore, declared to be entitled to receive the

amount of Rs. 4,80,000/- and the respondent would be liable to pay the

same to the appellant with interest from the date of application till actual

realization @ 7% per annum. This compensation be paid within three

months from the date of this order, failing which the appellant shall be

entitled to recover the sum from the respondent together with interest @

one more percent per annum from the date of failure to pay the

compensation as per this order, till realization, in addition to 7% interest

granted from the date of application.

15. In the result, impugned judgment and order are quashed and

set aside. The appeal is allowed in terms of the above order with costs.

S. B. SHUKRE, J

joshi