Shankar S/O Narayan Rathod (Since ... vs Union Of India Through The General ...
2017 Latest Caselaw 4131 Bom

                                                                                                          fa-j 1147-16.odt
                                                            1


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      NAGPUR BENCH, NAGPUR

                              FIRST APPEAL NO.1147 OF 2016

 Shankar s/o Narayan Rathod 
 Since dead through his legal heirs
 Smt. Gangabai wd/o Shankar Rathod
 Aged about 45 years, Occ.: Sweeper
 R/o Nityanand Nagar, Ward No.1, 
 Mansar, Tah. Mansar, 
 District-Nagpur.                                                               ....... APPELLANT

            ...V E R S U S...

 Union of India,
 Through the General Manager
 Central Railway, C.S.T,
 Mumbai.                                                      ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri. S. K. Sable, Advocate for Appellant.
          Shri N. P. Lambat, Advocate for Respondent.  
 -------------------------------------------------------------------------------------------

            CORAM:  DR. (SMT.) SHALINI PHANSALKAR-JOSHI, J.

th DATE : 6 JULY, 2017.

ORAL JUDGMENT

This appeal is preferred by the original petitioner

whose application for compensation filed under Section 16 of the

Railway Claims Tribunal Act, 1987 came to be dismissed by the

Railway Claims Tribunal, Nagpur vide its Judgment and order

dated 13.8.2015.

2] Brief facts of the appeal can be stated as follows:-

fa-j 1147-16.odt

On 29.7.2012 applicant's mother Smt. Premibai

Narayan Rathod purchased a general ticket from Kalyan to

Nagpur and boarded Sevagram Express along with relative, who

had also purchased a separate ticket. When their train halted at

Ajni Railway Station, her relative alighted first and thereafter

applicant's mother, while alighting from the train, due to the jerk

and rush of the passengers, fell down from the running train and

died on the spot. The appellant, therefore, claiming it to be a case

of an "untoward incident", filed the petition before the Railway

Claims Tribunal, Nagpur, claiming compensation of Rs.4,00,000/-.

3] This petition came to be resisted by the respondent,

herein denying that the cause of accident was the 'untoward

incident' within the meaning of Section 123(c)(2) of the Railways

Act. It was submitted that in the inquiry conducted by the

statutory authority, it was found that the applicant's mother got

herself injured due to her negligence and hence, railway

administration is not responsible for the said accident, therefore,

the petition needs to be dismissed.

4] In support of his case, appellant examined himself

fa-j 1147-16.odt

and relied upon the various documentary evidence produced on

record including Marg information, spot panchnama, inquest

panchnama, post mortem report etc.

5] On the basis of this evidence, the learned trial Court

was pleased to hold that, as the death of applellant's mother was

on account of her own negligence, the appellant cannot beheld

entitled for the compensation, as the said incident is not covered

within the definition of 'untoward incident' given in section

123(c)(2) of the Railways Act. The learned Tribunal accordingly

dismissed the petition. Hence, the instant appeal.

6] In this appeal, I heard learned counsel for appellant

and respondent, perused the impugned judgment of the Tribunal

and also the documentary evidence produced on record. The

evidence in this case is more than sufficient to show that the

appellant's mother had purchased the ticket and boarded the

Sevagram Express at Kalyan on that particular day i.e. 29.7.2012.

However, while alighting at Ajni on account of the rush of the

passengers and as the train suddenly started, she fell down from

the running train and died on the spot. There is evidence to that

fa-j 1147-16.odt

effect of the Marg Khabri which was sent by Dy. S. S. Central

Railway by way of written memo to police station in-charge

railway police. The spot panchnama is also sufficient to prove it;

even the report of statutory inquiry also goes to show that she was

a bona fide passenger of the railways and while she was trying to

get down from the moving train, she slipped, got injured and died.

However, it is concluded that she got injured due to her own

negligence and hence, railway administration is not responsible

for the incident.

7] In view of this report which is admitted, the learned

Tribunal held that as the cause of her death was her own

negligence it does not come within definition of 'untoward

incident' and accordingly absolved the respondent from paying

compensation to the applicant.

8] However, as rightly submitted by learned counsel for

the appellant death on account of negligence of the passenger

himself does not absolve the railway administration from the

liability of paying compensation to the legal heirs of deceased. The

provisions of Section 123(c)(2) and section 124(A) of the

fa-j 1147-16.odt

Railways Act, 1980 are very relevant to that effect. Section 123(2)

defines 'untowards incident' to mean accident falling of any

passenger from the train carrying passengers; whereas section

124(A) imposes liability of paying compensation to the injured or

to the legal heirs of the deceased on account of death, due to

untoward incident. As per the said Section, the liability of the

railways in case of such untoward incident is absolute, except in

the five eventualities provided in the Proviso. Those five

eventualities are from (a) to (e). As stated in the proviso, unless

and until railway administration succeeds in bringing its case in

any of those eventualities, railway administration cannot be

exempted from the liability to compensate the appellant. Those

eventualities are;

(a) suicide or attempted suicide; or

(b) self-inflicted injury;

(c) own criminal act, or

(d) any act committed by passenger in a state of intoxication or

insanity; lastly

(e) any natural cause or disease or medical or surgical treatment.

9] In the instant case, none of these exceptions can be

fa-j 1147-16.odt

said to be attracted. Neither it was a case of suicide or attempted

suicide nor it can be the case of self-inflicted injury; nor it can be

called as own criminal act of deceased because the criminal act

invites the mens rea or guilty intention which is conspiciously

absent in such accidental or negligent death. Even the statutory

report also concludes that it was a case of negligence on the part

of deceased herself. However, even in the case of negligence of a

bona fide passenger, the liability of railway administration is not

absolved or exhonerated. Here, in the case therefore, appellant is

entitled to get compensation from the respondent, as the death of

his mother fall was accidental and hence within the definition of

'untoward incident' as laid down in section 123(c)(2) of the

Railways Act.

10] As to what can be the amount of compensation, for

that learned counsel for the appellant has relied upon the

Notification issued by Ministry of Railway on 22.12.2016 making

certain Amendment and changes in the Rules framed under the

Railway Claims Tribunal Act, 1987. As per the said change, the

compensation amount in case of death of a bona fide passenger in

untoward incident is enhanced from Rs.4,00,000/- to

fa-j 1147-16.odt

Rs.8,00,000/- with effect from 1.7.2017. According to learned

counsel for appellant, the appellant is now entitled to get the

benefit of this amendment. To substantiate this submission,

learned counsel for appellant has relied upon the judgment of

Apex Court in the case of Rathi Menon Vs Union of India 2001

ACJ 721, wherein, having regard to the beneficial object of the

legislation, it was held that the injured or the legal heirs of the

deceased are entitled to compensation 'as prescribed' under the

Rules at the time of determination of compensation. In this

judgment, the Hon'ble Apex Court has considered the words "as

may be prescribed" and held that these words are required to be

understood as to mean "as may be prescribed from time to time".

It was further held that, merely because the claim petition remains

pending before the Tribunal or in the Court for years together it

will not deprive the applicant from getting benefit of the amended

legislation to have an enhanced amount of compensation.

11] Learned counsel for appellant has also placed reliance

upon the judgment of Calcutta High Court in the case of Bandana

Mishra Vs. Union of India II (2017) ACC 484 (Cal.), wherein

relying on this judgment of Hon'ble Apex Court in the case of

fa-j 1147-16.odt

Rathi Menon, the benefit of the recent Amendment made in

Rule-4 of 1990 Rules with effect from 1.1.2017, was extended to

the applicant and the compensation was enhanced from

Rs.4,00,000/- to Rs.8,00,000/-.

12] In the instant case, therefore, having regard to this

Amendment and also the legal position as laid down by the Apex

Court in the case of Rathi Menon, the amount of compensation to

which appellant becomes entitled is required to be held as

Rs.8,00,000/- as per the amended provision.

The appeal is therefore, allowed.

The impugned Judgment and order passed by learned

Railway Tribunal Claims stands quashed and set aside.

In consequence the application filed by the appellant

before the Tribunal for compensation is allowed.

Respondent is directed to pay compensation of

Rs.8,00,000/- to the appellant within three months with interest

@ 7.5 per annum from the date of claim application filed before

the Tribunal, till the date of the payment.

JUDGE

RGIngole