Bombay High Court
Dayaram S/O Premchand Chandravanshi vs Union Of India Thr. The General Manager, ... on 17 January, 2024
Author: G. A. Sanap
Bench: G. A. Sanap
2024:BHC-NAG:1245
-1- 901.FA.110.2012.Judgment.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO. 110 OF 2012
APPELLANT : Dayaram S/o. Premchand
Chandravanshi, Aged about 55 years,
Occ. Labourer, R/o. Kanhan Pipariya,
Tah. & Dist. Seoni (M.P.).
//VERSUS//
RESPONDENT : Union of India, through the General
Manager, South East Central Railway,
Bilaspur (C.G.).
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Mr. S. Raisuddin, Advocate for the Appellant.
Ms. Neerja Chaubey, Advocate for the Respondent.
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CORAM : G. A. SANAP, J.
DATED : 17th JANUARY, 2024.
ORAL JUDGMENT
In this appeal, filed under Section 23 of the Railway
Claims Tribunal Act, 1987 (for short, "the Act of 1987"), the
challenge is to the judgment and order dated 26 th September, 2011,
passed by the Railway Claims Tribunal, Nagpur Bench, Nagpur,
whereby the claim filed by the appellant came to be dismissed.
02] BACKGROUND FACTS:
The appellant-claimant is the husband of the deceased
Dularibai. On 28th January, 2010, Dularibai purchased a Second
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Class Ordinary Ticket bearing No.67053829 for herself and two
other adult persons to go to Nagpur from Bhoma. She boarded the
7 CN Chindwara to Nagpur Passenger Train at Bhoma Railway
Station on 28th January, 2010. It is stated that the deceased fell
down from the running train near Nagpur Railway Station on 29 th
January, 2010 and died due to the injuries sustained by her.
According to the appellant, the death was in an untoward incident.
The deceased was a bona fide passenger. The appellant, therefore,
claimed the compensation.
03] The respondent-Railway filed the written statement and
opposed the claim. The Railway has not disputed the journey by
the deceased from Bhoma to Nagpur with a valid journey ticket.
The Railway contended that the death was not in an untoward
incident and, therefore, the Railway was not liable to pay the
compensation. It was contended that the incident occurred due to
the negligence of the deceased and, therefore, the appellant would
not be entitled to get the compensation.
04] The parties adduced the evidence. The learned Member
of the Tribunal, on consideration of the evidence, found that the
death was not in an untoward incident and ultimately dismissed
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the claim. Being aggrieved by this judgment and order, the
appellant has come before this Court in appeal.
05] I have heard Mr. S. Raisuddin, learned advocate for the
appellant and Ms. Neerja Chaubey, learned advocate for the
respondent-Railway. Perused the record and proceedings.
06] The following points fall for my determination:
(a) Whether the deceased died in an untoward incident as
understood by Section 123(c)(2) of the Railways Act (for
short, "the Act of 1989")?
(b)Whether the deceased was a bona fide passenger travelling
with a valid journey ticket at the time of the incident?
07] The learned advocate for the appellant submitted that the
learned Member of the Tribunal has committed an error in
recording a finding that the death was not in an untoward incident.
The learned advocate submitted that the journey by the deceased
from Bhoma to Nagpur with a valid journey ticket has been
admitted. The learned advocate submitted that there is ample
evidence to establish that the deceased fell from the moving train
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due to a jerk to the train and died due to the injuries sustained in the
incident. The learned advocate, in order to substantiate his
submission that the defence of negligence or contributory
negligence in the facts and circumstances would not be available to
the respondent-Railway, has placed heavy reliance on the decision in
the case of Union of India Vs. Rina Devi [AIR 2018 SC 2362] . The
learned advocate submitted that the case of the appellant would be
covered by the first part of Section 124A of the Act of 1989 and,
therefore, the respondent-Railway would be liable to pay the
compensation.
08] The learned advocate for the respondent-Railway
submitted that one co-passenger has not been examined to establish
that the deceased fell from the running train due to a jerk and died.
The learned advocate submitted that the deceased, with the co-
passenger, might have come near the door of the train as the Nagpur
Railway Station was approaching, and due to her negligence, she
might have fallen from the running train. The learned advocate
submitted that the learned Member of the Tribunal has properly
appreciated the evidence on record and has come to a just and
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proper conclusion.
09] It is undisputed that the railway ticket was found from the
person of the deceased at the time of the panchanama. It is
undisputed that, along with the deceased, a co-passenger had also
fallen from the running train and died in the hospital during the
course of treatment. The learned Member of the Tribunal has
recorded a finding that the deceased was a bona fide passenger. This
finding has not been challenged by the Railway by filing a separate
appeal. In view of this, the only question that needs to be addressed
is whether the death of the deceased was in an untoward incident as
understood by Section 123(c)(2) of the Act of 1989. There is ample
evidence on record to show that, at some distance from Nagpur
Railway Station Platform, the deceased fell from the moving train. It
is the case of the appellant that the deceased, with the remaining two
co-passengers, had to de-board at Nagpur Railway Station, and,
therefore, they were preparing to get down. It is contended that due
to a sudden jerk to the train, the deceased lost her balance and fell
down from the moving train. It is the defence of the Railway that the
deceased was careless and negligent and, therefore, she might have
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fallen from the train. It is the contention of the Railway that the
injuries sustained due to the negligence of the deceased would be
self-inflicted injuries, covered by the proviso to Section 124A of the
Act of 1989.
10] In my view, this issue can be addressed on the basis of the
law laid down by the Hon'ble Apex Court in the case of Rina Devi
(supra). Paragraph 16.6 would be relevant for the purpose of
addressing the issue. It is reproduced below:
"16.6. We are unable to uphold the above view as the
concept of 'self inflicted injury' would require intention to
inflict such injury and not mere negligence of any
particular degree. Doing so would amount to invoking the
principle of contributory negligence which cannot be
done in the case of liability based on 'no fault theory'. We
may in this connection refer to judgment of this Court in
United India Insurance Co. Ltd. v. Sunil Kumar [AIR
2017 SC 5710] laying down that plea of negligence of the
victim cannot be allowed in claim based on 'no fault
theory' under Section 163A of the Motor Vehicles Act,
1988. Accordingly, we hold that death or injury in the
course of boarding or de-boarding a train will be an
'untoward incident' entitling a victim to the compensation
and will not fall under the proviso to Section 124A merely
on the plea of negligence of the victim as a contributing
factor."
-7- 901.FA.110.2012.Judgment.odt
11] The Hon'ble Apex Court has held that in such a claim, the
principle of contributory negligence cannot be invoked, inasmuch as
the liability is based on 'no fault theory'. It is held that the plea of
negligence of the victim cannot be allowed in a claim based on 'no
fault theory'. It is further held that the death or injury in the course
of boarding or de-boarding a train will be an 'untoward incident'
entitling a victim to the compensation and will not fall under the
proviso to Section 124A of the Act of 1989 merely on the plea of
negligence of the victim as a contributing factor. In my view, for the
purpose of self-inflicted injury, intention would be required. Mere
negligence would not be construed as an intention to cause self-
inflicted injury. In this case, the Railway has not come before the
Court with the case that the deceased was run over by any train
while crossing the railway line or dashed by any train while crossing
the railway line. Undisputedly, the deceased was travelling from
Bhoma to Nagpur by the train in question. The incident occurred at
some distance away from the Nagpur Railway Station Platform. The
deceased was accompanied by two co-passengers. One of the co-
passengers also died due to a fall in the said incident.
-8- 901.FA.110.2012.Judgment.odt
12] In the facts and circumstances, I am of the view that the
death of the deceased was in an untoward incident as understood by
Section 123(c)(2) of the Act of 1989. The death of the deceased
would not be covered by any of the clauses of the proviso to Section
124A of the Act of 1989. In view of this position, I am of the view
that the learned Member of the Tribunal was not right in rejecting
the claim. Accordingly, I record my findings on the above points in
the affirmative. The impugned judgment and order deserves to be
set aside.
13] The learned advocate for the appellant submits that in
view of the law laid down in the case of Union of India Vs. Radha
Yadav [(2019) 3 SCC 410], the appellant would be entitled to get the
compensation of Rs.8,00,000/- (rupees eight lakhs only) without
interest. The learned advocate has relied upon a Notification issued
by the Ministry of Railways (Railway Board) dated 22nd December,
2016, wherein it is stated that in case of the death claim, the claimant
is entitled to a compensation of Rs.8,00,000/-. In view of the
decision in the case of Radha Yadav (supra), appellant is entitled to a
compensation of Rs.8,00,000/- (rupees eight lakhs only) without
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interest.
14] Accordingly, the first appeal is allowed.
i. The judgment and order dated 26th September, 2011,
passed by the Railway Claims Tribunal, Nagpur Bench,
Nagpur in Claim Application
No.OA(IIu)/NGP/2010/0251 is set aside. The claim
petition is allowed.
ii. The respondent-Railway shall pay the compensation of
Rs.8,00,000/- (Rupees Eight Lakhs Only) to the
appellant within four months from the date of uploading
of this judgment. If the amount is not deposited within
four months from the date of uploading of this judgment,
then the respondent-Railway shall pay interest @ 6% per
annum from the date of this judgment till its realization.
iii. The amount of compensation be deposited directly in the
bank account of the appellant. The appellant is directed to
provide his bank account details to the respondent-
Railway.
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15] The first appeal stands disposed of in the aforesaid terms.
No order as to costs. Pending applications, if any, stand disposed of.
(G. A. SANAP, J.)
Vijay
Signed by: Mr. Vijay Kumar
Designation: PA To Honourable Judge
Date: 01/02/2024 15:48:55
