Union Of India vs Margina Bewa
2023 Latest Caselaw 6762 Cal

                          IN THE HIGH COURT AT CALUTTA
                             Civil Appellate Jurisdiction
 5.10.2023
 SL No.8 &9
Court No. 551
    Ali


                                  F.M.A. 1109 of 2015
                IA No.:CAN/1/2014 (Old No:CAN/9571/2014)
                       CAN/2/2018 (Old No:CAN/8549/2018)

                                  Union of India
                                     Versus
                                   Margina Bewa
                                      With

                             FMA 1110 of 2015

                                  Margina Bewa
                                     Versus
                                  Union of India
                  Mr. S.N. Sukul,
                  Mr. Sagnik Chatterjee
                        ...for the appellant/claimant in FMA 1110 of
                         2015 and respondent in FMA 1109 of 2015.

Mr. Soumak Bera, Mr. Subrata Santra ......for the respondent in FMA 1110 of 2015 and appellant in FMA 1109 of 2015.

Both the appeals have been preferred against

the judgment dated 15th of November, 2013 passed

by the Vice-Chairman of Railway Claims Tribunal,

Kolkata in claim Application No. OA

(IIU)/0123/2010).

The claim application was allowed by the

learned tribunal and the learned tribunal has

awarded a sum of Rs. 4,00,000/- in favour of the

claimants. The Railway Authority has preferred the

appeal challenging the compensation and the

claimants have also preferred the appeal on the

ground that the learned tribunal has not awarded

any interest upon the compensation.

Learned advocate for the Railway Authority

submits that the impugned award passed by the

learned tribunal is erroneous. The learned tribunal

must have considered the evidence of eye witness

who deposed as AW-2 before the learned tribunal. He

again argued on perusal of the cross-examination of

AW-2, it would be revealed that there are gross

negligence on the part of the victim himself,

consequently he fell down from the train and died on

spot. He further pointed out that the learned tribunal

has failed to appreciate the provisions of law

enumerated under Section 124-A (b) regarding "self-

inflicted injury". In this particular case, the fact goes

to show that the victim was standing recklessly and

in front of the door of the train loaded with

passengers and due to his own negligence he felt

down from the train. The learned tribunal has not put

emphasis upon the evidence of AW-2 and passed the

impugned judgment erroneously. The learned

advocate for the appellant also argued that the

instant accident is not beyond reasonable doubt;

there is no Railway memo in respect of the said

accident when it has been alleged by the petitioners

that the accident happened at Khagraghat Railway

Station. The initiation of the incident Khagraghat

G.R.P.S. Case without a railway memo of station

master is doubtful. He prayed for setting aside the

impugned award.

Learned advocate appearing on behalf of the

claimants submits before this court that the entire

evidence of AW-2, who is the eye witness of the

accident has been considered by the learned tribunal.

During the examination-in-chief, the AW-2 depose the

fact of the accident; it has been stated by the AW-2

that while the victim along with two persons were

returning after visiting a patient at Kolkata and when

they wanted to get down in the platform of

Khagraghat Road Railway Station, at that time, due

to sudden jerk, victim fell down from the train and

entered into between the train in the platform and

died on the spot. He further argued that the learned

tribunal has considered the entire evidence of AW-2

including the chief and the cross-examination.

During the cross-examination though the AW-2

stated that the victim was standing and fell down due

to his own negligence but by virtue of Hon'ble

Supreme Court laid down in Prabhakaran Vijaya

Kumar and Ors. reported in 2008 (SC) 689 and

Rina Devi reported in (2019) 3 SCC 572 that the

said death of the victim cannot be turned as a "self-

inflicted injuries".

He submitted that the learned tribunal has not

considered the interest on compensation thus, the

appeal has been preferred and by virtue of the

decision of the Hon'ble Supreme Court passed in

Rina Devi. The claimants are entitled to get the

interest over the awarded sum.

Heard the learned advocate perused the

impugned judgment. The learned tribunal in

considering the entire case before him; he has taken

the argument of the respondent Railway Authority.

The averment of the Railway Authority regarding the

cross-examination of the AW-2 was also considered

and the learned tribunal has considered the provision

of Section 124-A (b) of the Railways Act and is of clear

view that the onus is upon the Railway Authority to

prove that the instant incident is termed as 'Self-

Inflicted' injury and it is within the purview Sub-

Section (a) to (e) under Section 124-A of the Indian

Railway Act. He is of the view that the Railway

Authority has fell to shift the burden thus the award

was passed. He also categorically discussed about the

self-inflicted injuries at inner page six (6) of the

impugned award and by virtue of the Full Bench

Judgment of Hon'ble High Court passed in Union of

India Vs. K. Balakrishnan Kani he termed the said

injury is not under the purview of the "self-inflicted

injury".

Let me consider whether the observation of

the learned tribunal in respect of the "self inflicted

injury" is correct or not. It appears from the cross-

examination of AW-2 that the victim fell down due to

his own negligence. The entire evidence goes to show

that the victim along with other two relatives

including the AW-2 were returning from Kolkata and

they were wanted to de-board from the train at the

said Railway Station. It also the fact that the train

was over crowded at that point of time. It is the

statement of AW-2 that the victim was trying to get

down from the running train. The entire fact goes to

show that the victim was in hurry and whether such

hurry which resulted the injury to the victim can be

termed under the purview of "self-inflicted injury".

The term "self-inflicted injury" has been specifically

defined and clarified by the Hon'ble Supreme Court in

Union of India Vs. Prabhakaran Vijaya Kumar and

Ors. reported in 2008 (SC)689 and also Union of

India Versus Rina Devi reported in (2019) 3 SCC

572. The paragraph 25 of the observation of the

Hon'ble Apex Court passed in Rina Devi is necessary

to set out in this case:-

25. "We are unable to uphold the above view as the concept of "self- inflicted injury" would required 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 the judgment of this Court in United India

Insurance Co. Ltd. V. Sunil Kumar laying down that plea of negligence of the victim cannot be allowed in claim based on "no fault theory" under Section 163-A 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 124-A merely on the plea of negligence of the victim as a contributing factor".

So, considering the present law laid down by

the Hon'ble Supreme Court passed in Rina Devi, I

am of the view that the observation of the Hon'ble

Supreme Court regarding the "self-inflicted injury"

has negated the argument of the Railway Authority

was correct. The learned tribunal has correctly set

aside the plea of the Railway Authority and passed

the award successfully. In my view, there is no

infirmity in the award passed by the learned tribunal.

The person who wanted to get down from the train

and fell down in between train and platform is not

come under the purview of the "self-inflicted injury".

Moreover, the final investigation report of the

police goes to show that there are Railway memo on

the basis of which the Khagraghat, Police Station

U.D. Case No. 7 of 2009 dated 04.04.2009 was

started. The Surathal report also goes to show that

the victim suffered an untoward incident. Observing

all the materials, I think it necessary to hold that the

observation of the learned tribunal is very much

correct. There is no merit to entertain the appeal

lodged by Railway Authority.

In considering the appeal filed by the

claimants, it is the observation of the Hon'ble

Supreme Court in Rina Devi that in all cases of

compensation, the claimants are entitled to get the

interest. In this case, the same ratio may be adopted

thus the award passed by the learned tribunal must

have carried some interest.

In considering the entire facts and

circumstances of this case, in my view that the award

passed by the learned tribunal shall carry interest @

9% per annum from the date of filling of the claim

case. After calculating the principal alongwith the

interest if the award come less than Rs.8,00,000/-

then the award should be at least Rs.8,00,000/- and

if the award coupled with interest goes beyond Rs.

8,00,000/- then the higher amount of award shall be

passed. Respondent Railway authority is directed to

deposit the award along with interest to the office of

the learned Registrar General, High court, Calcutta

within ten weeks from this date. On such deposit the

claimants are at liberty to receive the same according

to the prevalent Rules.

It appears from the order of this court dated 11

of March, 2015 that a direction was made to the

Railway Authority to deposit the awarded sum of Rs.

4,00,000/- with the Registry. If the same was

complied with, Railway Authority need not to deposit

the same again; the deposit must have carried some

interest. The claimants are at liberty to receive the

same along with accrued interest; remaining award is

to deposited as per direction made above.

Accordingly, FMA 1109 of 2015 alongwith

FMA 1110 of 2015 are disposed of.

All connected applications, if any, stand

disposed of.

Interim orders, if any, stand vacated.

Parties to act upon the server copy and

urgent certified copy of this order be provided on

usual terms and conditions.

(Subhendu Samanta, J.)