Delhi High Court
Union Of India (Uoi) vs Md. Sakur on 9 April, 2008
Author: P Nandrajog
Bench: P Nandrajog
JUDGMENT
Pradeep Nandrajog, J.
1. Heard learned Counsel for the appellant and the respondent.
2. Appellant, Indian Railways, is aggrieved by an order dated 16.5.2006 passed by the Railway Claims Tribunal allowing compensation in sum of Rs. 4 lakhs to the complainant whose son has been held to have suffered an untimely death at an untoward incident when traveling as a bona fide passsenger in the Mahananda Express. The deceased was traveling from Delhi to Mansi Junction vide train No. 4084 Dn. Mahananda Express. The accident in question took place about 7 km away from Barauni Junction. That the deceased was a bona fide passenger in the train was established with reference to a journey-cum- reservation ticket authorizing the holder thereof to undertake the journey from Delhi to Mansi. The Tribunal has believed the testimony of the witnesses of the claimant that the bogie was overcrowded and the deceased could not reach his seat and due to a sudden jerk he fell off the train.
3. Section 123(c) defines an 'untoward incident'. The same reads as under:
123(c) "untoward incident" means-
(1)(i) the commission of a terrorist act within the meaning of Sub-section (1) of Section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(ii) the making of a violent attack or the commission of robbery or dacoity; or
(iii) the indulging in rioting, shoot-out or arson, by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or
(2) the accidental falling of any passenger from a train carrying passengers.
4. Suffice would it be to note that the accidental falling of a passenger from a train is treated to be an untoward incident. Under Section 124A compensation on account of an untoward incident is payable provided the passenger does not suffer the death from the injury due to the acts enumerated in the proviso to sub-section.
5. Section 124A reads as under:
124A. Compensation on account of untoward incident.-When in the course of working a railway an untoward incident occurs, 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 passenger who has been injured or the dependent of a passenger who has been killed to maintain an action and recover damages in respect thereof, the railway administration shall, notwithstanding anything contained in any other law, be liable to pay compensation to such extent as may be prescribed and to that extent only for loss occasioned by the death of, or injury to, a passenger as a result of such untoward incident:
Provided that no compensation shall be payable under this section by the railway administration if the passenger dies or suffers injury due to-
(a) suicide or attempted suicide by him;
(b) self-inflicted injury;
(c) his own criminal act;
(d) any act committed by him in a state of intoxication or insanity;
(e) any natural cause or disease or medical or surgical treatment unless such treatment becomes necessary due to injury caused by the said untoward incident.
Explanation.-For the purposes of this section, "passenger" includes-
(i) a railway servant on duty; and
(ii) a person who has purchased a valid ticket for traveling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of an untoward incident.
6. It would be relevant to note that a self-inflicted injury is one out of the 5 acts enumerated under the proviso.
7. It is urged in the instant appeal that it is pleaded by the claimants in the claim petition that the deceased was in the process of boarding the train at Barauni Junction. It is urged that said pleading itself shows that the deceased attempted to board a running train and hence would be responsible for his act.
8. The pleading relied upon in the statement of claim reads as under:
The deceased and three others family members traveling as a bonafied passenger all having of Train No. 4084, Dn. Mahananda Ex. Reservation Ticket from Delhi to Mansi Jn. There was heavy crowed in the aforesaid train and the crowed became increase in Barauni Jn. The deceased could not entered into the bogie for occupy his birth when the train arrived between Umesh Nagar and Khagaria Jn. He fell down from aforesaid train due to pushed out by heavy crowed of passengers and jurk of the train he died on spot.
9. To a reader with bare minimum knowledge of English language it would be evident that the draftsman of the claim application is fairly innocent regarding English language. The author of the claim has incorrectly reflected the intent of the pleadings.
10. The pleadings have to be understood with reference to the fact that the deceased had undertaken the journey from Delhi railway station. Barauni is nearly a 1000 km away. It is obvious that the deceased had got down at Barauni Junction probably to buy some goodies. He obviously re-boarded the train. The argument advanced by learned counsel for the appellant while interpreting the pleadings in the claim petition would have merited consideration if the deceased would have fallen off the train a few hundred yards away from the platform of Barauni Junction. The fact that the deceased fell off the train at a distance of about 7 km from the Barauni Junction therefore assumes relevance. The passenger train would have taken at least 3-4 minutes to travel 7 km. This is sufficient time for any one to be well entrenched inside the bogie.
11. There is evidence on record that the bogie was overcrowded. It cannot be lost sight of that the deceased was traveling on a reserved ticket meaning thereby the bogie was a reserved bogie. It is obvious that the railway authorities had permitted unreserved passengers to enter the bogie. This is the reason why the deceased could not reach his berth and remained entrapped at the door of the bogie.
12. While considering evidence and decided issues of fact, realities of life cannot be ignored. Evidence has to be probablized with a commonsensical approach. The Court has to be live to the realities of the railways in India.
13. It is thus obvious that the deceased died when the train was suddenly jolted at a distance of about 7 km from Barauni Junction.
14. Learned counsel for the appellant cites 1984 ACJ 719 Union of India v. Sunil Kumar Ghosh to urge that the said decision defines what an accident is. Counsel says that the decision holds that when a train is shunted it is bound to jerk and a jerk is not an accident. Counsel urges that this is the ratio of the decision in this consideration.
15. I am afraid, said decision has no relevance inasmuch as the decision considered what is an accident as defined under Section 82-A of the Railway Act 1890.
16. The accident in question took place on 5.5.2000. In the year 1989 the Railways Act 1989 had come into force. By virtue of Act No. 28 of 1994 Sub-clause C of Section 123 was inserted to define an untoward incident. Vide Sub-clause 2 thereof accidental falling of a passenger from a train was included as within the meaning of an untoward incident.
17. No case is accordingly made out to interfere with the impugned order. The appeal is dismissed.
18. Pursuant to the order dated 15.9.2006 execution was stayed subject to the amount being deposited with the Registry within 6 weeks.
19. If the amount has been deposited the same shall be paid over, together with accrued interest to the respondent and his wife as per the concluding para of the impugned order.
20. No costs.
