Delhi High Court
Union Of India vs Shukh Lal Mandal & Anr. on 27 July, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO No.408/2008
% July 27th, 2011
UNION OF INDIA ...... Appellant
Through: Ms. Geetanjali Mohan, Advocate
VERSUS
SHUKH LAL MANDAL & Anr. ...... Respondents
Through: Mr. R.R.Jangh, Advocate
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this first appeal under Section 23
of the Railway Claims Tribunal Act, 1987 is to the impugned judgment of
the Railway Claims Tribunal dated 6.6.2008 which allowed the claim
petition of the respondents, and which petition was filed for claiming
compensation for the death of one Sh. Nagardeep Mandal.
2. The facts as laid out in the claim petition were that the
deceased was a bonafide passenger travelling on 8.6.2003. On the train
FAO 408/2008. Page 1 of 5
journey when the train passed through Turiganj Railway Station, the
deceased fell down from the running train on being pushed by the heavy
crowd of passengers and jerk of the train. The deceased Nagardeep
Mandal was travelling with Mr. Bikash Chandra Mandal who pulled the
chain and whereby the train stopped. Sh. Nagar Deep Mandal had in the
meanwhile succumbed to his injuries on account of the fall from the train.
The only defence of the appellant/respondent before the Railway Claims
Tribunal was that the deceased died due to his own negligence as he was
standing at the door of the sleeper class compartment and where he
slept and therefore fell off the train due to his own negligence.
3. The Railway Claims Tribunal has referred to the testimony of
the co-passenger AW-2 Bikash Chandra Mandal as to the untoward
incident and held that the death of the deceased was on account of
having been pushed out by heavy crowd of passengers and the jerk in
the train. It was established on record that the compartment was
overcrowded. The Railway Claims Tribunal also noted that the deceased
was forced to take a seat near the door because of this overcrowding and
from where he fell down. The Railway Claims Tribunal also held that the
Railways failed to show that there was no overcrowding in the train. Few
of the relevant observations of the Railway Claims Tribunal which are
relevant, read as under:-
FAO 408/2008. Page 2 of 5
"That is to say, the deceased was sitting at the gate not
by choice, but out of the compulsion. It is a matter of
common knowledge that the railway tickets are issued
from one station to the other without even having any
data as to whether the seats are available in the train for
the passenger, who is purchasing the ticket. The Tickets
are issued at random without even specifying whether the
passenger has to travel by boarding the train at the gate
or on the roof top or hanging on the steps of the
compartment. As I have already noticed, the respondent
Railway Administration has not been able to show that
there was no over-crowding in the train and that the
deceased was not required to travel in the train by sitting
near the gate. It has also not been able to show that the
passengers commensurate to the seats available in the
compartment had boarded the train. On the other hand,
the material placed on record would clearly reveal that the
compartment was over-crowded with passengers and the
deceased was forced to take a seat near the gate of the
compartment. In the fact situation, the Railway
Administration cannot be allowed to run away from its
responsibility that a human being has to travel and it is
not the luggage, which is to be carried and dumped.
Railways owe certain common law duty while dealing in
such a hazardous transport system. There is a duty cast
on the Railways to ensure safety of passengers travelling
in the train. In the instant case, there is nothing on record
to show that the Railways have acted reasonably and
properly to ensure safety of passengers."
4. I may note that the impugned judgment is dated 6.6.2008
and whereafter the legal position has been settled by the Supreme Court
in the recent decision of Jameela & Ors. vs. UOI, (2010) 12 SCC 443.
Paras 7,10, 11 and 12 of the judgment are relevant and the same read as
under:-
"7. We are of the considered view that the High Court gravely
erred in holding that the applicants were not entitled to any
FAO 408/2008. Page 3 of 5
compensation under Section 124-A of the Act, because the
deceased had died by falling down from the train because of
his own negligence. First, the case of the Railways that the
deceased M.Hafeez was standing at the open door of the train
compartment in a negligent manner from where he fell down is
entirely based on speculation. There is admittedly no
eyewitness to the fall of the deceased from the train and,
therefore, there is absolutely no evidence to support the case
of the Railways that the accident took place in the manner
suggested by it. Secondly, even if it were to be assumed that
the deceased fell from the train to his death due to his own
negligence it will not have any effect on the compensation
payable under Section 124-A of the Act.
10. It is not denied by the Railways that M. Hafeez fell down
from the train and died while travelling on it on a valid ticket.
He was, therefore, clearly a "passenger" for the purpose of
Section 124-A as clarified by the Explanation. It is now to be
seen, that under Section 124-A the liability to pay
compensation is regardless of any wrongful act, neglect or
default on the part of the Railway Administration. But the
proviso to the section says that the Railway Administration
would have no liability to pay any compensation in case death
of the passenger or injury to him was caused due to any of the
reasons enumerated in clauses (a) to (e).
11. Coming back to the case in hand, it is not the case of the
Railways that the death of M.Hafeez was a case of suicide or a
result of self-inflicted injury. It is also not the case that he died
due to his own criminal act or he was in a state of intoxication
or he was insane, or he died due to any natural cause or
disease. His falling down from the train was, thus, clearly
accidental.
12. The manner in which the accident is sought to be
reconstructed by the Railways, that the deceased was
standing at the open door of the train compartment from
where he fell down, is called by the Railways itself as
negligence. Now negligence of this kind which is not very
uncommon on Indian trains is not the same thing as a criminal
act mentioned in clause (c) to the proviso to Section 124-A. A
criminal act envisaged under clause (c) must have an element
FAO 408/2008. Page 4 of 5
of malicious intent or mens rea. Standing at the open doors of
the compartment of a running train may be a negligent act,
even a rash act but, without anything else, it is certainly not a
criminal act. Thus, the case of the Railways must fail even
after assuming everything in its favour." (Emphasis added).
5. A reading of the ratio in the case of Jameela (supra) shows
that even if the deceased fell from the train due to his own negligence it
will not have any effect on the compensation payable under Section 124-
A of the Railways Act, 1989. This is specifically stated by the Supreme
Court in para 7 of the judgment. It is also the ratio of the judgment in
Jameela's case (supra) that unless a criminal act as envisaged under
Clause (c) of Section 124A of the Act has an element of malicious intent
or mens rea, it would not mean that the incident is not an untoward
incident inasmuch standing at the open doors of a compartment of a
running train may be a negligent act, even a rash act but the same is
certainly not a criminal act.
6. In view of the above, there is no merit in the appeal. The
appeal is accordingly dismissed leaving the parties to bear their own
costs. Trial court record be sent back.
JULY 27, 2011 VALMIKI J. MEHTA, J.
ib
