Delhi High Court

Attar Singh vs Union Of India on 29 October, 2014

$~18
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Decided on 29th October, 2014
+      FAO 264/2012

       ATTAR SINGH
                                                            ..... Appellant
                          Through Ms Rupika Singh, Adv. for Mr Navneet
                          Goyal, Adv.

                          versus

       UNION OF INDIA
                                                              ..... Respondent

Through Ms Priyanka Terdal, Adv.

CORAM:

HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1. Appellant filed a claim petition before the Railway Claims Tribunal

seeking compensation of four lakhs under Section 124-A of the Railways

Act, 1989 („Act‟, for short), on account of injury sustained in an "untoward

incident‟‟ relating to a train on 14th January, 2010. By the order impugned

in this appeal, Tribunal has dismissed the claim petition.

2. As per the appellant, on 14th January, 2010, he along with his wife

was to going from Shakur Basti to Sampla. He along with his wife went to

Shakur Basti Railway Station and purchased tickets. Thereafter, they

reached platform no.2, in order to board Firozpur Janta Express. Platform

was overcrowded. Appellant succeeded in boarding the train but his wife

could not board the train as the train started moving without any signal and

whistle. Appellant turned his head to see as to whether his wife had boarded

or not. In the meanwhile, he slipped and got trapped in the gap between the

platform and train due to sudden jerk and sustained injuries in his legs. He

was moved to Bhagwan Mahavir hospital for medical treatment. His both

legs had to be amputated. Journey tickets were lost in the incident.

3. Respondent denied its liability to pay compensation to appellant. It

was alleged that appellant was not a „bonafide passenger‟ of the train. He

did not suffer injuries in any „untoward incident‟. He sustained injuries on

account of his negligence, carelessness and wrong act, as such the incident

was not covered under Section 123(c) of the Railways Act, 1989.

Accordingly, appellant was not entitled to any compensation under Section

124-A of the Act.

4. Following issues were framed by the Tribunal:

(1) Whether the injured Shri Attar Singh S/o Shri Ram Mehar, was a bona fide passenger of Firozpur Janta Express Train (train number not mentioned) from Shakur Basti to Sampla, as on 14.01.2010?

(2) Whether the applicant has received injuries in an untoward incident as alleged in the claim application? If so, what effect?

(3) What were the nature of injuries suffered by the applicant?

(4) To what amount of compensation, if any, is the applicant injured entitled?

(5) Relief?

5. Appellant filed his affidavit Ex.AW-1/1, along with certain

documents. As against this, respondent filed DRM‟s report along with

certain documents which were exhibited as Ex.R-1(colly). Tribunal

scrutinized the entire evidence, which had come on record and held that

appellant was not a „bonafide passenger‟ of the train as no ticket was

recovered from him. It was further held that injuries sustained by the

appellant were „self-inflicted injuries‟. Accordingly, appellant was not

entitled to any compensation under Section 124-A of the Act.

6. I have heard the learned counsel for the parties and perused Tribunal‟s

record and am of the view that Tribunal has erred in denying compensation

to appellant. Non-recovery of ticket by itself would not be sufficient to

conclude that the appellant was not a „bonafide passenger‟ of the train, more

so, when possibility of losing ticket is there keeping in mind the nature of

accident and the fact nothing was recovered from his possession. It is trite

law that non-recovery of ticket is not always fatal and each case has to be

viewed in its own facts keeping in mind advertent circumstances. Appellant

has taken plea that his ticket was lost. As per the appellant he got trapped in

the gap between train and platform and his legs were crushed. He further

deposed that even his clothes were torn. Ticket along with money was kept

in the shirt pocket. Appellant was travelling along with his wife which fact

is corroborated from the police investigation. Since nothing was recovered

from his possession, his statement that ticket along with other belongings

were lost inspires confidence, more so, when his presence at the railway

station is established from the documentary evidence available on tribunal‟s

record. This fact has been totally ignored by the Tribunal.

7. Appellant has not only stated in the petition but has also deposed that

he along with the wife was trying to board the train at Shakur Basti railway

station. There was rush in the train. He succeeded in boarding the train but

his wife could not board the train since it started moving all of a sudden. He

looked back to verify as to whether his wife had boarded the train or not and

found that she could not board the train. In the meanwhile, he slipped from

the train and was entrapped in the gap between platform and the train. It is

not the case that train had picked up the speed and had crossed the platform

and despite this appellant jumped from the train. No such evidence was led

by the respondent. Even in cross-examination appellant has stuck to his

stand that when he looked back he fell down on account of sudden jerk of

train. From his statement it appears to be a case of „accidental fall‟ from the

train and it would certainly not come in the ambit of „self-inflicted injuries‟

as defined in the proviso to Section 124-A of the Act nor can he be said to

be guilty of criminal negligence.

8. Section 123(c) and Section 124-A read 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".

"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 dependant 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 travelling by a train carrying passengers, on any date or a valid platform ticket and becomes and victim of an untoward incident."

9. A perusal of Section 123(c) of the Act shows that accidental fall from

the train tantamount to an „untoward incident‟. A perusal of Section 124-A

makes it clear that liability of the railway is „strict liability‟ and the Railways

would be liable to pay compensation inspite of rash and negligent act of the

victim unless such acts amount to criminal negligence or fall within the

exceptions as provided in the proviso to Section 124-A of the Act. In Union

of India V. Prabhakaran Vijaya Kumar & Ors. (2008) 9 SCC 527 the

Supreme Court has held thus:

"14. In our opinion, if we adopt a restrictive meaning to the expression 'accidental falling of a passenger from a train carrying passengers' in Section 123(c) of the Railways Act, we will be depriving a large number of railway passengers from getting compensation in railway accidents. It is well known that in our country there are crores of people who travel by railway trains since everybody cannot afford traveling by air or in a private car. By giving a restrictive and narrow meaning to the expression we will be depriving a large number of victims of train accidents (particularly poor and middle class people) from getting compensation under the Railways Act. Hence, in our opinion, the expression 'accidental falling of a passenger from a train carrying passengers' includes accidents when a bona fide passenger i.e. a passenger traveling with a valid ticket or pass is trying to enter into a railway train and falls down during the process. In other words, a purposive, and not literal, interpretation should be given to the expression."

10. In judgment dated 18th February, 2014 passed in FAO No.401/2010

titled Gaurav Kapoor & Ors. Vs. Union of India, a learned Single Judge

of this court has held thus: "Legislature has specifically enacted Section

123(c) and Section 124-A of the Railways Act, 1989 and imposed strict

liability thereby upon the Railways. As per the judgments of the Supreme

Court in the cases of Union of India Vs. Prabhakaran Vijaya Kumar &

Ors. (2008) 9 SCC 527 and Jameela and Ors. Vs. Union of India (2010)

12 SCC 443 the liability of Railways is a strict liability even if there is

negligence of a passenger i.e. unless and until the negligence is a criminal

negligence or a case of suicide or self inflicted injuries, Railways are held

liable on account of an untoward incident which causes death of a passenger.

The entire emphasis of Sections 123(c) and 124A are to give relief to a