Somvati & Ors. vs Union Of India
2017 Latest Caselaw 4008 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Decision: 9th August, 2017

+     FAO 482/2013 & CM 9228/2014

      SOMVATI & ORS.                                    ..... Appellants
                     Through:         Mr.Rajnish K. Jha, Advocate.
              versus

      UNION OF INDIA                           ..... Respondent
                    Through: Ms. Prerna Mehta, Advocate.
      CORAM:
      HON'BLE MR. JUSTICE J.R. MIDHA

                            JUDGMENT

1. The appellant has challenged the order dated 22nd October, 2013 whereby the Railway Claims Tribunal has dismissed their application for compensation.

2. On 9th June, 2011, late Krishan @ Kala went to Narela Railway Station along with his brother-in-law, Satveer Singh and purchased a ticket to go to Samalakha. Krishan and his brother-in-law were waiting for the passenger train on the foot over bridge at platform no.1. At about 7:00 pm on 9th June, 2011, train no.64534 came from Sonipat side and the crowd of passengers came down from that train and Krishan fell down from the platform in the space between two compartments and suffered fatal injuries. Krishan @ Kala was survived by his widow and three minor children who filed an application for compensation before the Claims Tribunal.

3. The Railway Claims Tribunal dismissed the application holding that the deceased was not a victim of an untoward incident within the meaning of

Section 123(c) read with Section 124A of the Railways Act, 1989.

4. Learned counsel for the appellants urged at the time of the hearing that the Station Master of Narela Railway Station appeared in the witness box as RW-1 and admitted that the deceased fell down from train no.64534 on platform no.1. The Station Master proved the report dated 9 th June, 2011 whereby he reported to General Railway Police (GRP) that a passenger has fallen down from train no.64534 and the dead body was lying on platform no.1.

5. Learned counsel for the respondent urged at the time of the hearing that the deceased fell between the train and platform while trying to get on to the platform from wrong side.

6. The record of the Railway Claims Tribunal has been perused. The appellants examined two witnesses, namely, Somvati, widow of the deceased and Satveer Singh, eye witness of the incident. Satveer Singh deposed in his affidavit by way of evidence that he along with the deceased were waiting for a passenger train on the foot over bridge of platform no.1 when the deceased was smashed by the crowd whereupon the deceased fell down in the space between the two bogies of the train. The Station Manager of Railways appeared in the witness box as RW-1 and admitted that the deceased fell down from train no.64534 and died on platform no.1.

7. Section 124-A of the Railways Act is based on the principle of no fault liability and the compensation cannot be denied to the appellant on the ground that the deceased was negligent and it is wholly irrelevant as to who was at fault. Section 123(c) of the Railways Act defines 'untoward incident' to include the accidental falling of any passenger from a train carrying passengers. The word 'passenger' has been defined under Section 2 (29) of

the Railways Act defines as a person travelling with a valid pass or ticket. The Explanation to Section 124A clarifies that the word 'passenger' includes a railway servant on duty; and a person who has purchased a valid ticket for travelling by a train or a valid platform ticket and becomes a victim of an untoward incident. As such, there are three categories of persons who are defined as passengers: - (i) a person with a valid ticket to travel; (ii) a person who holds a railway pass to travel and (iii) a person who holds a platform ticket. In every one of the categories, so long as a person is in railway premises or a train, he shall be taken as a passenger. His or her presence in the railway premises or a train shall be taken as authorized. It is for this reason that there are decisions which make an extended meaning to the definition passenger to a person who comes into the platform and gets into a wrong train (Gaurav Kapoor v Union of India, (2014) 3 HCC (Del)

735) or a person who purchases a passenger train ticket and gets into an express train (Santoshi v Union of India, 2014 SCC Online Del 6510(Del)); person travelling atop a train and not inside a passenger compartment (Raj Pal Goel v. Union of India, 2014 ACJ 2415) or a person breaking journey without an endorsement and getting into another in continuation of the journey to the destination station (Dwarika Mahto v. Union of India, 2013 ACJ 768). In all these situations, it is possible to feed meaning and logic to the decisions, only if we recognise that primacy always is the lawful authority to enter the railway premises when the incident of travel itself becomes secondary. The judicial tool of liberal construction for a welfare legislation could alone justify these decisions in order that the categories of persons to whom the benefit is intended to apply, being generally poor where only a modest compensation is provided under the Act, ought not to

be denied even such a small benefit.

8. In the present case, the deceased was admittedly a bona fide passenger holding a valid ticket bearing No.28530063 at the time of the accident. The deceased fell down from platform no.1 between platform and the train which resulted in fatal injuries. The Station Manager of Railways has admitted the accident in his statement as well as in the letter Ex.R-1 sent to GRP Railways. The report of DRM Railways referred to by Railway Claims Tribunal has not been proved by the Railways. This Court is of the view that the accident in question is an untoward incident and therefore, the appellants are entitled to compensation under Section 124A of the Railways Act and this case does not fall in any of the clauses (a) to (e) of the proviso to Section 124A.

9. The next question arises for consideration is whether the appellant is entitled to Rs.4 lakh as per the original claim before the Railways Claims Tirbunal or Rs.8 lakhs as per the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016

10. The Railway Accident (Compensation) Rules, 1990 has been amended by Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016 w.e.f. 01st January, 2017. By the said amendment, the compensation for death has been enhanced from Rs.4 lakhs to Rs.8 lakhs.

11. In Rathi Menon v. Union of India, (2001) 3 SCC 714, Rathi Menon, a Commerce graduate of 22 years, secured a job in Bangalore and was called for an interview at Trichur. On her way back to Bangalore on 3rd September, 1999, she boarded the Island Express (bound for Bangalore) at 8.00 P.M. from Palakkad Railway Station. After the train started moving and

when it collected momentum, her ill-luck prompted her to have a face wash for which she moved to the wash basin situated next to the door of the train. While washing her face the train jerked violently at a turning and in that impact she was thrown off the running train during the night. Her spinal cord was ruptured and she turned a paraplegic and remained immovable forever. After she fell down, the wheels of the train ran over her right arm severing it from the shoulder point forever. The train, not knowing what it did to one of its lawful and innocent passengers, continued its running leaving the paraplegic on the track itself on that dreadful night. It was physiologically impossible for the young lady to move her leg from the position where she fell. Her right leg happened to remain on the rail-track, and unless a Good Samaritan had passed by that track during the night she had to remain there unmoved. As none like that came the poor female human being remained on the track bleeding and unattended by anyone. Alas, within half an hour another train came along the same track which, without knowing that a badly mauled human being was lying ahead, ran over her right leg causing a sudden amputation of that leg also. Thus, within the span of less than an hour, she became a one-handed and one-legged paraplegic. All those disasters happened during the night of 3rd September, 1996. While she remained on the track unattended by any one she happened to be spotted by an engine driver who was shunting a railway engine. He got her removed from that scene to the district hospital, and then to a Medical College Hospital where she had to undergo a long period of hospitalization and remained immovable forever.

The Railway Claim Tribunal awarded Rs.6 lakh along with interest @ 15% per annum which was challenged before the Kerala High Court on the

ground that the Claims Tribunal awarded compensation beyond the amount prescribed in the Railway Accident and Untoward incidents (Compensation) Rules 1990. The Division Bench of the High Court allowed the appeal and reduced the compensation amount. The Supreme Court reversed the judgment of the Division Bench of the High Court and restored the order of the Claims Tribunal. The Supreme Court held that the compensation amount has to be determined according to the Rules prescribed at the time of making the order for payment of the compensation. Relevant portion of the said judgment is reproduced hereunder:

"12. As the above facts are not disputed by the Railway Administration the appellant was relieved of the burden to prove those facts averred in her claim petition. Thus, the only question which remained for the Claims Tribunal to decide was regarding the amount of compensation payable to her. Now the only question remaining is whether the High Court was so helpless that learned Judges could not confirm the amount awarded to her by the Claims Tribunal.

xxx xxx xxx

16. The liability of the Railway Administration in such a case would be to pay compensation, but the extent of such compensation is as may be prescribed which means prescribed by the rules made under the Act. Section 129 of the Act empowered the Central Government to make such rules.

17. The Railway Accident Compensation Rules 1990 (for short the Rules) were made by the Central Government in exercise of the powers conferred on it by Section 129 of the Act. Rule 3(1) says that the amount of compensation payable in respect of death or injuries shall be as specified in the Schedule. The Rules as well as the Schedule were amended with effect from 1.11.1997. After the amendment Rule 3(2) reads thus:

"3.(2) The amount of compensation payable for an injury not specified in Part II or Part III of the Schedule but which in the opinion of the claims Tribunal, is such as to

deprive a person of all capacity to do work, shall be Rupees four lakhs."

18. Item No.2 of Part III of the Schedule relates to amputation below shoulder with stump less than 8 from tip of acromion for which an amount of Rs.3.20 lakhs is shown as the compensation.

19. Item 20 in Part III of the Schedule relates to amputation below knee with stump exceeding three and a half inch but not exceeding five inches, for which an amount of Rupees two lakhs is shown as compensation.

20. Before the said amendment of the Rules and the Schedule which came into effect on 1.11.1997 the above amounts were respectively two lakhs (instead of rupees four lakhs) and 1.40 lakhs (instead of 3.20 lakhs) and one lakh (instead of two lakhs). Such amounts were revised by the Central Government in 1990. The revision of the rates was made after 8 years and thus the new rates were incorporated by amending the Schedule.

xxx xxx xxx

23. The collocation of the words "as may be prescribed" in Section 124-A of the Act is to be understood as to mean "as may be prescribed from time to time". The relevance of the date of untoward incident is that the right to claim compensation from the Railway Administration would be acquired by the injured on that date. The statute did not fix the amount of compensation, but left it to be determined by the Central Government from time to time by means of rules. This delegation to the Central Government indicates that it was difficult for Parliament to fix the amount because compensation amount is a varying phenomenon and the Government would be in a far advantageous position to ascertain what would be the just and reasonable compensation in respect of a myriad different kinds of injuries by taking into account very many factors. What the legislature wanted was that the victim of the accident must be paid compensation and the amount must represent a reality which means the amount should be a fair and reasonable compensation. The Government has the better wherewithals to ascertain and fix such amount. It is for the said reason that Parliament left it to the Government to discharge that function. Sections 124 and 124-A of the Act speak the same language that "the Railway Administration shall be liable to pay compensation". As pointed above,

it is the liability of the Railway Administration to "pay compensation to such extent as may be prescribed". Hence the time of ordering payment is more important to determine as to what is the extent of the compensation which is prescribed by the rules to be disbursed to the claimant.

xxx xxx xxx

25. ............ The provisions are not intended to give a gain to the Railway Administration but they are meant to afford just and reasonable compensation to the victims as a speedier measure. If a person files a suit the amount of compensation will depend upon what the court considers just and reasonable on the date of determination. Hence when he goes before the Claims Tribunal claiming compensation the determination of the amount should be as on the date of such determination."

12. The Supreme Court further held that where the appeals are pending before the High Court, the scale of compensation shall depend on the date on which the High Court delivers the judgment. Relevant portion of the judgment is reproduced hereunder:

"29. The unjust consequence resulting from the interpretation which the Division Bench placed can be demonstrated in another plane also. If a person who sustained injury in a railway accident or in an untoward incident was disabled from making an application immediately and he makes the application a few years hence, is he to get the compensation in terms of the money value which prevailed on the date of the accident? Suppose a Tribunal wrongly dismissed a claim after a few years of filing the application and the claimant approaches the High Court in appeal. As it happens quite often now, some High Courts could take up such an appeal only after the lapse of many years and if the appeal is decided in favour of the claimant after so many years, what a pity if the amount awarded is only in terms of the figure indicated on the date of the accident.

30. From all these, we are of the definite opinion that the Claims Tribunal must consider what the Rules prescribed at the time of making the order for payment of the compensation."

(Emphasis Supplied)

13. The Supreme Court explained the rational for granting compensation as per prescribed Rules at the time of making order as under:

"24......... when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value.

xxx xxx xxx

27.........Rupee value is not an unchanging unit in the monitory system. Students of economic history know that currency value remained static before the Second World War. But the post World War II witnessed the new phenomenon of vast fluctuations in money value of currency notes in circulation in each nation. When the U.S. Dollar has registered a steep upward rise, currencies in many other countries made downward slip. What was the value of one Hundred rupees twenty years ago is vastly different from what it is today. This substantial change has caused its impact on the cost of living also.

28......... what you were to pay ten years ago to one person cannot be the same if it is paid today in the same figure of currency notes. It is for the purpose of meeting the reality that Central Government changed the figures."

(Emphasis Supplied)

14. It is well settled that the appeal is the continuation of the claim petition and the power of the Appellate Court is co-extensive with that of the Claims Tribunal. Reference may be made to Sardar Tajender Singh Gambhir v. Sardar Gurpreet Singh, 2014 (10) SCC 702.

15. Applying the principles laid down by the Supreme Court in Rathi Menon (supra), this Court holds that the appellant is entitled to compensation of Rs.8 lakh according Schedule to Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016 (as on the date of this judgment).

16. The appeal is allowed and compensation of Rs.8 lakh along with

interest @ 9% per annum from the date of filing of the claim application is awarded to the appellant. Pending application is disposed of.

17. The Railways is directed to deposit the aforesaid amount with UCO Bank, Delhi High Court Branch by means of a cheque drawn in the name of UCO Bank A/c Somvati within a period of four weeks from today.

18. List for disbursement of the compensation amount on 15th September, 2017.

19. The appellant shall remain present in Court on the next date of hearing along with passbook of her savings bank account near the place of her residence as well as PAN Card and Aadhar Card.

20. Copy of this judgment be given dasti to counsels for the parties.

AUGUST 9, 2017                                                  J.R. MIDHA, J.
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