Delhi High Court
Union Of India vs Harkesh & Ors on 1 June, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 01st June, 2018
4
+ FAO 109/2017 & CM APPLN. 8273/2017
UNION OF INDIA ..... Appellant
Through: Ms. Rashmi Malhotra and Mr.
Himanshu Kaushik, Advocates
versus
HARKESH & ORS ..... Respondents
Through: Mr. Saurabh Pandey and Mr. Alok
Kumar Palai proxy for Mr. Yogesh
Swroop, Advocate
5
+ FAO 45/2018
HARKESH ..... Appellant
Through: Mr. Saurabh Pandey and Mr. Alok
Kumar Palai proxy for Mr. Yogesh
Swroop, Advocate
versus
UNION OF INDIA ( MINISTRY OF RAILWAY) ..... Respondent
Through: Ms. Rashmi Malhotra and Mr.
Himanshu Kaushik, Advocates
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
]
JUDGMENT (ORAL)
1. The parties have challenged the award of the Railway Claim Tribunal
whereby compensation of Rs.4,00,000/- along with interest @ 9% per
annum has been awarded to the parents of Late Pradeep Sharma alias Sunny.
2. Harkesh and Savitri Devi (Respondent no.1 and 2 in FAO 109/2017
and appellants in FAO 45/2018) hereinafter referred to as 'the claimants'
filed an application for compensation before the Railways Claim Tribunal on
the averments that on 29th August, 2015, Pradeep Sharma alias Sunny along
with his aunt boarded the train from Shahdara Railway Station after
purchasing a valid ordinary second class ticket; train was over crowded;
when the train started moving, Pradeep fell down from moving train due to
sudden jerk/jolt and push/pull of the passengers and suffered grievous
injury; the right hand of the Pradeep amputated; the hand bag containing the
clothes, money and railway tickets was lost during the accident; Pradeep was
taken to G.T.B. Hospital, Delhi and thereafter, shifted to Safdarjung
Hospital, Delhi where he succumbed to his injuries during medical treatment
on 6th September, 2015.
3. The Railways contested the claim on various grounds interalia that
the deceased was not a bonafide passenger as he was not holding a valid
railway ticket and he was negligent in trying to catch the moving train and;
the injuries suffered by deceased are self-inflicted and therefore, the
claimants are not entitled to any compensation.
4. The Railway Claims Tribunal held the incident to be an untoward
incident within the meaning of the Section 123(c) read with 124A(b) of the
Railways Act, 1989. The Claims Tribunal further held that the negligence of
the deceased is of no consequence in view of the principles of strict liability
of the Railways. The Claims Tribunal awarded compensation of
Rs.4,00,000/- along with interest @ 9% per annum from the date of filing of
the claim application.
5. Learned counsel for the Railways urged at the time of the hearing that
the deceased was negligent in trying to catch a moving train and, therefore,
the claimants are not entitled to any compensation.
6. Learned counsel for claimants urged at the time of hearing that there
was no negligence on the part of the deceased. Without prejudice, it is
submitted that the negligence of the deceased is of no consequence. It is
submitted that the claimants are entitled to compensation of Rs.8,00,000/-
along with interest thereon according to Schedule of the Railway Accident
Untoward Incidents (Compensation) Amendment Rules, 2016. Reliance is
placed on the recent judgment of the Supreme Court in Union of India v.
Rina Devi, 2018 SCC OnLine SC 507.
7. In Rina Devi (supra) the Supreme Court held that death or injury in
the course of boarding or de-boarding a train to be an untoward incident
entitling the victim to compensation and such cases will not fall under the
proviso of Section 123A of the Railways Act, 1989. The relevant portion of
the said judgement is reproduced herein under:-
"8. ............... A submission has been filed by the Registrar
Principal Bench, Railway Claims Tribunal seeking clarification
on four subjects which repeatedly arise before the said Tribunal
i.e. :
(i) ..........
(ii) .....
(iii) The concept of self inflicted injury: Whether attempt of
getting into or getting down a moving train resulting in an
accident was a case of „self inflicted injury‟ so as not to entitle
to any compensation or no such concept could not apply under
the scheme of law which casts strict liability to pay
compensation by the Railway under Sections 124 and 124A. In
this regard views of the High Courts of Kerala in Joseph
PT v. Union of India, Bombay in Pushpa v. Union of India and
Delhi in Shayam Narayan v. Union of India may appear to be
against the decisions of this Court in Union of
India v. Prabhakaran Vijaya Kumar and Jameela v. Union of
India.
xxx xxx xxx
25. We are unable to uphold the above view as the concept of
„self inflicted injury‟ would require 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
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 163A 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 124A merely on the plea of negligence of
the victim as a contributing factor."
(Emphasis Supplied)
8. This case squarely covered by the principles laid down by the
Supreme Court in Rina Devi (supra). Applying the aforesaid principles, this
Court holds the incident in question to be an untoward incident and the
claimants are entitled to the compensation from Railways.
9. With respect to the quantum of compensation, the Supreme Court, in
Rina Devi (supra) held that the compensation will be payable as applicable
on the date of the accident but if the amount prescribed on the date of the
award is higher than the amount payable on the date of the accident, then the
claimant would be entitled to the higher of the two amounts. The relevant
portion of the said judgement is reproduced herein under:-
"8. ...............issue of apparent conflict in Rathi
Menon v. Union of India and Kalandi Charan Sahoo v. General
Manager, South-East Central Railway, Bilaspur as to the
relevant date for applying the rate of compensation when
different rate is applicable at the time of filing of claim and on
the date of the order. A submission has been filed by the
Registrar Principal Bench, Railway Claims Tribunal seeking
clarification on four subjects which repeatedly arise before the
said Tribunal i.e. :
(i) Quantum of compensation: It is stated that there is a
conflict in the decisions in Rathi Menon (supra) and Kalandi
Charan Sahoo (supra) which needs clarification. We have
already taken note of this issue.
xxx xxx xxx
19. Accordingly, we conclude that compensation will be payable
as applicable on the date of the accident with interest as may be
considered reasonable from time to time on the same pattern as
in accident claim cases. If the amount so calculated is less than
the amount prescribed as on the date of the award of the
Tribunal, the claimant will be entitled to higher of the two
amounts. ........................................................................
..................... Compensation as applicable on the date of the
accident has to be given with reasonable interest and to give
effect to the mandate of beneficial legislation, if compensation
as provided on the date of award of the Tribunal is higher than
unrevised amount with interest, the higher of the two amounts
has to be given.
(Emphasis Supplied)
10. 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. Applying the
principles laid down in Rina Devi (supra) in present case, the claimants are
held entitled to Rs.8,00,000/- in terms of the Railways Accidents and
Untoward Incidents (Amendment Compensation) Amendment Rules, 2016
which prescribes compensation of Rs.8,00,000/- in case of death with effect
from 1st January, 2017.
11. FAO 109/2017 is dismissed, FAO 45/2018 is allowed and the
claimants are held entitled to compensation of Rs.8,00,000/- along with
interest @ 9% per annum from the date of the application i.e. 03 rd
December, 2015. Pending application is disposed of.
12. The Railways is directed to deposit enhanced compensation amount
along with interest @ 9% per annum with the Registrar General of this Court
within six weeks from today.
13. List for disbursement of compensation amount on 16th July, 2018.
14. The claimants shall remain present in Court on the next date of
hearing along with the passbooks of their savings bank account with Union
Bank of India, Naveen Shahdara, Delhi with proper endorsement in terms of
order dated 21st November, 2017 and 30th November, 2017.
15. Copy of this judgment be given dasti to counsels for the parties under
the signature of Court Master.
JUNE 01, 2018 J.R. MIDHA
ds (JUDGE)
