Sheikh Mohammad Rahim vs Union Of India Through The General ...
2021 Latest Caselaw 577 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 90 of 2017
                          ........

1. Sheikh Mohammad Rahim

2. Sheikh Mohammad Jasim .... ..... Appellants Versus Union of India through the General Manager, South Eastern Railway, Kolkata .... ..... Respondent .......

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO (Through : Video Conferencing) ............

For the Appellants : Mr. Girish Mohan Singh, Advocate. For the Respondent : Mr. Gautam Rakesh, Advocate.

........

10/08.02.2021.

Heard, learned counsel for the appellants, Mr. Girish Mohan Singh and learned counsel for the respondent / railway, Mr. Gautam Rakesh.

Learned counsel for the appellants has submitted that the claimants namely, (i) Shiekh Mohammad Rahim, and (2) Shiekh Mohammad Jasim, both sons of Late Shiekh Mohammad Salim are the appellants before this Court and they have preferred this appeal against the judgment dated 11.02.2016 passed by learned Member (Judicial), Railway Claims Tribunal, Ranchi Bench in Case No. OA(IIU)/RNC/2014/0037, whereby the claim application of the applicants / appellants has been dismissed on the ground that the deceased was an employee of Sri Ganesh Dubey, Contractor of Ganesh Enterprises and he was travelling in an L.M. Trolly for site inspection. One multiple Light Engine coming from opposite side got head to head collision resulting in the death of Shiekh Mohd. Salim and one Budhu Ram Mahali, Head Trackman. since the deceased was not a bonafide passenger as defined under Section 2 (29) of the Railways Act, nor the incident is defined under Section 123(c)(2) of the Railways Act nor the claim application is maintainable under Section 124-A of the Railways Act.

Learned counsel for the appellants has submitted that the deceased was a "railway servant" as defined under Section 2(34) of the Railways Act as well as the counter affidavit admits the same position in para-7 at page-3&4 of the counter affidavit dated 14.01.2020, which may be profitably quoted hereunder:-

"7. That for presenting the background of the case it may be referred here that the case of the appellants as claimed is that the father of the appellant the deceased S.M. Salim was a registered contractor under South Eastern Railway for track work under the name and style of M/s J.R. Construction for which he was proprietor. Under an agreement executed between railway and M/s J.R. Construction through S.M. Salim track work was executed. The deceased was authorized to use trolly for inspection of track work of railway of work done. On 09.11.2013 when the deceased was travelling in the trolley provided by railway authority and was on the way an rail engine came from opposite side and dashed front to front and the deceased died on the spot. An U.D. Case was registered being U.D. Case No. 02/2013."

Learned counsel for the appellants has further submitted that it was an accident which took place in discharge of the duty, though the deceased was an employee of the Contractor, but in discharge of the duty for proper functioning of the Railways, as such, he comes under the definition of the bonafide passenger under Section 2 (29) or railway servant under Section 2(34) of the Act and the incident comes under Section 123(c)(2) of the Railways Act.

Learned counsel for the appellants has thus submitted that the appeal may be allowed and the compensation may be granted and as the incident was of dated 09.11.2013, the compensation may be enhanced as subsequently, Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, has been amended vide the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, which is applicable with effect from 01.01.2017, whereby the amount of compensation has been enhanced from Rs. 4,00,000/- to Rs. 8,00,000/- for Part-I death and in view of the ratio laid down by the Hon'ble Apex Court in the case of Union of India Vs. Radha Yadav reported in 2019 (3) SCC 410, wherein the Hon'ble Apex Court has held in paragraph-11 as under:-

"11. ...................... For instance, in case of a death in an accident which occurred before amendment, the basic figure would be Rs 4,00,000. If, after applying reasonable rate of interest, the final figure were to be less than Rs 8,00,000, which was brought in by way of amendment, the claimant would be

entitled to Rs 8,00,000. If, however, the amount of original compensation with rate of interest were to exceed the sum of Rs 8,00,000 the compensation would be in terms of figure in excess of Rs 8,00,000. The idea is to afford the benefit of the amendment, to the extent possible. Thus, according to us, the matter is crystal clear. The issue does not need any further clarification or elaboration."

Learned counsel for the appellants has further submitted that in view of the judgment of the Apex Court in the case of Thazhathe Purayil Sarabi & Others Vs. Union of India & Another reported in (2009) 7 SCC 372, the interest may be paid @ 7.5% from the date of filing of the claim application till the date of actual indemnifying of award. Paragraph - 38 of the aforesaid judgment is re-produced hereunder:-

"38. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period in which the same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principle relating to payment of interest on money claims."

Learned counsel for the respondent - Railway has opposed the prayer and has submitted that the impugned judgment does not require any interference by this Court and has placed reliance upon para-10 of the counter affidavit and has submitted that Section 2(34) defined the "railway servant" but the deceased was admittedly employee of a Contractor, as such, he will not come under the definition of the "railway servant" as defined under Section 2(34) of the Railways Act, and as such, the claim application is not maintainable in view of Section 124-A of the Railways Act. Para-10 of the counter affidavit dated 14.01.2020 is re-produced hereunder:

10. That the following important points have come in the enquiry which was there in the DRM Report-

(i) It has come in the enquiry report that the death occurred during the work of verification of Ms Ganesh Enterprises and not in the work of J.R. Construction.

(ii) In the DRM report it has been mentioned that on 09.11.13 the deceased Seikh Md. Salim with other 06 persons namely, (i) P K Sukla SSE (P Way)/BDO (ii) Sri Lallin Mahto - Trolly Man, (iii) Budh Ram Mahli - Head track Man (iv) Sri Biswanath Murmu - trolly Man (v) Sri Rameshwar Hembram (vi) Sri Ganesh Dubey - Contractor - M/s Ganesh Enterprises left BDO at 10:45 hrs towards OND by LMT (Light Motor Trolly) for the purpose of verification works. In the mean time one Multi Light Engine coming from the opposite side had Head On Collision. Two persons (Seikh Md. Rahim the deceased here and Budh Ram Mahli - Head Track Man) died on the spot. 05 persons got injured.

(iii) P K Shkla SSE (P Way)/BDO was examined his statement was recorded.

He stated that LMT does not include under the definition of TRAIN, which is mentioned in GR1.02 (58) and if incident takes place the contractor himself is liable to compensate to his representative which is shown in Clause no. 57 GCC.

(iv) P K Shkla SSE (P Way)/BDO stated that there was no work of M/s J.R. Construction in his section. There was work of M/s Ganesh Enterprises.

(v) Legal heirs of deceased / appellant had received amount from M/s Ganesh Enterprises. But they deny that this was compensation for the death of deceased. Whereas M/s Ganesh Enterprises says that the amount paid compensation for the death of deceased.

(vi) The appellant Seikh Md. Rahim was examined. He stated that he has received 02 cheques of 03 Lakhs from Ganesh Enterprises out of which 01 was issued by Shiv Shankar Dubey father of Ganesh Dubey of Ganesh Enterprises for Rs. 01 (one) lakh on 11.03.2014 and another cheque was issued by Ganesh Dubey (Contractor) for 02 lakhs on 26.03.14. Further he stated that the received amount was not compensation as it was remaining amount of his father (deceased).

(vii) Sri Ganesh Dubey the contractor was also examined. He stated that the son of deceased came to him and asked for compensation for death of his father during work of his contract as there was no provision for compensation from Railway in this case. Hence, the above mentioned amount was paid by Sri Ganesh Dubey as compensation for the death of the deceased.

It is important to take into note that the death of deceased occurred in the section where the work of contractor M/s Ganesh Dutt was running and not in the work of M/s J.R. Contractor - Proprietor Sheikh Mohammad (the deceased).

Learned counsel for the respondent-railway has further submitted that Clause-19 of the Agreement for Track Work is relevant, which has been brought on record as Annexure-B to the counter affidavit dated 28.02.2020, which reads as under:-

19. Contractor should take all precaution for safety of his / their labour. The Railway will not entertain any claim towards accident whatsoever of the labour engaged by the contractor.

After hearing the learned counsel for the parties, looking into facts and circumstances of the case, it appears that proviso (a) to (e) of Section 124-A of the Railways Act says 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 valid ticket for travelling by a train carrying passengers, on any date or a valid platform ticket and becomes a victim of any untoward incident.

This Court finds that the deceased did not fall under proviso

(a) to (e) of Section 124-A of the Railway Act.

So far counter affidavit filed by the Railway particularly Para- 7 dated 14.01.2020 specifically admits that the deceased Shiekh Mohammad Salim, working under Contractor Ganesh Dubey, but was travelling in discharge of duty in L.M. Trolly for site inspection, to look after work done on the track along with one Budh Ram Mahali, Head workman and due to head on collision with one multiple light engine coming from opposite side both died on the spot. The trolley was carrying several persons including officials of the Railways. Large number of documents have been adduced on

behalf of the claimant, which has been brought on record as (a) to (n) at Para-5 of the impugned judgment i.e. a. FIR-Exh.A1.

b.       Dead body challan-Exh.A2
c.       Inquest Report-Exh.A3
d.       Post-mortem Report-Exh.A4
e.       Photo copy of Death Certificate of Shiekh Mohammad Salim.
f.       Photo copy of Death Certificate of Shamima Khatoon.
g.       Agreement for Track work in two sheets - Exh.A5.
h.       Quotation -Exh.A6.
i.       Tender Schedule-Exhs. A7, A8, A9, A10 & A11.
j.       Special conditions of contract in three sheets-Exh. A12
k.       Additional Special conditions-Exh.A13.
l.       Photo copy of Bank Particulars.
m.       Cognizance order dtd. 02.02.2015 - Exh. A14 and
n.       Complain petition in case no. 140/2015-Exh. A15.

The Railways has also adduced documents, which have been brought on record as (a) to (l) at para-6 of the impugned judgment i.e.:-

a.       DRM's report-Exh.R1
b.       Letter dtd. 05.1.15 of Sr. DSC/RPF/SER/CKP-Exh.R2
c.       Letter dtd. 12.12.14 of SIPF/RPF/Tata-Exh.R3
d.       Letter dtd. 12.12.14 of RPF/Post/Tata-Exh.R4
e.       Photo copy of Cheque dtd. 26.02.14 of Rs. 2 lakhs-Exh.R5
f.       Photo copy of Cheque dtd. 11.3.14 of Rs. 1 lakh-Exh.R6.
g.       Work Order dtd:03.9.13-Exh. R7.
h.       Letter dtd:01.10.13 of DRM (Engg.)/SER/CKP-Exh.R8
i.       UID Card of Sri Ganesh Dubey-Exh.R9
j.       Statement of Sri P.K. Shukla, SSE(P.Way)/CKP-Exh.R10.
k.       Statement of Sri Shiekh Md. Rahim-Exh.R11 and
l.       Statement of Sri Ganesh Dubey-Exh.R12.

Considering such situation, if Contractor was authorized to work on the Railway Track and his man was working along with the other Railway Officials, there is no reason that why the Railway

shall not pay compensation to such employee, who was authorized the work on the Railway Track.

So far liability upon the Contractor to pay compensation as advanced by learned counsel for the Railway is concerned, this Court is of the opinion, that the same will come under the Employees' Compensation Act, but so far beneficial legislation act, which is enacted as Railways Act is concerned, the same is applicable in the case of the deceased.

Under the aforesaid circumstances, this Court is of the opinion that in benevolent legislation such definition are not required as mentioned in Section 2(29) or exception of Section 124-A of the Railways Act, 1989. In absence of any contrary evidence brought on record by the Railways to bring the claim application under the proviso of Section (a) to (e) of Section 124-A of the Railways Act, this Court is inclined to set aside the impugned judgment.

Accordingly, the appeal is allowed.

Railway is directed to indemnify Rs. 4,00,000/- along with interest @ 7.5% from the date of filing of the claim application till the date of actual indemnifying the award or Rs. 8,00,000/- whichever is higher in favour of the appellants in view of the judgment passed by the Apex Court passed in the case of Radha Yadav (Supra).

Let the LCR be sent down.

(Kailash Prasad Deo, J.) Sunil/-