U.O.I. (G.M./Ser/Kol) Through vs Smt. Saroj Devi
2021 Latest Caselaw 706 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 14 of 2011
                          ........

U.O.I. (G.M./SER/KOL) through the Deputy Chief Commerical Manager, for General Manager, South Eastern Railway, 14 Strand Road, Kolkata .... ..... Appellant Versus Smt. Saroj Devi .... ..... Respondent

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

For the Appellant : Mr. Sudhir Kumar, Advocate. For the Respondent : Mr. Krishna Mohan Murari, Advocate.

........

14/15.02.2021.

Heard, learned counsel for the appellant, Mr. Sudhir Kumar on behalf of the Railway and learned counsel for the respondent- claimant, Mr. Krishna Mohan Murari.

Appellant-Railway has preferred this appeal against the award dated 08.09.2010 passed by learned Member (Judicial), Railway Claims Tribunal, Ranchi Bench, in Case No. TAU/RNC/1999/0034; Old No. TTU-99034/99; RCT/Patna's No. OA-9900074, whereby the claim application filed by the claimant has been allowed by awarding compensation to the tune of Rs. 4,00,000/- with interest @ 9% per annum from the date of filing of the claim application i.e. 11.03.1999 and the share has been allotted as Rs. 2½ lakhs to the wife and Rs. 1½ lakhs to the minor child.

Learned counsel for the appellant has submitted that deceased Manoj Kumar Paswan was travelling in train no. 313 UP, on 28.07.1998 without having valid ticket in over-crowded train without understanding the repercussions. If the space was not there he should not have boarded the train and under the said circumstances, learned Tribunal has wrongly passed the impugned award in favour of the claimant relying upon the evidence of uncle of the deceased namely, Sheo Ratan Paswan, who has been examined as A.W.-2 and as such, this Court may set aside the impugned judgment and Award.

Learned counsel for the respondent-claimant has submitted that the deceased Manoj Kumar Paswan was travelling through Train No. 313 UP Passenger from Gomoh Station to Chakradharpur

Station on 28.07.1998 after having a second class ordinary ticket purchased by maternal uncle Sheo Ratan Prasad, then A.S.I., of the police posted & deployed at GRP Gomoh, the person died because of jostling and heavy rush in the train.

Learned counsel for the claimant has submitted that in view of evidence brought on record by A.W.-1, Saroj Devi, wife of the deceased Manoj Kumar Paswan and A.W.-2, Sheo Ratan Paswan, the Tribunal has rightly allowed compensation in view of the judgment passed by the Apex Court passed in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572 (para-29) and in view of the judgment passed by the Apex Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar reported in (2008) 9 SCC

527. Para-29 of the Rina Devi (Supra) judgment is profitably quoted hereinbelow:-

"29. We thus hold that mere presence of a body on the railway premises will not be conclusive to hold that injured or deceased was a bona fide passenger for which claim for compensation could be maintained. However, mere absence of ticket with such injured or deceased will not negative the claim that he was a bona fide passenger. Initial burden will be on the claimant which can be discharged by filing an affidavit of the relevant facts and burden will then shift on the Railways and the issue can be decided on the facts shown or the attending circumstances. This will have to be dealt with from case to case on the basis of facts found. The legal position in this regard will stand explained accordingly."

(emphasis supplied)

Paragraph-14 to 17 & 22 to 24 of the Prabhakaran Vijaya Kumar (Supra) judgment are re-produced below:-

"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 travelling 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 travelling 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.

15. Section 2(29) of the Railways Act defines "passenger" to mean a person travelling with a valid pass or ticket. Section 123(c) of the Railways Act defines "untoward incident" to include the accidental falling of any passenger from a train carrying passengers. Section 124-A of the Railways Act with which we are concerned states:

"124-A. Compensation on account of untoward incidents.-- 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 dependent 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 a victim of an untoward incident."

(emphasis supplied)

16. The accident in which Smt Abja died is clearly not covered by the proviso to Section 124-A. The accident did not occur because of any of

the reasons mentioned in clauses (a) to (e) of the proviso to Section 124- A. Hence, in our opinion, the present case is clearly covered by the main body of Section 124-A of the Railways Act, and not its proviso.

17. Section 124-A lays down strict liability or no fault liability in case of railway accidents. Hence, if a case comes within the purview of Section 124-A it is wholly irrelevant as to who was at fault.

22. Strict liability focuses on the nature of the defendants' activity rather than, as in negligence, the way in which it is carried on (vide 'Torts by Michael Jones, 4th Edn. p. 247). There are many activities which are so hazardous that they may constitute a danger to the person or property of another. The principle of strict liability states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part. As Fleming says "permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overheads".

23. Thus in cases where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault.

24. The basis of the doctrine of strict liability is two fold (i) The people who engage in particularly hazardous activities should bear the burden of the risk of damage that their activities generate and (ii) it operates as a loss distribution mechanism, the person who does such hazardous activity (usually a corporation) being in the best position to spread the loss via insurance and higher prices for its products.

Learned counsel for the respondent-Claimant has submitted that the learned Tribunal has rightly allowed compensation along with interest @ 9% from the date of filing of the claim application i.e. 11.03.1999 which has not been indemnified by the respondent- Railway, as such in view of the recent judgment passed by the Apex Court in the case of Union of India Vs. Radha Yadav reported in 2019 (3) SCC 410, this Court may enhance the compensation to the tune of Rs. 8,00,000/- in view of the recent amendment made in the Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, which is applicable from 01.01.2017 or Rs. 4,00,000/- along with interest @ 7.5%, whichever is higher in favour of the claimant.

Para-11 of the aforesaid judgment is re-produced hereunder:-

"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."

After hearing learned counsel for the parties and on the basis of material brought on record, I find that there is no illegality in the impugned order in view of the evidence brought on record by A.W.- 1 Saroj Devi and A.W.-2 Sheo Ratan Paswan and the judgment referred above.

Accordingly, the appeal is dismissed.

So far interest is concerned, that shall be paid by appellant- Railway as per the Award passed by the learned Tribunal from the date of filing of the claim application i.e. 11.03.1999 till the date of indemnifying the award @ 9% or Rs. 8,00,000/- whichever is higher in favour of the claimant in view of the judgment passed by the Apex Court in the case of Radha Yadav (Supra).

(Kailash Prasad Deo, J.) Sunil/-