Udha Devi vs Union Of India Through The General ...
2021 Latest Caselaw 708 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             (Civil Miscellaneous Appellate Jurisdiction)
                    M.A. No. 439 of 2019
                           ........

1. Udha Devi

2. Rani Kumari .... ..... Appellants Versus Union of India through the General Manager, East Central Railway, Hajipur .... ..... Respondent .......

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

For the Appellants : Mr. Vijay Shanker Jha, Advocate. For the Respondent : Md. Jalisur Rahman, Advocate.

........

06/15.02.2021.

Heard, learned counsel for the appellants, Mr. Vijay Shanker Jha and learned counsel for the respondent / railway, Md. Jalisur Rahman.

Learned counsel for the appellants has submitted that the appeal has been preferred by the the claimants / appellants namely,

(i) Udha Devi, wife of Late Udheshwar Singh, and (ii) Rani Kumari, minor daughter of deceased Udeshwar Singh, represented through her mother Udha Devi, being the natural guardian against the judgment dated 12.04.2019 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench in Case No. OA(IIU)/RNC/35/2018, whereby the claim application of the claimants / appellants has been dismissed.

Learned counsel for the appellants has submitted that there is delay of 46 days in preferring the appeal and for condonation of the same, I.A. No. 2947/ 2020 has been preferred.

Learned counsel for the appellants has submitted that it is a benevolent legislation and the poor lady and her minor daughter could not prefer the appeal within time, as such, the delay in filing the instant miscellaneous application may be condoned.

Learned counsel for the respondent-Railway has opposed the prayer.

Under the aforesaid facts and circumstances, in a benevolent legislation, I.A. No. 2947/2020 is allowed.

Learned counsel for the appellants has further submitted that bread-earner of the family Udheshwar Singh lost his life while

travelling by Palamu Express Train No. 13348 UP being a bonafide passenger on 01.05.2017 and to that effect, evidence has brought on record.

Learned counsel for the appellants has relied upon the evidence of A.W.-1 particularly para-3 to 6 & 8 to 13 of her cross- examination and court questions para-1 to 11. The aforesaid paras are re-produced hereunder:-

3. iz'u vki ?kVuk gksrs gq, ugha ns[ks Fks\ mÙkj& th gkWa ugha ns[ks Fksa 4- iz'u&vkids ifr dkSu Vsªu ls tk jgs Fks\ mÙkj& iykew ,Dlizsl Vsªu ls tk jgs FksA 5- iz'u& D;k ;s Vsªu dk fVdV dVk;s Fks\ mÙkj& mlds lkFk ,d vkneh yo dqekj flag oks oksyk Fkk fd mudks fVdV dVk fn;s gSa vkSj oks Vsªu esa cSB x;k Fkk ;s ckr gesa crk;s FksA 6- iz'u& ;s ckr xyr gSa fd vkidks vkidk ifr dkSu ls ugha crk;k Fkk\ mÙkj& esjs ifr Qksu ls gesa ;s ckr crk;s Fks fd yo dqekj fVdV dVk fn;k gSa vkSj ge ?kj vk jgs gSA 8- iz'u& vki ?kVuk dk fjiksVZ Fkkuk esa fd;s Fks rks vki ;s fVdV okyh ckr fy[ks Fks\ mÙkj& th gk¡] ugha fy[ks FksA 9- iz'u& ;s ckr cki dSus tkuss fd Vsªu esa cgqr HkhM+ Fkk\ mÙkj& yo dqekj flag crk;k Fkk ge ugha ns[ks FksA 10- iz'u& ifr dk yk'k ns[sk Fks\ dej ls nks VqdM+k gks x;k Fkk\ mÙkj& th gk¡A 11- iz'u& ?kVuk ds le; vkids ifr ds ikl Qksu Hkh Fkk\ iSlk Hkh Fkk ikWdsV esa\ mÙkj& th gkWa Qksu ckn esa iqfyl dks feyk Fkk mlh ls gesa Qksu fd;k Fkk ysfdu ogha yksx eksckbZy j[k fy;k FkkA 12- iz'u& vkidk cky cPpk gSa\ mÙkj& dsoy ,d yM+dh gSa 12&13 lky dk mldk uke jkuh dqekjh gSA 13- iz'u& vkidk lkl llqj thfor gS\ mÙkj& th ugha gSA

1- dksVZ iz'u& D;k flQZ ;gha ckr crkus ds fy, Qksu fd;k Fkk\ mÙkj& th gk¡A 2- dksVZ iz'u& tgk¡ tkrk Fkk rc Hkh vkidks Qksu djrk Fkk\ mÙkj& th gkWa cksyrk FkkA 3- dksVZ iz'u& vkidk ifr rks Vsªu ls dekus ds fy, cjkcj tkrk Fkk\ mÙkj& th gkW 4- dksVZ iz'u& gj jkst cksyrk Fkk fd fVdV dVk fy;s gSa\ mÙkj& jkst ugha ftl fnu Vsªu esa p<rs Fks ml fnu Qksu djrs FksA 5- dksVZ iz'u& rks iSlk [kpZ djds ;s ckr vkidks D;ks a cksyk Fkk\ mÙkj& yo dqekj flag crk;k Fkk fd fVdV dVk fn;s gSa oks vius vkneh gSA 6- dksVZ iz'u&oks ml fnu vkidk ifr dks ysdj x;k Fkk\ mÙkj& th ugha dsoy fVdV dVk dj p<+k fn;s FksA 7- dksVZ iz'u& D;k vkidk ifr cPPkk gSa tks nwljs us fVdV dVk fn;k Fkk\ mUgsa ;gkWa xokgha esa yk ldrh gS\ mÙkj& os muds cguksbZ gSa blfy, fVdV dVk fn;s FksA th gk¡ cqyk;sxs rks vk,xkA 8- dksVZ iz'u& vkidk ifr D;k dke djrk Fkk\ mÙkj& etnwjh dk dke djrk FkkA 9- dksVZ iz'u&vki dksbZ dke djrh gS\ mÙkj& th ughaA 10-dksVZ iz'u& ifr dk yk'k dgk¡ ns[kh Fkh\ mÙkj& iksLVekVZe ds ckn vLirky esa ns[ks FksA 11- dksVZ iz'u& vki dSls ns[ks fd oks dej ls dVk gS\ mÙkj& ogk¡ x;s Fks rks ;s ns[ks FksA lq>ko& esjk dguk gS fd vkids ifr fcuk fVdV ;k=k dj jgs Fks vkSj HkhM+ HkkM+ ds dkj.k fxjs ;s xyr ckr gSa oks viuh ykijokgh ds dkj.k fxjs FksA mÙkj& ,slh ckr ugha gSA Learned counsel for the appellants has further submitted that Lav Kumar Singh has also been examined as A.W.-2 and during cross-examination made by the Railway, he has replied in para-9, which is profitably quoted hereunder:-

9- iz'u& vius D;ksa fVdV dVk dj fn;k D;k ;s Lo;a fVdV dVk ugha ldrs Fks\ fdrus :i;s dk fVdV Fkk\ mÙkj& os esjs cM+s lk<w Fks rks eSaus dgk fd eSa fVdV dVk nsrk gw¡ 60 :i;s dk fVdV dVk fn;kA dksVZ iz'u& mUgsa tkuk Fkk rks vkius D;ksa fVdV dVk;k\ mÙkj& os cSx oxSjg idMs Fks vkSj vkdj ogha LVs'ku esa cSB x;s rks eSaus dgk fd eSa fVdV yk nsrk gw¡A dksVZ iz'u& iSlk fdlus fn;k\ mÙkj& mlh us gesa fVdV dk iSlk fn;kA Learned counsel for the appellants has thus submitted that in view of the judgment passed by the Apex Court in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC 572 (para-29), the deceased was a bonafide passenger 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, the deceased lost his life in an untoward incident as defined under Section 123(c)(2) of the Railways Act.

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 appellants / claimants has thus submitted that the incident took place on 01.05.2017, claim application was filed on 06.02.2018 and the same was dismissed by learned Tribunal on 12.04.2019, as such the claimants are entitled for compensation to the tune of Rs. 8,00,000/- in view of new amendment in Railway Accidents and Untoward Incidents (Compensation) Rules, 1990, 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 for death has been enhanced from Rs. 4,00,000/- to Rs. 8,00,000/- and 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 from the date of filing of the claim application i.e. 06.02.2018 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, Md. Jalisur Rahman has opposed the prayer and has submitted that detail counter affidavit has been filed in this regard. Para-9 & 10 of the counter affidavit may profitably be taken note of:

9. That it is stated and submitted that it is apparent from perusal of the finding arrived by the learned Tribunal that the deceased was not a bonafide passenger. Further, the learned Tribunal has rightly pointed out that the witness Lav Kumar Singh is said to have purchased the ticket for the deceased but the appellant no. 1 has deposed first time in her deposition that he had purchased the ticket, which was lost. But, the claim application is silent on this point. As such, it appears that the said story has been cooked by them afterthought.

10. That it is stated and submitted that since, no one is eye witness and the applicants / appellants failed to prove their case as there was no eye witness to the incident, as such this memo of appeal may be dismissed.

Learned counsel for the respondent-railway has further submitted that the learned Tribunal has rightly dismissed the claim application and this Court may not interfere with the findings recorded by the learned Tribunal.

Considering the rival submissions of the parties, looking into facts and circumstances of the case and in view of the evidence of A.W.-1 and A.W.-2 particularly during cross-examination as well as to the court question, this Court is satisfied that the deceased

Udheshwar Singh was a bonafide passenger, who was travelling from Dehri-on-sone to Daltonganj, who lost his life at Dehri-on-Sone Station near KM 554/38 while travelling on 01.05.2017 at Palamau Express Train No. 13348 UP. Evidence has been brought on record by A.W.-1 particularly cross-examination made in para-5, para-5, 6, 7 of court question and the evidence of A.W.-2 in cross-examination at para-9 and court question to him, which has already been referred above.

Accordingly, the appeal is allowed.

Railway is directed to indemnify Rs. 8,00,000/- along with interest @ 7.5% from the date of filing of the claim application i.e. 06.02.2018 till the date of actual indemnifying the award in favour of the appellants in view of the judgment passed by the Apex Court in the case of Thazhathe Purayil Sarabi & Others (Supra).

(Kailash Prasad Deo, J.) Sunil/-