Smt. Puspita Sarkar & Others vs The Union Of India
2021 Latest Caselaw 1258 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Civil Miscellaneous Appellate Jurisdiction)
                   M.A. No. 450 of 2018
                          ........

Smt. Puspita Sarkar & Others .... ..... Appellants Versus The Union of India, through the General Manager, Eastern Railway, Kolkata .... ..... Respondent

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

For the Appellants : Mr. Vijay Shanker Jha, Advocate.

Mr. Manish Kumar, Advocate.

For the Respondent : Mr. Gautam Rakesh, Advocate.

........

07/15.03.2021.

Heard, learned counsel, Mr. Vijay Shanker Jha assisted by learned counsel for the appellants, Mr. Manish Kumar and learned counsel for the respondent-Railway, Mr. Gautam Rakesh. I.A. No. 149/2020 Learned counsel for the appellants has submitted that the appeal has been preferred with delay of 43 days and for condonation of the same, I.A. No. 149/2020 has been filed stating reason in para- 5 of the interlocutory application.

Learned counsel for the appellants has submitted that the deceased left behind his widow and children and as such, this Court in a benevolent legislation may condone the delay, as the appeal is having merits.

Learned counsel for the respondent - Railway has opposed the prayer and has submitted that counter affidavit has been filed in limitation petition stating therein at para-5 that no plausible and satisfactory reason has been given for condoning the delay.

Considering the rival submissions, this Court is inclined to condone the delay of 43 days in preferring this appeal which has been filed against the dismissal of claim application.

Accordingly, I.A. No. 149/2020 is allowed.

M.A. No. 450 of 2018 On the joint prayer of the parties, the appeal is taken up for final disposal.

Learned counsel for the appellants has submitted that the appellants have preferred this appeal against the award dated

07.03.2018 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA (IIU)/RNC/09/2017, whereby the claim application filed by the claimants / appellants has been dismissed considering that the deceased was not a bonafide passenger and the incident is not an untoward incident as defined under Section 123 (c)(2) of the Railways (Amendment) Act, 1994.

Learned counsel for the appellants has submitted that on 03.10.2016, the deceased Asim Sarkar was going to Raniganj Railway Station from Dhanbad Junction by Gomoh-Asansol E.M.U. Passenger Train in the general bogie after purchasing a 2nd Class Railway Journey ticket. On 03.10.2016, the deceased informed his wife Puspita Sarkar over phone that he had purchased a journey ticket and he is coming home from Dhanbad Junction by Gomoh - Asansol E.M.U. Passenger Train. When the deceased did not reach his home, his wife started searching and in search, she reached Kumbardhubi Railway Station. On 06.10.2016, she found the dead body of her husband at P.M.C.H. Dhanbad after being informed by GRPS/Dhanbad.

Learned counsel for the appellants has submitted that because of heavy rush in the train, the deceased was standing near the gate inside the compartment and has fallen down from running train between KM No. 243/21 & KM No. 243/22 because of pull - push and jostling amongst the passengers. A U.D. Case No. 53/2016 dated 06.10.2016 was registered by GRPS/Dhanbad.

Learned counsel for the appellants has submitted that Puspita Sarkar has been examined as A.W.-1. She has categorically stated in para-2, 3, 4, 5, 6, 8, 9 & 10, which are profitably quoted hereunder:-

2. That on the fateful day i.e. on 03.10.2016, my deceased husband was going to Ranjiganj Railway Station from Dhanbad Junction by the Gomoh - Asaonsol E.M.U. Passenger train after purchasing a IInd class Railway Journey ticket, he boarded in the general bogie of the said train as a bonafide passenger.

3. That the valid journey ticket from Dhanbad Junction to Raniganj Railway Station of my husband has been lost due to in untoward incident.

4. That on 03.10.2016 my deceased husband informed me by the mobile phone that he purchased a valid journey ticket and is coming to his house from Dhanbad Junction by the Gomoh- Asansol E.M.U. Passenger train, but when my husband did not came his house thereafter on 04.10.2016, I started searching then I reached at Kumar Dhubi Railway Station where on information I reached at P.M.C.H. Dhanbad, where I found the dead body of my husband on 06.10.2016.

5. That in course of his journey there was a heavy rush of the passengers gathered in the general bogies, so my deceased husband any how got up the said train and due to rush of the passengers he was standing near the gate inside the compartment and when the said train was running near between the Kalu bathan - Mugma Railway Station Rail KM No. 243/21, he accidentally fall down from the said running train due to by pull & push and jostling amongst the passengers. Resulting he sustained grievous injuries and died on spot.

6. That thereafter on information of the incident the Rail P.P. Kumar Dhubi [GRPS Dhanbad] registered a U.D. Case No. 53/2016 dated 06.10.2016 and prepared inquest report and after due Post-Mortem and identification the police gave the dead body to his family members for final rites and rituals.

8. That my deceased husband died leaving behind him following dependent only.

(i) Puspita Sarkar, W/o deceased Late Asim Sarkar aged about 35 years.

(ii) Ahan Sarkar, S/o deceased Late Asim Sarkar aged about 07 years.

(iii) Dipali Sarkar, M/o Late Asim Sarkar aged about 57 years.

9. That the father of my deceased husband died earlier.

10. That after the death of my husband in train accident, I, son and mother-in-law have filed the claim application for taking of the compensation amount of rupees Eight lakhs with the interest from the date of incident.

This witness has been cross-examined by the Railway and para-3, 5, 7, 9, 10, 12, 14 of which are profitably quoted hereunder:-

3- iz'u& os fdl fnu vius ?kj ls fudys Fks\ mrj&fnukad 03-10-2016 dks lqcg djhc 8-8-30 cts ?kj ls fudys FksA 5- iz'u&muds ikl eksckbZy Fkk\ mrj& th muds ikl eksckbZy Fkk ysfdu tc MsMckMh feyk rks dqN Hkh ugha feykA 7- iz'u& vkids ifr fdl Vªsu ls ykSV jgs Fks bldh tkudkjh vkidks ugha gS vkSj u vkius mUgsa gq, vkrs ns[kk Fkk\ mrj&eSaus ns[kk ugha Fkk ysfdu gesa irk gS D;ksafd muls ckr gqbZ FkhA 9- iz'u& vkt tks 'kiFki= vki nkf[ky fd;s gSa mlds iSjk&5 esa tks fy[ks gSa fd Vªsu esa cgqr HkhM Fkh vkSj ;kf=;ksa dh HkhMHkkM ds dkj.k os Vªsu ls uhps fxj x;s ;s rks euxa<r ckr gSA mrj&th ;s ckrsa eSaus vius ifr ls gh lquh FkhA 10- iz'u& ;s ckr vki fdlls lqus Fks ml vkneh dk uke crkb;s\ mrj& ;s ckr esjs ifr crk;s Fks fd Vªsu esa cgqr HkhM gS vkSj cSBus dh Hkh txg ugha feyk njokts ds ikl [kM+s gksdj ;k=k dj jgs gSaA 12- iz'u&jkr esa vkids ifr ?kj ugha vk;s Fks rks vki D;k fd;s\ mrj&tc cgqr jkr rd ugha vk;s rks eksckby esa Qksu fd;s rks fLop vkQ feyk fQj jkr esa geyksx dqN ugha dj ik;sA fQj nwljs fnu vFkkZr 4 rkjh[k dks ifr dh [kkstchu djus ?kjokyksa ds lkFk fudysA 14- iz'u&vki dksbZ xqe'kqnxh dk dgh dsl Hkh fd;ss\ mrj&D;ksafd vxys fnu lqcg ls /kuckn ds rjQ tks Hkh LVs'ku Fkk mUgsa [kkstus ds fy, fudy x;s Fks bl flyflys esa gjsd LVs'ku esa iwNrs iwNrs /kuckn rd x;s ogkW thvkjih dks crk;s vkSj gjsd LVs'ku esa Qksu uEcj nsdj vk;s FksA rc 6 rkjh[k dks gesa Qksu vk;k fd dksbZ MsMckMh feyk gSA Learned counsel for the appellants has thus submitted that the deceased was a bonafide passenger in view of evidence laid down by the A.W.-1 and in view of the judgment of the Apex Court passed in the case of Union of India vs. Rina Devi, reported in (2019) 3 SCC

572. 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)

Learned counsel for the appellants has further placed the fardbeyan of Anuj Kumar Singh, Trackman, where he has stated that he was informed by his Matt on 06.10.2016 at 7:30 a.m. that between KM 243/21 and KM 243/22, a dead body of a male aged about 35 years is lying, who had fallen down from unknown train.

Learned counsel for the appellants has further submitted that Sudhir Kumar Singh, ASI, RPF, has been examined as C.W.-1 and he has admitted that the deceased has fallen from a running train and nothing has been brought on record by the Railway to disbelieve the case of claimants.

Learned counsel for the appellants has submitted, that so far untoward incident as defined under Section 123 (c)(2) of the Railway Act is concerned, the DRM's Report Exhibit-R1 also establish that the deceased might have been travelling recklessly on the footboard of the train.

Learned counsel for the appellants has submitted that in view of 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 has lost his life in an untoward incident and as such, in absence of any contrary material brought on record by the Railway, the claim application is fit to be allowed. 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-Railway has submitted that the impugned judgment does not require any interference.

Learned counsel for the respondent - Railway has further submitted that the dead body was found on 06.10.2016, whereas, as per case of the claimants, the deceased boarded train on 03.10.2016 and the nature of injury does not prove that the deceased has sustained injury because of fall from the running train and the ticket of the deceased has also not been produced nor mentioned in the inquest report, as such, the claim application has been rightly rejected by learned Tribunal, disbelieving the claim case filed by the claimants.

After hearing learned counsel for the parties, looking into facts and circumstances of the case, the objection which has been raised by the Railway has not been supported by any evidence nor by cross- examination of the doctors, that the dead body of the deceased was

of three days and the post-mortem report Exhibit-A5 states that the deceased died 48 hrs to 72 hrs before the post mortem. Since the dead body was found on the Railway track and as per the DRM's report, the deceased might have been travelling on the footboard of the train and the dead body was not found near the village or house of the deceased, as such, this Court consider the deceased lost his life in an untoward incident as defined under Section 123 (c)(2) of the Act, in view of the evidence laid down by AW-1 in para-5 & 6 of her examination-in-chief and the deceased was a bonafide passenger, in view of evidence laid down by A.W.-1 in para-2, 3, 4 as well as cross-examination in para-9, 10 & 11 as stated above.

Considering the same, the impugned judgment dated 07.03.2018 passed by learned Member (Technical), Railway Claims Tribunal, Ranchi Bench, in Case No. OA (IIU)/RNC/09/2017 is set aside and the instant miscellaneous appeal is allowed.

The Railway is directed to indemnify the award as per Railway Accidents and Untoward Incidents (Compensation) Amendment Rules, 2016, which is applicable from 01.01.2017 to the tune of Rs. 8,00,000/- along with interest @ 7.5% simple per annum from the date of filing of the claim application, till the date of indemnifying the award.

Let the LCR be sent down.

(Kailash Prasad Deo, J.) Sunil/-