Prithibi Nath Singh vs Union Of India Through The General ...
2021 Latest Caselaw 4339 Jhar

                           Miscellaneous Appeal No. 129 of 2015
           Against the Judgment dated 21.07.2014, passed by the Member (Technical), Railway
           Claims Tribunal, Ranchi bench in OA(IIU)/RNC/2010/0059.
           1. Prithibi Nath Singh
           2. Manju Devi.....................                                    Appellants
                                          Versus
           Union of India through the General Manager,
           Eastern Central Railway, Hajipur, Bihar.....................Respondents
                                                 ......
           For the Appellants                    : Mr. Ashok Kumar Singh, Advocate
           For the Respondents                   : Mr. VijaY Kumar Sinha, Advocate
                                                   Ms. Ganga Kumari Kachhap, Advocate
                                                 ......
                                           JUDGMENT

By Court This appeal has been filed under Section 23 of the Railway Claims Tribunal Act, 1987 by the claimants challenging the judgment dated 21.07.2014, passed by the Member (Technical), Railway Claims Tribunal, Ranchi bench in OA(IIU)/RNC/2010/0059, by which the Railway Accident Claims Tribunal has dismissed the claim application of the claimants.

2. A claim application was filed by the claimants stating therein that on 01.04.2009, Mani Shankar Kumar alongwith his friend was travelling in Dhanbad-Gaya Intercity Express from Dhanbad to Gomoh. He was holding a monthly pass. It is the case of the claimants that he fell down from the running train, received fatal injuries and ultimately, expired on 07.04.2009 in course of treatment. It is further case of the claimants, who are the parents of the deceased that they were dependent on the deceased and thus, the amount of compensation to the tune of Rs. 4 lakhs alongwith interest should be granted.

3. Respondent Eastern Central Railway contested the claim by filing written statements. They stated that the incident was not an untoward incident thus, no compensation should be granted to the claimants. It is their case that the report suggests that the deceased was negligent while travelling in the said train. It is further their case that the deceased wanted to spit outside the train for which he leaned out when he was struck by a pole resulting in a fall. The deceased died due to the said injury, which according to the Railways, is a self-inflicted injury which debars the claimants from claiming compensation. The Railways had taken plea that there was no fault on the part of the Railway Administration, so the claimants are not entitled to any benefit.

4. On the basis of the pleadings, issues were framed by the Tribunal, which are as under:-

"(1) Whether Mani Shankar Kumar, S/o Prithibi Nath Singh was a bonafide passenger as alleged?

(2) Whether any untoward incident as defined under Section 123 (c) (2) of the Railways Act, 1989 occurred to Mani Shankar Kumar, S/o Prithibi Nath Singh while travelling in Dhanbad-Gaya Intercity Express on 01.04.2009 near Tetulmari Railway station?

(3) Whether the Dy.SS/SS' report is filed?

(4) Whether the Monthly Pass (M.S) is filed?

(5) Whether the applicants are entitled for the compensation as claimed and other relief if any?"

5. In support of their claim, the applicant-claimants have produced the photocopies of certain documents, i.e. FIR, Fardbeyan of Sri Ravi Shankar, Final Report and P.M. Report in two pages. They also filed the original and certified copies of FIR & Fardbayan of Sri Ravi Shankar- Ext.- A1, Final Report in three sheets Ext.-A2, Photo Copy of Inquest Report and P.M. Report in two pages Ext.-A3.

6. The Railways, though did not adduce any witness, but furnished the original/certified copies of the Station diary Report of SM/Tetulmari/Dhanbad and Report of Sri S.B.Sinha, CCI (HQ), which were marked as exhibits.

7. The Tribunal, after hearing the parties and after considering the evidence, decided Issue No. 2 against the claimants, holding that the deceased died because of his own act of recklessness and carelessness and the injury, which he sustained, is self-inflicted in terms of Section 124 A of the Railways Act. The Tribunal further held that the incident is not an untoward incident under Section 123(c) (2) of the Railways Act, thus the claimants are not entitled to receive any benefit. The Tribunal further held that since the deceased did not die of an untoward incident, there is presumption that the victim is not a bonafide passenger in absence of the evidence of journey ticket. On this ground, the Tribunal dismissed claim application of the claimants.

8. Challenging the same, counsel appearing for the claimants- appellants submits that the Tribunal misdirected himself while passing the impugned order. He submits that the injury which the deceased has sustained cannot be said to be self-inflicted. He submits that even if the deceased was careless, the claimants are entitled to receive compensation. He submits that Section 123 (c) (2) and Section 124 A of the Railways Act, 1989 (herein referred to as the Act), has been wrongly interpreted and on the facts of the case, the claim application could not have been dismissed. He further submits that there was specific plea taken by the claimants that the deceased was travelling with monthly pass and in view of the aforesaid specific plea, the Tribunal could not have concluded that the deceased was

not a bonafide passenger. He further submits that the Tribunal has held that the deceased was not a bonafide passenger considering the fact that the co-passenger, who was brought as a witness, could not produce his own tickets. He submits that this finding is perverse and is not in accordance with law. He ultimately, submits that on the facts of the case and the law, the appellants are entitled to receive the benefits and the claim application needs to be allowed.

9. Counsel appearing on behalf of the Railways submits that the injury sustained by the deceased is self-inflicted. He submits that the deceased was utmost negligent and that being so, the claimants are not entitled to receive any benefit. He lastly submits that since the claimants have failed to produce the monthly pass, it will be presumed that the deceased was travelling without ticket and thus, was not a bonafide passenger.

10. After hearing the counsel for the parties, I have gone through the impugned judgment and the entire lower court records. First, I would like to discuss the manner in which the accident taken place. From the claim application and also from the evidence, which has been brought on record, I find that it is clear that the deceased was travelling with his friend in the Dhanbad-Gaya Intercity Express from Dhanbad to Gomoh. From the FIR, lodged by the eyewitness, it is clear that when the train reached near the station when the deceased alongwith the informant went near the door of the train and when the train slowed down the deceased leaned out and tried to spit, when his head got dashed with a pole. The statement made in the FIR has been supported by the said witness. Thus, from the manner of accident it can be said that the deceased was negligent and was not cautious enough. Now, the question is as to whether being negligent, is a ground to reject the claim application? The Tribunal held that under Section 124 A of the Act, the claimants are not entitled to receive any benefit. Section 124 A deals with compensation on account of untoward incident. The proviso of the Section provides that no compensation shall be paid when the passenger dies or suffers injuries due to five acts, mentioned in the said proviso. For better appreciation, it is necessary to quote Section 124 & 124 A of the Act alongwith the proviso, which is quoted herein below:-

"S.124. Extent of liability - When in the course of working a railway, an accident occurs, being either a collision between trains of which one is a train carrying passengers or the derailment of or other accident to a train or any part of a train carrying passengers, 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 has suffered a loss 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 a passenger dying as a result of such accident, and for personal injury and loss, destruction, damage or deterioration of goods owned by the passenger and accompanying him in his compartment or on the train, sustained as a result of such accident.

Explanation.--For the purposes of this section "passenger" includes a railway servant on duty.

S.124A. 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 dependant 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.]"

11. The word "untoward incident" is defined in Section 123 (c) (1) (2) of the Act, which reads as follows:-

"S. 123. Definitions. - In this Chapter, unless the context otherwise requires,-

(a) ........

(b)...........

(c) "untoward incident" means--

(1) (i) the commission of a terrorist act within the meaning of sub- section (1) of section 3 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(ii) the making of a violent attack or the commission of robbery or dacoity; or

(iii) the indulging in rioting, shoot-out or arson,

by any person in or on any train carrying passengers, or in a waiting hall, cloak room or reservation or booking office or on any platform or in any other place within the precincts of a railway station; or (2) the accidental falling of any passenger from a train carrying passengers.]"

12. From Section 123 (c) (2) of the Act, it is clear that an accidental fall of a passenger from the train is an untoward incident. Now, by virtue of the proviso of Section 124 A, if a person commits or attempts to commit suicide or inflicted self-injury, his heirs are not entitled to receive compensation even if the incident is an untoward incident. In this case, the deceased fell from the train after being hit by a pole as he leaned out to spit. Thus, the fall from the train is accidental and thus, is covered under Section 123 (c) (2) of the Railways Act, 1989 and qualifies to become an untoward incident.

13. Now, it is the contention of the Railways that the said injury is a self-inflicted injury, so even if it is an untoward incident, the claimants are not entitled to receive any benefit.

14. Self-inflicted injury means that the person inflicted the injury on himself. One of the basic components of the self-inflicted injury is that the person, who is inflicting the injury upon himself must have the intention to inflict such injury. If an injury is caused without there being any intention to cause the injury, it cannot be said that it is a self-inflicted injury, rather it can be said that it is an accident. The Hon'ble Supreme Court, in the case of "Union of India- versus- Rina Devi, reported in (2019) 3 SCC 572" while setting aside the views of Kerala High Court & Bombay High Court, in Para-25 of the judgment, has held that the concept of "self-inflicted injury" would require intention to inflict such injury and not mere negligence of any particular degree. The Supreme Court further applied the principle of "no fault theory" and has held that merely on the plea of negligence of the victim as a contributory factors cannot attract the proviso of Section 124 A of the Railways Act. It is necessary to quote Para-25 of the aforesaid judgment, which reads as follows:-

"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 contributor negligence which cannot be done in the case of liability based on "no fault theory". We may in this connection refer to the judgment of this Court in United India Insurance Co. Ltd. V. Sunil Kumar (2019) 12 SCC, 398, laying down that plea of negligence of the victim cannot be allowed in claim based on "no fault theory" under Section 163-A 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 124-A merely on the plea of negligence of the victim as a contributing factor."

14. The case in hand, as argued by the counsel for the respondent in this case and as held by the Tribunal is that there was absolute negligence on the part of the deceased, which caused accident. Applying the law laid down by the Hon'ble Supreme Court in the case of "Union of India versus- Rina Devi" (supra), I find that the negligence of the victim, which contributed towards his death, cannot be said to be self-inflicted injury, thus the proviso will not be attracted in this case. I thus, hold that the finding of the Tribunal that the claimants are debarred from claiming compensation in terms of Section 124 A of the Railways Act, 1989, needs to be set aside. Accordingly, it is set aside. Thus, I hold that the claimants are entitled to receive compensation.

15. On the fact whether the deceased was a bonafide passenger or not, I find that the specific plea has been taken that the deceased was travelling with monthly pass, thus, the onus which was on the part of the claimants, has been discharged. It is case of the claimants that at the time of the incident the monthly pass of the deceased got lost. The Hon'ble Supreme Court in the aforesaid judgment has held that mere absence of ticket with the injured or the deceased will not negate the claim that the deceased was a bonafide passenger. The initial burden is upon the claimants, which can be discharged by filing an affidavit of the relevant facts and then the burden will be shifted on the Railways and the issue can be decided on the facts of the case.

16. In this case, I find that the initial burden has been discharged by the claimants as it is the case of the claimants that the deceased was travelling with monthly pass. Non-availability of the monthly pass after the accident with the deceased cannot be a ground to presume that the deceased was travelling without a ticket. Further, the Tribunal adjudged the conduct of the friend of the deceased, who was travelling with him to conclude that the deceased was travelling without ticket. This approach is also erroneous. The said witness, who was travelling with the deceased, could not produce his own ticket that does not mean that the deceased was also travelling without a valid ticket or valid pass. The inference and the analogy drawn by the Tribunal is not proper. Thus, this Court holds that there is nothing on record to suggest that the deceased was not travelling with valid tickets. This issue is also decided in favour of the claimants.

17. Now, when both the issues have been decided in favour of the claimants, I hold that the claimants are entitled for the compensation alongwith interest. In view of the judgment passed by the Hon'ble Supreme Court in the case of "Thazhathe Purayil Sarabi & Others- versus- Union of India,

reported in (2009) 7 SCC 372', I hold that the claimants are entitled to get interest on the amount of compensation @ 6% from the date of application till the date of the Award and @ 9% thereafter till the payment is made. Thus, I direct the Railway Claims Tribunal to compute the amount of compensation alongwith interest. In view of the judgment of "Union of India" (Supra), It is directed that the amount of compensation will be payable as applicable on the date of accident with interest aforementioned.

18. If the amount, so calculated, is less than the amount prescribed as on the date of the Award of the Tribunal, the claimants will be entitled to higher of the two amounts.

19. This miscellaneous appeal stands allowed.

(Ananda Sen, J) Jharkhand High Court, Ranchi Dated the 23rd November, 2021 NAFR/Mukund/cp. 3